Raza v Vermunt (RMV Management Pty Ltd)
[2023] NSWPICMP 169
•1 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Raza v Vermunt (RMV Management Pty Ltd) [2023] NSWPICMP 169 |
| APPELLANT: | Uzman Raza |
| RESPONDENT: | RMV Management Pty Ltd |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 1 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Right lower extremity injury; appellant alleged error in the assessment; the Appeal Panel found that the Medical Assessor correctly approached the assessment of impairment of the right lower extremity in accordance with the guidelines because he has selected, based on his findings on clinical examination on the day of assessment upon which he is entitled to rely, the method of assessment that yielded the highest impairment rating, namely range of motion; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 December 2022 Mr Uzman Raza (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tomassino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 November 2022.
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 sought a re-examination. 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 the Appeal Panel, for the reasons set out below, did not find error and absent a finding of error, the Appeal panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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: 29 October 2015
· Body parts/systems referred: Right lower extremity
Scarring (TEMSKI)
· Method of assessment: Whole person impairment”
The Medical Assessor issued a certificate certifying impairment as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality
Sub-total/s % WPI (after any deductions in column 6)
Right lower extremity
29/10/15
Chapter 3
Pages 13-23
Chapter 17
Pages 523- 564
6%
Nil
6%
Scarring
(TEMSKI)
29/10/15
Chapter 14
Pages 73-74
2%
Nil
2%
Total % WPI (the Combined Table values of all sub-totals)
8%
The worker appealed. The appeal concerns the assessment of the right lower extremity. There is no complaint on appeal by either party about the assessment for scarring.
In summary, the appellant submitted that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made a demonstrable error as follows:
(a) Concluding that the appellant’s arthritis assessed in Dr Maniam’s report dated 4 May 2022, Associate Professor Courtenay’s report dated 7 July 2022 and the subject MAC was a diagnosis based estimate.
(b) Alternatively, if it is found that the Medical Assessor did not so err, then he erred in concluding that Table 17-2 indicated that diagnosis based estimates and the appellant’s range of motion (ROM) cannot be combined as the appellant’s ROM does not fall under “ROM Ankylosis” as Ankylosis was not found.
In summary, RMV Management Pty Ltd (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and nor did he make a demonstrable error and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, have regard to the radiological investigations, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his own clinical judgement. He must make that assessment based on the criteria in the Guidelines.
The Medical Assessor took a history broadly consistent with the other evidence that was before him.
He had regard to the special investigations as follows:
“X-ray right ankle, 6/06/2016 – Dr Healey
Two screws are seen transfixing the medial malleolus.
MRI right ankle, 13/07/2017 – Dr Quigley
Evidence of previous surgery with ongoing metal artefact in the distal fibula in keeping with the appearance of the previous x-rays from November 2016. Abnormal anterior talo-fibular ligament and calcaneal fibular ligament. Abnormal signal in the deltoid ligament. Tibialis posterior tenosynovitis.
MRI right foot, 18/06/2019 – Dr Mbakada
Moderate to advanced Achilles tendinopathy. Previous ATFL surgery with what appears to be two anchor screws transfixing two anchor sutures. Scarring of the deltoid ligament suggesting previous injury. Healed calcaneal osteotomy with intact metalwork in situ.
CT right foot, 18/06/2019 – Dr Younis
Mild osteoarthritic changes involving medial tibio-talar joint showing mild reduced joint space and subarticular sclerosis.
MRI right ankle, 8/06/2021 – Dr Abdelrahman
Multiple susceptible artefacts with anchors at lateral malleolus and a fixating screw at the calcaneus bone.”
He conducted a physical examination and recorded his findings as follows:
“He is a man of stated age of medium build. He walks with slight stiffness in the right leg.
When standing erect there is no deformity. When barefoot he can walk on heels and toes but with hesitancy and slight favouring of the right leg. He partially squats.
Examination of the right leg reveals 1½cm wasting of the right calf compared to the non-injured limb.
There are multiple surgical scars. There are two 5cm scars and a 2cm scar on the anterolateral aspect of the ankle. The scars are pigmented. There is keloid formation of one of the scars. On the medial aspect of the ankle there are two 6cm scars which form a ‘Y’ shape. There are trophic changes in these scars and the scars are pale with colour contrast with the surrounding skin.
There is no swelling in the ankle and there is generalised tenderness, more so over the lateral ligaments. Ankle and hindfoot movements were measured with a goniometer. The left ankle and hindfoot movements were normal whilst in the right ankle they were restricted.
Ankle and Hindfoot Movements
Movement
Range
% Lower Extremity Impairment
Extension
5°
7
Flexion
25°
0
Inversion
8°
5
Eversion
5°
2
Total
14%
He summarised the injury and diagnosis as follows:
“As a result of the fall on 29 October 2015 Mr Raza fractured the right ankle for which he had multiple surgical procedures as outlined above.”
He explained his assessment of impairment as follows:
“My opinion and assessment of whole person impairment
I have assessed 14% lower extremity impairment due to restricted right ankle and hindfoot movements(1) (see 10b). 14% lower extremity impairment equates with 6% whole person impairment.
There is scarring which under the best-fit principle of the TEMSKI classification best fits the descriptors for 2% WPI.
An explanation of my calculations (if applicable)
AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:
(1) Page 537, Table 17-11.”
He made brief comment on the other medical evidence that was before him as follows:
“I note the report of Dr V Maniam dated 4 May 2022. I found a different range of movement of the ankle and hindfoot. Dr Maniam assessed ankylosis of the subtalar joint. There is no clinical evidence of ankylosis of that joint on today’s examination.
He also assessed arthritis in the right ankle. Although there is evidence of arthritis, the range of movement gives a higher impairment. As per Table 17-2 of the AMA 5 Guides, range of movement cannot be combined with diagnosis-based estimates.
I found the same impairment for scarring.
I note the report of A/Professor Courtenay. I found a similar impairment for restricted ankle and hindfoot movements. I found the same impairment for scarring.”
The appeal concerns the approach to the evaluation of impairment of the lower extremity.
The Medical Assessor is required to make an assessment in accordance with the Guidelines.
The Guidelines prescribe “the approach to the assessment of the lower extremity” as follows:
“3.2 Assessment of the lower extremity involves physical evaluation, which can use a variety of methods. In general, the method should be used that most specifically addresses the impairment present. For example, impairment due to a peripheral nerve injury in the lower extremity should be assessed with reference to that nerve rather than by its effect on gait.
3.3 There are several different forms of evaluation that can be used, as indicated in AMA5 sections 17.2b to 17.2n (pp 528–54). AMA5 Table 17-2 (p 526) indicates which evaluation methods can be combined and which cannot. It may be possible to perform several different evaluations, as long as they are reproducible and meet the conditions specified below and in AMA5. The most specific method of impairment assessment should be used. (Please note that in Table 17-2, the boxes in the fourth row (on muscle strength) and seventh column (on amputation) should be closed boxes rather than open boxes ).
3.4 It is possible to use an algorithm to aid in the assessment of lower extremity impairment (LEI). Use of a worksheet is essential. Table 3.5 at the end of this chapter is such a worksheet and may be used in assessment of permanent impairment of the lower extremity.
3.5 In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA5 Table 17-2 ‘Guide to the appropriate combination of evaluation methods’, using the Combined Values Chart on pp 604–06 of AMA5.
3.6 When the Combined Values Chart is used, the assessor must ensure that all values combined are in the same category of impairment rating (ie percentage of WPI, percentage of lower extremity impairment, foot impairment percentage, and so on). Regional impairments of the same limb (eg several lower extremity impairments) should be combined before converting to a percentage of whole person impairment (WPI).
3.7 AMA5 Table 17-2 (p 526) AMA5) needs to be referred to frequently to determine which impairments can be combined and which cannot. The assessed impairment of a part or region can never exceed the impairment due to amputation of that part or region. For the lower limb, therefore, the maximum evaluation is 40% WPI, the value for proximal above-knee amputation.”
Paragraph 3.24 provides as follows:
“3.24 If arthritis is used as the basis for assessing impairment, then the rating cannot be combined with gait disturbance, muscle atrophy, muscle strength or range of movement assessments. It can be combined with a diagnosis-based estimate (AMA5 Table 17-2, p 526).”
Here the Medical Assessor has found arthritis but has made an assessment on the basis of ROM because it yielded the highest impairment rating. This is entirely correct.
When the Medical Assessor was referring to Dr Maniam’s report of 4 May 2022, the Medical Assessor stated:
“He also assessed arthritis in the right ankle. Although there is evidence of arthritis, the range of movement gives a higher impairment. As per Table 17-2 of the AMA 5 Guides, range of movement cannot be combined with diagnosis-based estimates.”
The Medical Assessor’s reference to diagnosis based estimates appears to be an obvious error as he made no assessment on the basis of diagnosis based estimates and nor did any of the other medical experts whose opinions are in evidence. He was clearly talking about the finding of arthritis which cannot be combined with ROM.
In addition, the Medical Assessor’s clinical finding of no ankylosis was open to him on an independent assessment on the day of examination and there is no error.
The Medical Assessor has correctly approached the assessment of impairment of the right lower extremity in accordance with the guidelines because he has selected, based on his findings on clinical examination on the day of assessment upon which he is entitled to rely, the method of assessment that yielded the highest impairment rating, namely ROM. The Appeal Panel can accordingly discern no error in the assessment and will therefore confirm the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 November 2022 should be confirmed.
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