Secretary, Department of Education v Bainbridge
[2021] NSWPICMP 59
•22 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v Bainbridge [2021] NSWPICMP 59 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Judith Bainbridge |
| Appeal Panel: | Principal Member John Harris Dr Brian Noll Dr Mark Burns |
| DATE OF DECISION: | 22 April 2021 |
| catchwords: | WORKERS COMPENSATION- The worker suffered injury to the right wrist fracturing the scaphoid and causing degenerative changes in the radio-carpal joint and damage to the ulnar nerve; there was a pre-existing condition involving a fracture of the right radius requiring internal fixation; the AMS assessed 14% for the right upper extremity, 4% for the ulnar nerve and 0% for the scarring and made a 10% deduction pursuant to section 323 for the right upper extremity; both parties filed appeals; Held- the AMS failed to give adequate reasons explaining the section 323 deduction and the assessment of the scarring; El Masri v Woolworths Ltd applied; the assessment of the ulnar nerve of 4% should have been upper extremity impairment and not whole person impairment and then internally combined with the wrist and elbow; paragraph 16.1c and Table 16-15 of AMA 5; the AMS also failed to assess carpal instability when that claim had been made; on reassessment the AMS concluded that the statutory deduction of 10% applied; gurther x-rays of the right wrist were requested as well as updated photographs of the scars; the Appeal Panel concluded that the worker did not satisfy Table 16-25 of AMA 5 for carpal instability and observed that paragraphs 2.11 and 2.12 of the fourth edition guidelines otherwise warned against duplication of impairments; the scars were reassessed at 0% WPI; the ulnar nerve impairment was internally combined with the other losses of the right upper extremity; MAC revoked and worker assessed at 14% WPI. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
Ms Judith Bainbridge (the worker) suffered injury in the course of employment with the Department of Education (the employer) when she fell onto her outstretched right hand and wrist on 9 May 2014. The worker then sustained a scaphoid fracture and ulnar nerve damage.[1]
[1] Medical Assessment Certificate dated 18 January 2021 (MAC), p 2.
On 22 August 2014, the worker underwent a right cubital tunnel release with anterior transposition of the ulnar nerve and operative fixation of the right scaphoid with bone graft.[2]
[2] Application to Resolve a Dispute (Application), p 102.
A claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made by letter dated 30 June 2020.[3] The s 66 claim was based on the report of Dr Daniel Posel, Orthopaedic Surgeon, dated 4 June 2020.[4]
[3] Application, p 20.
[4] Application, p 25.
Dr Daniel Posel assessed Ms Bainbridge at 24% whole person impairment (WPI) relating to the right upper extremity including the peripheral nerve and scarring. The doctor made a one-tenth deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) resulting in an overall assessment of 22%.
Dr Miniter was qualified by the employer and provided a report dated 10 September 2020.[5] The doctor assessed Ms Bainbridge at 5% WPI after a 50% deduction pursuant to s 323.
[5] Application p 15.
By letter dated 25 September 2020 the employer denied liability because the injury did not result in permanent impairment greater than 10% as required by s 66(1) of the 1987 Act.[6]
[6] Application, p 9.
The Registrar referred the medical dispute to Dr Timothy Anderson, an Approved Medical Specialist (AMS). The AMS examined Ms Bainbridge and provided the Medical Assessment Certificate dated 18 January 2021 (the MAC). The AMS assessed the right upper extremity at 14% WPI and then made a one-tenth deduction pursuant to s 323 of the 1998 Act, 4% WPI for the nervous system and 0% WPI for the scarring. The combined WPI after the s 323 deduction was 16%.
The worker previously sustained an injury to her right wrist at home in November 2010 which involved a displaced distal fracture of the radius. At that time, Ms Bainbridge underwent surgery by way of internal fixation of the displaced distal fracture with a plate and screws.[7] There was further surgery by way of resection of the ulnar styloid on 9 January 2017.[8]
[7] Application, p 26.
[8] Application, p 105.
Ms Bainbridge also underwent surgery to the base of the thumb on 16 September 2015.[9]
[9] Application, p 104.
Dr Posel accepted, and the Appeal Panel (AP) agrees, that the surgeries undertaken in 2010, 2015 and 2017 are unrelated to the work injury.[10] The operation on 22 August 2014 obviously related to the work injury because it was treatment directed to the scaphoid fracture.[11]
[10] See Dr Posel, Application, p 36.
[11] See Dr Posel, Application, p 37.
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[12] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[13]
[12] The 4th edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998.
[13] Clause 1.1 of the fourth edition guidelines.
THE APPEALS
On 4 February 2021, the employer filed an Application to Appeal Against a Medical Assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission).
The employer claims that the medical assessment should be reviewed on the ground that the MAC contains a demonstrable error within the meaning of s 327(3) of the 1998 Act.
On 9 February 2021, the worker filed an appeal claiming the MAC contains demonstrable errors in respect of the assessment of the scarring and the failure to assess carpal instability.
Both appeals were filed within 28 days of the date of the MAC. The submissions in support of the grounds of appeal are referred to later in these Reasons.
PRELIMINARY REVIEW
The AP was initially constituted in respect of the employer’s appeal and conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. As a result of that preliminary review, the AP determined, for the reasons provided subsequently, that a ground of appeal had been established.
The WorkCover Medical Assessment Guidelines (the Guidelines) set out the practice and procedure in relation to appeals to Medical Appeal Panels under s 327 of the 1998 Act.
The AP then issued the following direction.
“The AP is satisfied that there is a demonstrable error in the reasons provided by the Approved Medical Specialist (AMS) on the s 323 deduction. In reassessing the s 323 deduction, the AP may otherwise apply the statutory deduction under s 323(2) of the Workplace Injury Management & Workers Compensation Act, 1998 (the 1998 Act). Reasons will be provided in due course.
In reassessing the matter according to law (see Drosd v Nominal Insurer [2016] NSWSC 1053) the parties are advised of the following matters.
1.The findings by the AMS of the ‘nervous system’ (see MAC, pg 7) should be an upper extremity impairment (UEI) measurement, not whole person impairment (WPI), and internally combined with the loss of range of motion figures. This would result in a minor reduction of the final WPI.
2.The AMS did not assess carpal instability (see Table 16-25 of AMA 5). It is noted that Dr Posel provided an assessment of a scapholunate gap of greater than 5 mm resulting in 16% UEI. Any assessment for carpal instability would result in a significantly higher WPI.
The appellant is advised that if the appeal proceeds to determination, then the outcome may be a significantly higher WPI than that assessed by the AMS.
The Appeal Panel (AP) issues the following direction.
A.The respondent is to provide an updated lateral x-ray with the fist forcefully clenched and the wrist in neutral flexion/extension and lateral deviation (see AMA 5, p 503). A digital copy of the x-ray is to be filed and served by close of business, 31 March 2021.
B.The appellant is to file and serve written submissions by close of business, 29 March 2021 on any of the matters raised in this direction.
C.The respondent is to file and serve written submissions in reply, by close of business, 31 March 2021.
The AP advises that the updated x-ray will be examined by its medical assessors for the purposes of assessing any impairment under table 16-25.
Any decision of the AP will not be issued prior to 6 April 2021.
The parties have liberty to apply in relation to the timetable.”
On 26 March 2021, the Delegate referred the worker’s appeal to a Medical Appeal Panel. The AP were subsequently constituted to determine the worker’s appeal. It then issued a further direction which provided:
“The appellant worker is to file and serve updated coloured photographs of the scars (excluding the thumb) by close of business, 15 April 2021.
The respondent employer is to advise the AP by close of business, 16 April 2021, if it wishes to respond to the photographs. Further directions will then be made.
The parties have liberty to apply in relation to the timetable.”
Submissions were filed by the parties in response to these directions. These submissions are referred to later in these Reasons.
TRANSITIONAL PROVISIONS
After the appeals were lodged, the Workers Compensation Commission was abolished, and the Personal Injury Commission was created as and from 1 March 2021. The Personal Injury Commission Act 2020 amended the 1998 Act and provided for the appointment of non-presidential members and medical assessors to constitute the AP.
EVIDENCE
The AP has before it all the documents that were sent to the AMS for the original assessment and has referred to portions of the evidence and taken them into account in making this determination.
In response to the first direction the worker filed an updated x-ray of the right hand and wrist dated 25 March 2021 together with access to a digital copy.
In response to the second direction the worker filed two photographs of a wrist scar. When the AP further met, it determined that the photographs depicted the scar caused by the excision of the ulna styloid which was unrelated to the work injury and associated with the prior non-work injury involving the fracture of the distal radius.
The AP then called for photographs of any scars on the wrist and elbow. The worker filed further photographs in accordance with the further Direction.
MEDICAL ASSESSMENT CERTIFICATE
The AMS opined that the work injury involved a scaphoid fracture and damage to the ulnar nerve.[14]
[14] MAC, p 2.
The AMS referred to the 2010 fracture of the right radius which was managed by internal fixation and subsequent surgeries. He also noted pre-existing degenerative changes in the right thumb carpo-metacarpal joint.[15]
[15] MAC, pp 2 and 3.
The AMS concluded that the work injury did not involve the right thumb complex and did not include that loss in the overall assessment. He also concluded that “Ms Bainbridge’s presentation was completely consistent” and “presented as a straightforward and decent lady”.[16]
[16] MAC, p 5.
The AMS assessed loss of range of motion of both the right elbow and wrist. The upper extremity impairment (UEI) of those joints combined to 23% which converted to 14% WPI. The AMS otherwise concluded that there is a deduction of one-tenth pursuant to s 323 of the 1998 Act due to pre-existing degenerative changes[17] which resulted in a 13% WPI. The AMS also assessed the impairment of the ulnar nerve at 4%.
[17] MAC, p 8.
The AMS did not refer to the assessment made by Dr Posel for impairment based on a greater than 5 mm scapholunate gap, provided no reasons and made no assessment based on Table 16-25 of AMA 5.
In respect of the scars, the AMS stated:[18]
“The scarring is addressed in the SIRA Guidelines Page 74, Table 14.1. All of the surgical scars have healed satisfactorily. These are surgical scars which are uncomplicated and for specific surgical procedures. There is therefore 0% whole person impairment.”
[18] MAC, p 7.
The AMS then combined the 13% WPI of the wrist/elbow with the 4% assessment of the ulnar nerve to arrive at a figure of 16% WPI.
EMPLOYER’S GROUND OF APPEAL – SECTION 323
Employer’s submissions
The employer noted that the worker sustained a fracture of the right distal radius in a non-work incident in November 2010 which required operative fixation. Shortly after the work injury Dr Thorvaldson found a bone fragment relating to the old fracture of the ulnar styloid and mild distal radial ulnar joint osteoarthritis which predated the work injury.
The surgery undertaken in September 2015 by way of trapeziectomy and FCR suspension was not work related. Similar non-work injury related surgery occurred in January 2017.
The work injury involved a scaphoid fracture and scapholunate collapse.
The AMS provided no reasons when he stated that the deduction expressed by Dr Miniter of a 50% deduction was “excessive”.
The AMS made a deduction of 10% without reference to s 323(2) of the 1998 Act. The assessment is based “upon his consideration of the nature and extent of a pre-existing degenerate condition”.[19] This deduction is at odds with the evidence because:
(a) the respondent sustained a fracture to the right distal radius in November 2010 resulting in surgery including in 2017,
(b) that injury gave rise to advanced degenerative changes “affecting the right upper extremity including and ununited styloid fracture”[20],
(c) the assessment by the AMS of a 10% deduction is a demonstrable error in that it is at odds with the significant pre-existing condition which has resulted in two surgical procedures, and
(d) the respondent required surgery to address pre-existing degenerative changes by way of trapeziectomy of the right thumb.
[19] Appellant’s submissions, par 12.
[20] Appellant’s submissions, par 13 (b).
Worker’s submissions
The worker submitted that the AMS did not fail to consider relevant factual material and expressly referred to:
(a) the fracture of the right radius in 2010 injury which was managed by internal fixation and subsequent surgery in 2017, and
(b) the right thumb condition which was wholly due to the pre-existing degenerative changes.
The AMS did not include the thumb as part of the overall assessment. Dr Miniter supported a greater deduction based on extensive pre-existing degenerative changes in the right thumb.
The AMS otherwise considered the opinions provided by Dr Posel and Dr Miniter. Dr Posel also assessed a one-tenth deduction.
Although Dr Miniter made comments suggestive of the worker’s lack of veracity there is no available evidence that the worker’s “history is false or inaccurate”.[21]
[21] Respondent’s submissions, par 10.
Dr Miniter failed to assess carpal instability caused by the scapholunate collapse. This is arguably the most significant impairment caused by the work injury.
The AMS’s assessment is not at odds with the evidence. The worker only suffered significant dysfunction after the work injury.
The MAC is “not appealable simply because the appellant disagrees with the opinion expressed by the AMS”.[22]
[22] Respondent’s submissions, par 16.
Reasons
The specific reasons provided by the AMS on the s 323 deduction were:[23]
“Due to pre-existing degenerative changes, there is a deduction of one-tenth from the specific component of the right upper extremity.”
[23] MAC, p 8.
The AMS otherwise concluded that the 50% deduction made by Dr Miniter was “excessive”.
Section 323 of the 1998 Act relevantly provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The employer correctly submitted that the AMS did not refer to and apply the statutory deduction under s 323(2) of the 1998 Act. The worker’s submissions did not address that issue.
The reasons articulated by the AMS were brief. In the absence of basing his decision on s 323(2), it is difficult to understand how the AMS reached the conclusion that a 10% deduction was appropriate.
The AMS has a statutory obligation to provide reasons pursuant to s 325 of the 1998 Act. These principles were discussed in El Masri v Woolworths Ltd[24] (El Masri) a decision involving judicial review of a decision of an Appeal Panel, when Campbell J stated:[25]
“As I have said, and at the risk of repeating myself unduly, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. Although, as Ms Allars reminded me, Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, especially if one has regard to what was said by the Panel at paragraph 18 which I will not further set out.”
[24] [2014] NSWSC 1344.
[25] El Masri at [50].
Campbell J expressed similar reasons in State of New South Wales v Kaur.[26]
[26] [2016] NSWSC 346 at [25].
We accept that there were insufficient reasons to understand how the s 323 deduction was reached. The employer has established demonstrable error.
Accordingly, the AP is required to reassess according to law: Drosd v Nominal Insurer.[27]
[27] [2016] NSWSC 1053.
WORKER’S GROUND OF APPEAL – ASSESSMENT OF CARPAL INSTABILITY
Worker’s submissions
The worker submitted that the AMS failed to assess carpal instability pursuant to Table 16-25 of AMA 5 as part of the assessment of the right upper extremity.
The worker referred to various CT scans which established scapholunate collapse. This was assessed by Dr Posel at 16% UEI due to a gap greater than 5 mm.
The AMS did not refer to Dr Posel’s assessment and the MAC is silent on the issue.
The worker submitted that previous scans could be provided to the AP or a re-examination could be undertaken whilst the previous scans were examined.
Employer’s submissions
The employer referred in some detail to the evidence in respect of the presence of the scapholunate gap including three CT scans, an x-ray and the opinions of Dr Thorvaldson and Dr Meads.
The employer noted Dr Posel’s assessment and submitted that “there is in fact no evidence of a gap to this extent”.[28]
[28] Employer’s submissions in Reply, paragraph 7.
The employer noted that Dr Miniter recognised a sequential carpal collapse but did not provide a separate assessment.
The employer submitted:[29]
“[N]otwithstanding the fact that a slight scapholunate gap was identified in radiological investigations it has not been considered to be a significant finding bearing in mind the treating surgeons have only made passing reference to such finding and further it has not been the target of any specific treatment to address the restrictions affecting the appellant’s right hand.”
[29] Employer’s submissions in Reply, par 10.
Reasons
A portion of the worker’s claim for permanent impairment of the right upper extremity was based on carpal instability, specifically the scapholunate gap, which was assessed to be greater than 5 mm by Dr Posel. Dr Posel referred to Table 16-25 of AMA 5 in making this assessment.
The worker correctly submitted that there is no reference in the MAC to this portion of the claim.
The employer incorrectly submitted that there is “no evidence to support the claim” as it ignores the opinion provided by Dr Posel. Its submissions, set out at paragraph [61] are speculative and were not provided by the AMS. The employer provided an explanation that was not given by the AMS.
There is evidence that there was a scapholunate gap caused by the injury. Even if the extent of the gap is in dispute, the worker had made a claim and was entitled to have that part of the claim considered. There is a clear demonstrable error by the failure to give any reasons and otherwise consider this portion of the claim.
The AP considered that the matter can be appropriately re-assessed though obtaining an updated x-ray in accordance with the requirements of AMA 5, that is, a “lateral radiograph taken with the first forcefully clenched”.[30] A digital copy of the current x-ray was subsequently provided by the worker and is considered later in these reasons.
[30] AMA 5, p 503.
WORKER’S GROUND OF APPEAL – ASSESSMENT OF SCARRING
Worker’s submissions
The worker submitted that the AMS assessed 0% on account that they were “non-complicated surgical scars” which “appears guided by clause 14.6” of the fourth edition guidelines. However, that clause does not exclude assessment pursuant to Table 14-1 of the fourth edition guidelines. Furthermore, the scarring must be assessed applying that Table.
The worker also submitted that the AMS stated that Dr Posel included the scar on the thumb as part of his assessment. It was submitted that Dr Posel did not assess that scar. The basis for Dr Posel’s assessment was that the scars were easily locatable, contour defect was visible and there were limitations with respect to the activities of daily living.
Employer’s submissions
The employer submitted that “it could be interpreted from Dr Posel’s report that he has included more than scarring related to the wrist only”.[31]
[31] Employer’s submissions in Reply, par 13.
The employer otherwise disputed that the AMS erred “in failing to consider or apply table 14.1”.[32] It submitted that the AMS stated that scarring is addressed in accordance with Table 14-1, and he considered that the surgical scars had healed satisfactory and therefore did not give rise to any WPI.
[32] Employer’s submissions in Reply, par 14.
Reasons
The AMS stated:[33]
“The surgical scars on the medial side of the right elbow and also over the volar surface of the right hand and wrist had healed satisfactorily….
The scarring is addressed in the SIRA Guidelines Page 764, Table 14.1. All of the surgical scars have healed satisfactorily. These are surgical scars which are uncomplicated and for specific surgical procedures. There is therefore 0% whole person impairment.”
[33] MAC, p 4 and p 7.
Table 14.1 of the fourth edition guidelines sets out the criteria for the assessment of minor skin impairment known as TEMSKI. The range of assessment is from 0% WPI to 9% WPI. The relevant tables for minor skin impairment assessed at either 0%, 1% or 2% is as follows:
The note to Table 14.1 provides:
“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 (describes) the impairment. Refer to 14.8 regarding the application of this table.”
Paragraph 14.8 of the fourth edition guidelines provides:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chose 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.”
The glossary to AMA 5 provides an inclusionary definition to the meaning of “Activities of Daily Living”.[34] The definition relates to several distinct activities and includes the matters set out in Table 1-2 of AMA 5. Indeed the “Principles of Assessment” in paragraph 8.1 of AMA 5 direct the medical assessor to the Glossary which refers to the definition of common terms and Table 1-2.[35]
[34] AMA 5, p 599.
[35] AMA 5, p 174.
Paragraph 14.6 of the fourth edition guidelines provides:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
The worker correctly submitted that the scar must be assessed in accordance with the various criteria provided by Table 14-1. Whilst the AMS referred to Table 14-1, he did not describe the characteristics of the scars with reference to these criteria.
The AP is satisfied that the AMS provided insufficient reasons in referring to and applying the criteria provided by Table 14-1. A reference to the scars being “uncomplicated” does not address the relevant criteria. That description does not, of itself, explain how the assessment of 0% was reached in accordance with the criteria provided by Table 14-1 of the fourth edition guidelines.
A further, albeit minor reason, is that Dr Posel appears to have assessed 2% WPI based on the distal radius/right wrist scar[36]. To the extent that the AMS attempted to distinguish Dr Posel’s opinion on the basis that he assessed the thumb scar, there appears to be a further error. However, our reasons for finding demonstrable error on the TEMSKI assessment are not dependent on this further reason.
REASSESSMENT
[36] Application, p 38.
The employer did not request that the worker be re-examined. The worker raised possible ways in which the carpal instability could be assessed.
The AP determined that we could reassess the worker with the further information requested in the three Directions. We have adopted this course because of the clear findings made by the AMS of the worker’s consistency and credit and the other detailed findings made by the AMS of the loss of range of movement and ulna nerve deficiency.
We adopt the findings of injury made by the AMS, specifically that the worker sustained a fracture of the scaphoid, which caused substantial degenerative changes in the radio-carpal joint, and damage to the ulnar nerve. The development of the arthritis in the radio carpal joint and the intercarpal arthritis from the injury is clearly shown in the recent x-ray[37] when compared with the scans taken shortly after the injury.
[37] This x-ray is discussed at [92] herein.
We repeat and adopt the findings made by the AMS of the worker’s consistency.
We adopt the assessments made by the AMS on the extent of loss of movement. We have adopted this course because there were no submissions contesting this assessment. The AMS assessed loss of movement of the wrist at 21% UEI and the elbow at 3% UEI.
The AMS also assessed the ulnar nerve dysfunction. Those findings, which were not the subject of contrary submissions and which we adopt, are:[38]
“Nervous System. This impairment would normally be combined at an earlier stage with the reduced range of movement of the right upper extremity although is addressed separately since it has been requested this way. There is dysfunction of the ulnar nerve below the mid-forearm. This is addressed in AMA 5 Page 492, Table 16-15. The maximum sensory dysfunction is 7% upper extremity impairment. This is further modified by Table 15-10 on Page 482. Grade II is selected with 50% of the maximum, which technically gives 3.5%. This is rounded up in her favour to 4%.”
[38] MAC, p 7.
The AP advised the parties in its first Direction that the finding made by the AMS of the ulna nerve was an UEI measurement and had to be internally combined with the loss of range of motion assessments of the wrist and the elbow.
The employer observed that the figure “should be made based on upper extremity impairment in accordance with Chapter 16.5 of the AMA 5 Guidelines”.[39] The worker did not address the issue in its written submissions filed in response to that Direction.
[39] Employer’s submissions in response to Direction, par 1.
Table 16-15 of AMA 5 is expressed in UEI, not WPI. Furthermore, paragraph 16.1c of AMA 5 provides that multiple regional impairments are expressed individually as UEI and then combined to determine the total UEI. That figure is then converted to WPI in accordance with Table 16-3 of AMA 5.
The AMS incorrectly recorded the 4% figure for the ulna nerve as WPI when it was UEI and otherwise incorrectly treated it as a separate body part when it is part of the assessment of the upper extremity.
The AMS did not assess carpal instability. In these circumstances the AP called for updated x-rays “with the fist forcefully clenched (stressed view) and the wrist in neutral flexion/extension and lateral deviation”.[40]
[40] AMA 5, p 503.
The worker supplied a digital copy of an updated x-ray in accordance with our Direction.
This x-ray was examined independently by the two medical assessors on the AP. Their joint report of the recent x-ray was:
“There is no obvious widening of the scapholunate joint space.
There is increased joint space loss in the radio-carpal joint consistent with degenerative changes. There is marked intercarpal degenerative change associated with loss of the intercarpal joint spaces; there is further narrowing of the ulno-carpal joint with no increase in erosive change.
Although carpal instability may have led to the marked degenerative changes, the radiological features are now no longer indicative of any persistent carpal instability.
The marked limitation of wrist movement is consistent with the degenerative changes – predominantly in relation to the radiocarpal arthritis.
In summary: The new x-rays do not reveal any evidence of carpal instability.”
The comments by the expert members of the AP are consistent with those expressed by the radiologist, Dr Virgil Chan.
The other member of the AP adopts the joint opinion of the two medical experts.
Whilst the AP accepts there is clear evidence of previous scapholunate collapse, the updated x-rays do not show a scapholunate gap greater than 3 mm[41]. That change is explained on the basis that there has been narrowing of all the intercarpal joint spaces due to the progressive degenerative changes. These degenerative changes have also resulted in narrowing of the scapholunate gap. For this reason, there is no assessable impairment for carpal instability.
[41] Note. The scapholunate gap in Table 16-25 must be greater than 3 mm to be assessed as “mild” impairment. This is because the gap is normal if it is up to 3 mm.
The AP observes that paragraphs 2.11 and 2.12 of the fourth edition guidelines provides that the assessor must “take care to avoid duplication of impairments”. We are otherwise satisfied that the loss of range of motion appropriately assesses the worker’s impairment of the right wrist and there would be no further need to include an amount for carpal instability.
The AP also concluded that the scarring had to be reassessed.
The worker provided updated coloured photographs of a wrist scar. The AP then required further photographs to be produced as we were not satisfied that the photographs depicted the scar caused by the operation for the work injury.
Dr Miniter referred to but did not describe the characteristics of the scars resulting from the separate operations to the ulnar styloid and the scaphoid.[42]
[42] Reply, p 8.
Dr Posel assessed the distal radius/wrist scar at 2% WPI. His reasoning was that the scar is “easily locatable, contour defect visible and minor limitation with a few ADL’s”.[43] He also noted that no treatment was required. The doctor described the other scars on the thumb, elbow and ulnar aspect of the wrist as being “non tender, suture marks not visible, flat”.[44]
[43] Application, p 38.
[44] Application, p 38.
The surgical scars relating to the operation on 22 August 2014 are those on the elbow and the short scar on the radial (thumb side) of the wrist. The longer scar in the photographs relates to the operation to internally fix the fracture of the distal radius and is therefore unrelated to the work injury.
The relevant scarring fulfils the criteria according to TEMSKI for 0% WPI. In this regard the scars are relatively unobtrusive and a good colour match with the surrounding skin. There is no contour defect, no suture or staple marks, no adherence, no treatment is required, no trophic changes and no effect on any activities of daily living (ADLs). There is simply no medical reason why this scar would have any impact on the ADLs.
The scars caused by the injury are of the description where the worker was “barely conscious” of them. That observation would contrast with the scar caused by the 2010 operation which is significantly more obvious and may rate an assessment under TEMSKI.
For these reasons, the best fit for the scars resulting from the work injury is 0%.
The remaining issue is the extent of any s 323 deduction.
The x-ray taken shortly after the injury was reported by Dr Chan as showing only “mild osteoarthritis at the STT joint of the wrist”.[45] The doctor referred to “advanced” osteoarthritis in the right thumb, which formed part of the employer’s submissions for a greater s 323 deduction. As the worker submitted, the reliance by the employer of severe osteoarthritis in the right thumb as a basis of a greater s 323 deduction is misconceived because the AMS clearly stated that he did not assess the thumb as part of the overall impairment. Similarly, loss of movement of the thumb was not included in any assessment made by the AP.
[45] Application, p 85.
A deduction pursuant to s 323 of the 1998 Act is required if a proportion of the permanent impairment is due to previous injury or due to pre-existing condition or abnormality: Vitaz v Westform (NSW) Pty Ltd[46] (Vitaz).
[46] [2011] NSWCA 254.
In Vannini v Worldwide Demolitions Pty Ltd[47] (Vannini) Gleeson JA stated that an Appeal Panel, when considering the reasoning of an Approved Medical Specialist on the question of causation under s 323, was required to determine “whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality” and if so, “what was that proportion”.[48]
[47] [2018] NSWCA 324 (Vannini) at [90].
[48] At [90].
A deduction can be made even though the worker is asymptomatic prior to injury: Vitaz[49] and Matthew Hall Pty Ltd v Smart[50] (Smart).
[49] At [42]-[43], McColl JA and Handley AJA agreeing.
[50] [2000] NSWCA 284 at [32], Mason P and Powell JA agreeing.
The onus of proof in establishing the s 323 defence lies on the employer: Smart.[51] See also the discussion in Asbestos Remover & Demolition Contractors Pty Ltd v Kruse [2017] NSWWCCMA 51[52] referring to the observations of Barwick CJ in Sadler v Commissioner for Railways (1969) 123 CLR 216 and Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133.
[51] [2000] NSWCA 284 at [37].
[52] At [52]-[54].
The worker had a prior fracture of the right radius which was managed by internal fixation. The contemporaneous scan evidence proximate to injury revealed “advanced degenerative change within the first carpometacarpal joint as well as mild to moderate osteoarthritic change within the STT joint”.[53]
[53] Application, p 85.
The worker’s evidence which was accepted by the AMS was that she was asymptomatic and that there was essentially normal use prior to the work injury. That history was consistent with any work duties prior to injury.
Dr Posel assessed a one-tenth deduction, and the worker made no submission that this was not appropriate. In essence she sought to defend the MAC on this point.
The AP does not look at subsequent factors in assessing the s 323 which relates to the injury or pre-existing condition or abnormality.[54]
[54] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 31 at [53]-[55].
Whilst we do not have to accept the opinion of any doctor, the employer pressed the extent of the deduction made by Dr Miniter. We reject Dr Miniter’s assessment of a 50% deduction for the following reasons.
First, Dr Miniter referred to the extensive pre-existing osteoarthritis in the right thumb and relied in part, on this to conclude that there should be a 50% deduction. However, the impairment of the thumb has not been included in any assessment and that pre-existing condition is irrelevant.
Secondly, unlike scepticism expressed by Dr Miniter that the worker “claims that she had no significant symptoms prior to the fall”, when he underlined the word “claims”[55], we adopt the findings made by the AMS that the worker was consistent and active prior to the injury. We accept the worker’s evidence that there was an absence of problems.
[55] Reply, p 7.
Thirdly, the contemporaneous scan evidence did not show extensive degenerative changes in the radial carpal joint but showed marked degeneration at the base of the thumb.[56] The recent x-ray has shown a gross deterioration in the arthritic condition of the radio carpal joint which is related to the work injury. This was not addressed by Dr Miniter.
[56] Application, p 85
Fourthly, the worker reported benefit from the surgery performed in 2017 which related to the ulna styloid injury suffered in 2010. The benefit from such procedure would translate to an improvement in the range of motion relating to that condition and lessen the effect of that pre-existing condition.
For these reasons we do not accept Dr Miniter’s opinion that there should be a 50% deduction. This opinion is not relevant to our determination under s 323(2).[57]
[57] See s 323(3) of the 1998 Act.
The AMS assessed impairment based on loss of range of movement in the wrist. There are pre-existing changes in the wrist joint shown by the contemporaneous scans. The worker otherwise conceded, consistent with the opinion expressed by Dr Posel, that there was a 10% deduction based on the pre-existing condition. That concession was undoubtedly correct given the circumstances of the prior distal radius fracture which led to internal fixation and would invariably had contributed to some loss of movement of the wrist.
It is extremely difficult to assess the relative contribution to impairment from the pre-existing condition. The worker was able to work and function at a high level and the recent radiological evidence reveals a gross deterioration in the osteoarthritic condition of that part of the wrist due to injury.
In these circumstances we apply the statutory deduction pursuant to s 323(2) of the 1998 Act as the extent of the pre-existing condition contributing to impairment is difficult to determine. Our conclusion to apply the statutory deduction is not at odds with the evidence that we have accepted[58]. Our basis for this conclusion includes an adoption of the findings made by the AMS on the worker’s credibility and history related to symptoms.
[58] See s 323(3) of the 1998 Act.
There is no evidence that there was any pre-existing condition which contributed to either the elbow and/or ulna nerve impairment.
Given the duration of the symptoms we are satisfied that the impairment is permanent and maximum medical improvement has been attained.
The impairment of the wrist is 21% UEI less one-tenth pursuant to s 323(2) of the 1998 Act which totals 19% UEI. This figure is combined with the 3% UEI for the elbow and 4% UEI for the ulna nerve. Using the combined tables this totals 24% UEI which equates to 14% WPI[59]. We have reworked the table at the end of these Reasons to reflect the fact that s 323(2) deduction only relates to the wrist impairment of the right upper extremity.
[59] Table 16-03 of AMA 5.
For these reasons, the AP concludes that the MAC is revoked.
DECISION
The MAC is revoked and a new certificate is attached to these reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to section 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson dated 18 January 2021 and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in fourth edition guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 | % | Deduction pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Right Upper Extremity wrist | 09/05/14 | Chap 2 p 10-12. | Chap 16, Fig 16.28 and 16.31 | 21% (UEI) | 1/10th | 19% (UEI) |
| Right Upper Extremity elbow | 09/05/14 | Chap 2 p 10-12. | Chap 16, Fig 16-34 and 16.37 | 3% (UEI) | N/A | 3% (UEI) |
| Right Upper Extremity Ulna Nerve | 09/05/14 | Chap 16, Table 16-10 and 16-15 | 4% (UEI) | N/A | 4% (UEI) | |
| Right Upper Extremity (WPI) (combined) | 14% | |||||
| Scarring | 09/05/14 | Chapter 14, Table 14.1 | 0% | N/A | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
John Harris
Principal Member
Dr Mark Burns
Medical Assessor
Dr Brian Noll
Medical Assessor
22 April 2021
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