Secretary, Department of Planning, Industry and Environment v Bjork
[2024] NSWPICMP 270
•3 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Planning, Industry and Environment v Bjork [2024] NSWPICMP 270 |
| APPELLANT: | Secretary, Department of Planning, Industry and Environment |
| RESPONDENT: | Richard Olaf Bjork |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 3 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment of consequences of fracture of humerus which led to radial nerve injury; Medical Assessor assessed loss of the range of movement of the wrist; terms of referral did not include wrist; Skates v Hills Industries Ltd and Secretary New South Wales Department of Education v Connolly applied; in any event, 2.9 and 2.10 of Guidelines preclude range of motion assessment for nerve injury; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 February 2024 the Secretary, Department of Planning, Industry and Environment (the Secretary) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed Medical Assessor Tim Anderson, who issued a Medical Assessment Certificate (MAC) on 10 January 2024.
The Secretary 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor failed to consider Dr Doig’s opinion. We conducted a review of the original medical assessment, limited to the grounds 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).
RELEVANT FACTUAL BACKGROUND
Mr Bjork was employed by the Secretary as a senior field officer and firefighter in the National Parks and Wildlife Service. On 6 February 2020 Mr Bjork was stuck by a falling tree and suffered an injury to his right arm, including a mid-shaft fracture of his right humerus. The fracture was reduced but subsequent nerve conduction studies revealed damage to the radial nerve. Mr Bjork underwent further surgery in September 2020, including bone grafting from his right iliac crest.
The Medical Assessor was asked by the referral to assess Mr Bjork’s right upper extremity (right shoulder, elbow, radial nerve) and scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI). It did not specify his right wrist. The Medical Assessor assessed 23% whole person impairment (WPI) by reference to the range of movement of the shoulder, elbow and wrist, injury to the radial nerve and the TEMSKI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Bjork to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, the Secretary noted that the Medical Assessor did not consider the report of Dr Doig and suggested this because it was not included in the brief. The Secretary said that the failure to consider the report was an error.
The Secretary said that the Medical Assessor also erred in assessing Mr Bjork’s right wrist with respect to both the range of motion and nerve damage, noting Dr Doig’s opinion that the limitation of wrist movement was solely a result of nerve damage.
In reply, Mr Bjork submitted that the failure to consider Dr Doig’s report did not vitiate the Medical Assessor’s assessment. He said that the Medical Assessor had appropriately assessed his wrist. In particular, the Medical Assessor had not assessed the impairment twice because he did not include the motor component of the peripheral nerve injury in the assessment of impairment (though the Medical Assessor did not identify this was so and its exclusion was “confirmed” by Mr Bjork’s solicitor checking the arithmetic).
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor summarised the history of the fracture of Mr Bjork’s right humerus and the treatment he underwent. He said:
“The bony injury healed more satisfactorily after that, although he has been left with dysfunction of the right forequarter. This has affected the shoulder, elbow and the wrist.”
The Medical Assessor recorded Mr Bjork’s present symptoms:
“Fixed flexion deformity of the right elbow. Weakness of the right arm. Reduced movement of the right shoulder. Numbness and hyper-sensitivity over the dorsum of the right hand and forearm. Reduced right wrist extension.”
The Medical Assessor set out his examination findings for Mr Bjork’s shoulders, elbows and wrists. He recorded:
“Neurological Findings. The sensory distribution of the radial nerve in the right forearm, wrist and hand was grossly reduced. Over part of this area, mostly the distal forearm, there was hyper-sensitivity.”
Summarising the injuries and diagnoses, the Medical Assessor said:
“Mr Bjork gives a history of a very traumatic event in which his right humerus was fractured at the mid-shaft. This was managed by internal fixation. Unfortunately, there was damage to the radial nerve. Although there appears to have been some improvement to this, at this assessment he continues to have significant dysfunction of this nerve complex in both motor and sensory modalities.
He has also been left with reduced movement of the right shoulder, elbow and wrist.”
The Medical Assessor assessed the range of motion of Mr Bjork’s right shoulder, elbow and wrist by reference to AMA 5. He assessed 9% upper extremity impairment (UEI) for Mr Bjork’s shoulder, 3% UEI for his elbow and 22% UEI for his right wrist.
He wrote:
“Neurological. From AMA 5 Page 492, Table 16-15, dysfunction of the radial nerve has a maximum provision of the sensory component of 5% UEI and of the motor component of 35% UEI. Both of these are further modified. For the sensory component this is on Page 482, Table 16-10. Grade II with 80% of the maximum is identified, which therefore reduces the upper extremity impairment due to sensory dysfunction from 5% down to 4%.
With the motor dysfunction, this is further modified on Page 484, Table 16-11. Grade II with 20% of the maximum is identified, which therefore reduces the maximum figure of 35% down to 7% UEI.”
The Medical Assessor combined the range of motion measurements and the neurological impairments UEI to reach 39% UEI which he converted to 23% WPI. The Medical Assessor allowed 1% under the TEMSKI, in respect of which there is no appeal, resulting in WPI of 24%.
We note that the Medical Assessor transposed the incorrect figure of 27% UEI into the table for the loss of the range of motion of Mr Bjork’s wrist. When the figure of 22% assessed for the wrist is used, the UEI assessed does combine to 39% or 23%WPI. When the transcription error is appreciated, Mr Bjork’s argument about the Medical Assessor not including the motor component of the peripheral nerve injury in his assessment cannot be accepted.
At the section of the MAC template where he was alerted to provide brief comments on other reports in the file, the Medical Assessor said:
“There is only one other report in the file in which whole person impairment has been calculated. This was from Specialist Orthopaedic Surgeon, Dr Paul Miniter in his report of 14/02/22. He advises that there is a full range of movement of the right upper extremity. With the greatest of respect, I demonstrated significant (very significant) dysfunction of the three major joints of the right forequarter. No other factor has been identified to account for this reduced range of movement, which is therefore attributed to this quite extensive injury of early February 2020.”
Failure to refer to Dr Doig’s report
The role of the Medical Assessor was to make an independent assessment on the day of the examination[3] and not to adopt or choose between the assessments made by other doctors at another time.[4] However, by referring to the other reports in the file, the Medical Assessor can explain to the parties how he has reached his decision and why he differs from the assessments made by the independent medical examiners qualified by the parties. He was alerted to do so by the MAC template.
[3] Guidelines paragraph 1.6.
[4] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [26], discussing the applicability of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480.
Dr Doig’s report was described to in the index to the Application to Resolve a Dispute (ARD) and appears at page 178, immediately before the report of Dr Miniter to which the Medical Assessor did refer. The Medical Assessor’s comment suggests that his review of the file may have been cursory. The statement that there was no report is a demonstrable error.
Dr Doig, orthopaedic surgeon, was qualified on behalf of Mr Bjork and reported on 20 January 2023. He noted that Mr Bjork’s:
“on-going symptoms pertain to issues secondary to a radial-nerve palsy, with weakness in the wrist and hand and paraesthesia. He has other restrictions in function at his shoulder and elbow.”
Dr Doig set out the range of motion of Mr Bjork’s shoulder and elbow, assessing 9% UEI in respect of the shoulder and 7% UEI in respect of the elbow. He assessed:
“In addition, using Page 492, Table 16-15, with respect to the radial-nerve injury which had sparing of the triceps muscle, the maximum, upper-extremity impairment for motor deficit is 35%. The maximum for sensory impairment is 5%.
Using Pages 482 and 484 and Tables 16-10 and 16-11, it is my opinion there is a grade 3, mid-range, sensory impairment of 40%. 40% of 5% gives 2% impairment of the upper extremity. In addition, there is grade 4/5 muscle weakness with active extension against gravity with some resistance, which provides a grade 4 motor impairment of a maximum of 25%. 25% of 35% gives 9% upper-extremity impairment.
The motor and sensory impairments are combined giving 11%.
This is combined with the restricted movement impairment giving 24% impairment of the upper extremity, which converts to 14% whole-person impairment.”
With an assessment of 2% under the TEMKSI, Dr Doig’s total assessment was 16% WPI.
The assessment of the range of motion in Mr Bjork’s shoulder and elbow was appropriate because the humerus forms part of each of those joints.
Assessment of the right wrist
The assessment of the loss of the range of motion of Mr Bjork’s right wrist is an error because it did not form part of the dispute referred to the Medical Assessor. The letter from Mr Bjork’s solicitors to the Secretary’s insurer dated 25 January 2023, making a claim for permanent impairment compensation, does not appear in the file, though a covering letter does. The Secretary made an offer of settlement based on Dr Miniter’s assessment dated 14 February 2022, which predated Dr Doig’s assessment.
Dr Miniter said that the injury was a fracture of the right midshaft of the humerus with a subsequent radial nerve injury. He made the following assessment on the basis of the radial nerve injury only:
“Turning now to the AMA Guides to the Evaluation of Permanent Impairment (5th Edition), I note that according to Table 16-10 this gentleman has grade 4 power and grade 4 sensory loss and according to Table 16-11, grade 4 power. Both of these have a range between 1% and 25%.
Turning now to the regional nerve (radial) involved, I note that according to Table 16-15, the triceps is spared and that the maximum sensory deficit is 5% of the upper extremity. 25% of this impairment leads to 1% upper extremity impairment. The maximum motor deficit is of the upper extremity and 25% of this relates to 8% upper extremity impairment. The total therefore is 9% upper extremity impairment. This converts to a 5% Whole Person Impairment.”
The claim in the ARD was for 16% WPI in respect of the “right upper extremity”. There was no reference to scarring.
The form of the referral to the Medical Assessor appears in consent orders dated 2 November 2023 prepared by a Member of the Personal Injury Commission. It clarifies that the dispute related to the assessment of the right upper extremity, by reference to the shoulder, elbow and radial nerve, and scarring under the TEMSKI. The difference in wording between the ARD and the referral shows that the parties carefully considered the form it should take when the matter was listed before the Member.
There was no reference to Mr Bjork’s wrist in the consent orders and the consequent referral. The Medical Assessor was constrained by the terms of the referral to assessing Mr Bjork’s right upper extremity by reference to the shoulder, elbow and radial nerve and scarring.
In Skates v Hills Industries Ltd[5] the Court of Appeal determined that the medical dispute and the scope of the medical assessment is governed by the claim made, including the medical reports on which is based. In that case, the form of referral to the Medical Assessor completed by the relevant delegate contained an error because it did not include injury to the worker’s left wrist, which had been a part of the claim set out in the relevant ARD and the medical reports relied on. The Court held that it was an error for an Appeal Panel to consider that the Medical Assessor was constrained by the form of the referral when the left wrist was clearly part of the claim.
[5] [2021] NSWCA 142.
Here, the ARD contained a broad claim in respect of Mr Bjork’s right upper extremity. The claim was based on Dr Doig’s report which did not include an assessment in respect of his right wrist.
The claim cannot be expanded by the Medical Assessor’s assessment of the right wrist which had never been claimed or referred – see Secretary, New South Wales Department of Education v Connolly.[6]
[6] [2023] NSWPICPD 38.
Even if the Medical Assessor had been asked to assess a wrist injury, his assessment was in error. Mr Bjork’s submission that peripheral nerve system impairment can be combined with the range of motion is based solely on AMA 5 and does not take account of paragraphs 2.9 and 2.10 of the Guidelines which prevail to the extent of inconsistency and provide:
“Specific interpretation of AMA5 - the hand and upper extremity impairment of the upper extremity due to peripheral nerve disorders
2.9 If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments.
For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).
...
2.10 When applying AMA5 tables 16-10 (p 482) and 16-11 (pp 482 and 484) the examiner must use clinical judgement to estimate the appropriate percentage within the range of values shown for each severity grade. The maximum value is not applied automatically.”
Any impairment of Mr Bjork’s right wrist was solely due to an injury to a peripheral nerve injury. The effect of paragraphs 2.9 and 2.10 is that the relevant impairment to his right wrist is assessed by reference to the radial nerve injury.
Re-assessment
There is no appeal with respect to the Medical Assessor’s assessment of Mr Bjork’s right shoulder at 9% UEI and elbow at 3% UEI. When those figures are combined with the assessment of the radial nerve, the appropriate assessment of Mr Bjork’s right upper extremity is 22% UEI which converts to 13% WPI. When combined with 1% for scarring, the total WPI is 14%.
For these reasons, we have determined that the MAC issued on 10 January 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: | W7237/23 |
Applicant: | Richard Olof Bjork |
Respondent: | Secretary, Department of Planning, Industry and Environment |
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 Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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-totals % WPI (after any deductions in column 6) |
| Right upper extremity | 6.2.2020 | Ch 2, p 10 | P 476 F16-40 P 477 F16-43 P 479 F16-46 P 472 F16-34 P 474 F16-37 P 492 T16-15 P 482 T16-10 P 484 T16-11 P 439 T16-03 | 13 | 0 | 13% |
| Scarring | 6.2.2020 | Ch 14, p 74 | 1 | 0 | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
6
0