Scavera v A & G Formwork Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Scavera v A & G Formwork Pty Ltd [2023] NSWPICMP 631
APPELLANT:	Giovacchino (Jack) Scavera
RESPONDENT:	A & G Formwork Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	30 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Injury to face, trigeminal nerve and visual system; appeal by worker on the basis that the lead assessor had removed part of the assessment of whole person impairment made by non-lead assessor; Panel held that lead assessor had no power to remove part of the assessment made by non-lead assessor and assessment by non-lead assessor was within the terms of the referral; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 September 2023 Giovacchino (Jack) Scavera (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. Medical Assessor Brian J Williams, ENT surgeon (Otolaryngologist), was appointed to assess ear, nose, throat and related structures and Medical Assessor Kerrie Meades, Ophthalmologist, was appointed to assess the visual system.
On 10 August 2023, the Medical Assessment Certificate (MAC) of Medical Assessor Williams was issued. On the same date, the MAC of Medical Assessor Meades was issued.
The parties subsequently agreed for the assessments to be consolidated. Medical Assessor Williams was appointed as the Lead Medical Assessor, and Medical Assessor Meades was appointed Non-Lead Medical Assessor.
On 28 August 2023, the Lead Assessor MAC of Medical Assessor Williams was issued.
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, 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) and AMA 4 for visual system impairment.

RELEVANT FACTUAL BACKGROUND

The appellant made a claim for an assessment of a work injury damages threshold and for the purposes of s 39 as a result of an injury on 17 September 1999. The appellant was employed as a labourer and driver and was loading a truck on 17 September 1999 when a bar on the truck came loose and struck him in the face.
This claim was in respect of injuries to the ear, nose, throat and related structures and the visual system. Medical Assessor Brian J Williams was appointed to assess ear, nose, throat and related structures and Medical Assessor Kerrie Meades was appointed to assess the visual system.
On 10 August 2023, the MAC of Medical Assessor Williams was issued. On the same date, the MAC of Medical Assessor Meades was issued. The parties subsequently agreed for the assessments to be consolidated.
In an Amended Referral for Assessment of Permanent Impairment to a Medical Assessor (the Amended Referral) dated 14 August 2023, the body parts referred were “Ear, Nose Throat and related structures, Visual system”. Medical Assessor Kerry Meades was appointed non-lead assessor for the visual system and Medical Assessor Brian Williams was appointed lead assessor for “ENT and related structiures”.
In the MAC issued on 28 August 2023, the lead assessor, Medical Assessor Williams, assessed 8% WPI for facial disfigurement, 4% WPI for the trigeminal nerve and 10% WPI of the visual system (as assessed by Medical Assessor Meades). Medical Assessor Williams calculated a combined total WPI of 20% as a result of the injury on 17 September 1999.

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 request that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
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 because there was sufficient evidence on which 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.
The appellant’s submissions include the following:
(a)    the assessment of the impairment in the visual system was referred to Medical Assessor Kerrie Meades. Medical Assessor Meades examined the appellant on 19 July 2023 and issued a certificate on 10 August 2023. No appeal was lodged by any party in respect of that assessment;
(b)    Medical Assessor Meades conducted an assessment applying Chapter 8 of AMA 4. This was consistent with the Guidelines. The degree of impairment resulting from the visual system was certified as 14% WPI;
(c)    the assessment of ENT and related structures was referred to Medical Assessor Williams. Medical Assessor Williams examined the appellant on 26 July 2023 and issued a certificate on 10 August 2023 in which he certified 12% WPI made up of 8% for facial disfigurement and 4% for the trigeminal nerve. No appeal was lodged in respect of that certificate;
(d)    Medical Assessor Williams was appointed as lead assessor and issued a combined certificate on 28 August 2023. The certificate certified a 20% WPI. When assessing the impairment Medical Assessor Williams did not combine the 14% certified by Medical Assessor Meades but only combined 10%. By doing so Dr Williams made a demonstrable error and applied incorrect criteria;
(e)    the role of the lead assessor is found in paragraph 1.20 of the Guidelines. The lead assessor is nominated to coordinate and calculate the final degree of permanent impairment as a percentage of WPI resulting from individual assessments. In reality this only authorises the lead assessor to make the calculation combining the individual assessments as made by the individual assessors. There is no power to review the assessments of the other assessors for accuracy or error. If the individual assessor has made an error the remedy is for the disaffected party to lodge an appeal or to seek reconsideration. Neither occurred in this case;
(f)    Medical Assessor Meades was asked to assess impairment of the visual system. She made such an assessment and certified what the impairment of the visual system was. The lead assessor had no power to question the assessment or to make his own calculation. The lead assessor had not been asked to assess the visual system. In this case Medical Assessor Williams was not qualified to make an assessment of the visual system;
(g)    the basis on which Medical Assessor Williams changed the assessment was said to be that the assessment of enophthalmos, numbness and scarring using paragraph 5 AMA4 [sic] page 8/222 was not referred to Medical Assessor Meades by the Commission’s referral. If this conclusion was correct, it could be the basis for an appeal under s 327. The lead assessor does not have the power to determine such an appeal;
(h)    in any event, the conclusion reached by Medical Assessor Williams was not correct. Chapter 10 of the Guidelines provides that assessment of the visual system is by applying AMA 4 Chapter 8 (pp 209-22). Medical Assessor Meades applied s 8.5 on page 222 of AMA 4 to make the assessment that Medical Assessor Williams excluded. Section 8.5 is included within the pages expressly included by the Guidelines for assessing visual impairment. Furthermore express reference is made to s 8.5 at paragraph 10.7 where it is clarified that s 8.5 allows an additional impairment of 10% WPI, not 10% impairment of the visual system;
(i)    section 8.5 provides for the addition of additional impairment for matters that affect the visual system in ways other than ocular function. Thus things like cosmetic deformity is an impairment of the organs that make up the visual system. The paragraph recognises that the visual system may be impaired in ways other than the results of a simple test of the visual acuity and visual field and diplopia as described in ss 8.1, 8.2 and 8.3;
(j)    the referral to Medical Assessor Meades was to assess the visual system. That was precisely what Medical Assessor Meades did. The assessment was made only applying the terms of the Guidelines for assessing the visual system and only considered matters within the correct chapter. It follows that all of the assessment of 14% WPI was within the terms of the referral being to assess the visual system. Medical Assessor Williams was wrong when he found otherwise;
(k)    when the 14% found by Medical Assessor Meades is combined with the 4% and 8% assessed by Medical Assessor Williams, the correct WPI is 23%, and
(l)    the certificate of 28 August 2023 should be revoked and a new certificate issued that certifies a 23% WPI.
The respondent’s submissions included the followimg:
(a)    the appellant submitted that Medical Assessor Williams, as lead assessor, did not combine the 14% WPI certified by Medical Assessor Meades, and only combined 10% WPI;
(b)    the appellant submitted Medical Assessor Meades had been asked to assess impairment of the ‘visual system’ which she did, and Medical Assessor Williams altered Medical Assessor Meades’ assessment on the basis “enophthalmos, numbness and scarring” using paragraph 8.5 AMA4 page 8/222 was not referred to Medical Assessor Meades by the Amended Referral;
(c)    Medical Assessor Meades assessed 10% WPI vision Table 6, page 8/218. Medical Assessor Meades also assessed 4% WPI for enophthalmos, numbness and scarring using paragraph 8.5 AMA4 page 8/222;
(d)    the Amended Referral requested Medical Assessor Meades to assess the appellant’s “visual system”. There was no mention in the Amended Referral to an assessment of the enophthalmos, numbness and scarring. Accordingly, Medical Assessor Meades’ assessment of the referred “visual system” was only included in the lead assessment;
(e)    Medical Assessor Williams explained why his assessment did not include Medical Assessor Meade’s assessment for enophthalmos, numbness and scarring;
(f)    the reasons provided by Medical Assessor Williams indicated he properly applied the relevant Guidelines and the paragraphs in the AMA 4 and his assessment was not affected by the application of incorrect criteria or demonstrable error;
(g)    the Appeal Panel should not be satisfied the Medical Assessor Williams made his assessment based on incorrect criteria, nor does the MAC contain a demonstrable error, simply because the Medical Assessor had come to a different conclusion;
(h)    Medical Assessor William’s combined assessments of 20% wpi (ear, nose, throat and related structures and visual system) was final;
(i)    the submissions made by the appellant did not disclose any demonstrable error on the face of the MAC and/or the Medical Asessor’s assessment was based on incorrect criteria, and
(j)    the MAC of Medical Assessor Williams dated 28 August 2023 should be confirmed.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Copensation Commission of New South Wales [2013] the form of the words used in
s 327(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In Queanbeyan Racing Club v Burton [2021] NSWCA 304, Basten JA, with whom Leeming JA and mcCallum JA agreed, said at [22]: “…it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. At Basten JA said:
“32…It would have been impermissible for the Appeal Panel to reconsider an element of the assessment which had not been the subject of the appeal to it.
33. To suggest that once the Panel has determined to set aside the certificate, it was “required to undertake a fresh assessment of the plaintiff’s whole persom impairment in accordance with the Guides” is also erroneous. The fact that the Panel decided to set aside the certificate did not expand the scaope of its appeal function: rather, setting aside the certificate was the necessary consequence of the proper exercise of the appeal function.”
The appellant noted that the lead assessor, Medical Assessor Williams, issued a a combined certificate certifying a 20% WPI on 28 August 2023. The appellant submitted that when assessing the impairment Medical Assessor Williams did not combine the 14% certified by Medical Assessor Meades but only combined 10% and by doing so made a demonstrable error and applied incorrect criteria.
The appellant referred to paragraph 1.20 of the Guidelines which provides:
“In the case of a complex injury, where different medical assessors are required to assess different body systems, a ‘lead assessor’ should be nominated to coordinate and calculate the final degree of permanent impairment as a percentage of WPI resulting from the individual assessments”.
Chapter 10 headed “The Visual System” in the Guidelines provides: “AMA 4 Chapter 8 (p 209) applies to the assessment of permanent impairment of the visual system, subject to the modifications set out below”.
Paragraph 10.1 of the Guidelines provides: “The visual system must be assessed by an ophthalmologist”.
Paragraph 10.7 of the Guidelines provides: “In AMA 4 Section 8.5 ‘Other conditions’ (p 222), the reference to ‘additional 10% impairment’ means 10% WPI, not 10% impairment of the visual system.”
The appellant argued that paragraph 1.20 of the Guidelines only authorised the lead assessor to make the calculation combining the individual assessments as made by the individual assessors and there was no power to review the assessments of the other assessors for accuracy or error. The appellant submitted that if the individual assessor had made an error, the remedy was for the disaffected party to lodge an appeal or to seek reconsideration and neither had occurred in this case.
The respondent submitted that the Amended Referral requested Medical Assessor Meades to assess the appellant’s “visual system” and that there was no mention in the Amended Referral to an assessment of the enophthalmos, numbness and scarring. The respondent argued that accordingly, Medical Assessor Meades’ assessment of the referred “visual system” was only included in the lead assessment and Medical Assessor Williams had explained why his assessment did not include Medical Assessor Meake’s assessment for enophthalmos, numbness and scarring.
In his MAC dated 28 August 2023, under “Method of assessment: Whole Person Impairment – as per PIC referral”, Medical Assessor Williams noted:
“Dr K Meades assessed 10%WPI vision Table 6, page 8/218.
Dr K Meades also assessed enophthalmos, numbness and scarring using paragraph .5 [sic] AMA 4 page 8/222 but this was not referred to Dr Meades by the PIC referral, and AMA 4 paragraph 8.5 does not include numbness. Accordingly, her assessment of the referred visual system is included in this lead assessment”.
Medical Assessor Williams, under “Reasons for Assessment” wrote:
“Mr Scavera has a history of frank injury to his right face, orbit and right eye with fractures of the right orbital walls and injury to the right infra-orbital nerve, a branch of the right trigeminal nerve. This has resulted in facial scarring, right enophthalmos, right eyelid ptosis, depression of the right malar region of the face, and reduced sensation/numbness in the distribution of the right infra-orbital nerve.
Facial Disfigurement
He gave no history of prior facial disfigurement.
Using the NSW workers compensation guidelines for the evaluation of permanent
impairment, 4th edition, 1st April 2016, reissued 1.3.21, Chapter 6, para 6.4, Table 6.1
Class 3 allows 11-15% WPI where there is absence of normal anatomic part or area of the face. This criteria is not met.
Class 2 allows 6-10% WPI where there is loss of supporting structure of part of the face, with or without cutaneous disorder. This criteria is met.
He has loss of supporting structure of part of the face with depression of the malar region of the face and loss of orbital support for the right eye causing obvious enophthalmos. It is associated with facial scarring. I have assessed him at 8% WPI”.
Medical Assessor Meades, in the MAC dated 10 August 2023, made the following findings on physical examination:
“On examination Mr Scaveras vision in right eye was 6/12 and left eye 6/6 unaided;6/9 in right eye with a small hypermetropic correction. His reading vision was N 10 in right eye and N4 in left with reading glasses. He was right eye dominant with normal pupils,extraocular muscles showing a small exophoria. He had pain on looking to the right. He had no ptosis, minimal enophthalmos on the right. His left visual field was normal; right visual field mildly constricted. Diplopia chart showed double vision in the right peripheral field, mostly greater then 30 degrees, superior, temporal and inferior. He had fine linear scars of eyelids and a more thickened scar on right cheek that was mildly anaesthetic. The rest of his eye examination was within normal limits,including retinal examination. His intraocular pressures were 9 on right and 10 on left.”
Under “Summary of injuries and diagnoses” Medical Assessor Meades wrote:
“Mr Scavera has;
1. mild loss of vision in right eye
2. lacerations of upper and lower eyelids now minimal
3. blowout fracture of right orbit causing diplopia on looking to right greater then 30 degrees, slight enophthalmos and slight anaethesia to scar on right cheek.”

Medical Assessor Meades assessed 10% WPI for vision (Table 6 page 8/218) and 4% WPI for enophthalmos, numbness and scarring (section 8.5 page 8/222). In making that assessment Medical Assessor Meades took into account the appellant had minimal residual facial scarring, numbness and enophthalmos.
Chaper 8 of AMA 4 sets out the criteria and a method of evaluating permanent impirments of the visual system. On page 209 at the beginning of Chapter 8, the following was noted:
“Permanent deformities of the orbit, such as scars or cosmetic defects that do not alter ocular function, also may be considered to be factors causing whole person impairment as high at 10%.”
Section 8.5 of AMA 4 on page 222 provides:
“Other Conditions
Up to an additional 10% impairment may be combined with the whole person impairment related to the visual system for such conditions as permanent deformities of the orbit, scars, and other cosmetic deformities that do not otherwise alter ocular function. Combine the estimates by means of the Combined Values Chart”. (emphasis in original)
The Appeal Panel noted that enophthalmos is a posterior displacement of the eyeball within the orbit due to either enlargement of the bony orbit and/or reduction of the orbital content.
As noted above, Paragraph 10.7 of the Guidelines provided that in AMA 4 Section 8.5 ‘Other conditions’ (p 222), the reference to “additional 10% impairment” means 10% WPI, not 10% impairment of the visual system.
The appellant submitted that Medical Assessor Williams excluded the assessment Medical Assessor Meades made under s 8.5 on page 222 of AMA 4 even though s 8.5 was included within Chapter 8 of AMA 4, that is within the Chapter which the Guidelines provided should be applied to the assessment of permanent impairment of the visual system.
The Appeal Panel accepted that Medical Assessor Williams had changed the assessment of WPI made by Medical Assessor Meades by removing the assessment made under s 8.5 of AMA 4. The Appeal Panel considered that the lead assessor’s role was limited to co-ordinating the assessment and making the calculation combining the individual assessments of the various assessors. Medical Assessor Williams did not have the power to review the assessment of Medical Assessor Meade for accuracy or error or to remove parts of the assessment made by Medical Assessor Meades.
Medical Assessor Williams considered that enophthalmos, numbness and scarring were not referred to Medical Assessor Meades for assessment. The Appeal Panel accepted the appellant’s submission that it was not Medical Assessor Williams’ role to determine the terms of the referral.
The respondent argued that Medical Assessor Meades assessed parts or systems not referred to her for assessment.
The Amended Referral provided that Medical Assessor Meades, as non-lead assessor, was to assess the visual system and Medical Assessor Williams, as lead assessor, was to assess ENT and related structures.
There is no definition of visual system in the Guidelines, but the Guidelines provided that AMA 4 Chapter 8 (p 209) applied to the assessment of permanent impairment of the visual system. Chapter 8 in AMA 4 set out various sections, Tables and Figures to be used in assessing the visual system including s 8.5.
The Appeal Panel was satisfied that Medical Assessor Meades, in assessing 4% WPI for enophthalmos, numbness and scarring (8.5 page 8/222) as well as 10% WPI for loss of vision, made an assessment that was within the terms of the Amended Referral because it was an assessment of the various conditions that could be assessed in respect of the visual system under the Guidelines and Chapter 8 of AMA 4. The assessment made by Medical Assessor Meades was made in accordance with the provisions of Chapter 8 of AMA 4 and the Guidelines. Medical Assessor Meades only addressed matters referred to her for assessment.
The Appeal Panel has found that the lead assessor, Medical Assessor Williams, did not have the power to remove part of the assessment of WPI made by the non lead assessor, Medical Assessor Meades, and applied incorrect criteria in finding that enophthalmos, numbness and scarring was not referred to Medical Assessor Meades for assessment. The application of incorrect criteria and removal of part of the assessment made by Medical Assessor Meades was a demonstrable error. In these circumstances, the Appeal Panel will issue a new MAC in which the 14%WPI found by Medical Assessor Meades is combined with the 4% WPI and WPI 8% assessed by Medical Assessor Williams.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 August 2023 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:	W3604/23
Applicant:	Giovacchino (Jack) Scavera
Respondent:	A & G Formworkers (Australia) 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 Brian J Williams 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. Facial Disfigurement	17.9.1999	Chapter 6, para 6.4, Table 6.1	8	0	8
2.Trigeminal Nerve	17.9.1999	Chapter 5, Para 5.13	P 331, Table 13-11	4	0	4
3.Visual System	17/9/1999	AMA 4, chapter 8, Table 6 and s 8.5	14	0	14
Total % WPI (the Combined Table values of all sub-totals)					23%

[2023] NSWPICMP 631

30 November 2023