Sefar Pty Ltd v Perry
[2024] NSWPICMP 30
•22 January 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sefar Pty Ltd v Perry [2024] NSWPICMP 30 |
| APPELLANT: | Sefar Pty Ltd |
| RESPONDENT: | Cheryl Perry |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 22 January 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for whole person impairment (WPI) of right thumb and right lower extremity, hip and consequential condition in the knee; Medical Assessor (MA) assessed WPI of right wrist; Panel satisfied that this was not part of the dispute between the parties and MA erred in making that assessment; MA made no deduction under section 323 in respect of the right hip; Panel satisfied that this finding was open to the MA on the evidence and there was no error but simply a difference in opinion concerning whether a deduction should be made under section 323; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 October 2023, Sefar Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 October 2023.
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).
RELEVANT FACTUAL BACKGROUND
The respondent (Ms Perry) sustained an injury to her right femur, right knee and right hip and right thumb when she tripped and fell in the course of her employment with the appellant on 25 July 2017.
Ms Perry lodged an Application to Resolve a Dispute (ARD) in the Commission dated 14 August 2023 in which she claimed 22% whole person impairment (WPI) of the right lower extremity and left upper extremity as a result of injuries sustained on 25 July 2017 in her employment with the appellant.
The matter was referred to the Medical Assessor, Dr Tim Anderson, on 14 September 2023 for assessment of WPI of the right upper extremity (thumb), right lower extremity (hip), right lower extremity (knee – as a consequential condition), with the date of injury being 25 July 2017.
The Medical Assessor examined Ms Perry on 21 September 2023 and assessed 12% WPI of the right upper extremity and 11% WPI of the right lower extremity, hip and knee (consequential). The combined total was 22% WPI as a result of the injury on 25 July 2017.
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 Ms Perry 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 unnecessary for Ms Perry 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 included the following:
(a) Ground 1 – the Medical Assessor erred by assessing additional body parts which did not form part of the referral. In the MAC dated 6 October 2023, the Medical Assessor confirmed the above body parts were referred to him for assessment. However, the Medical Assessor proceeded to undertake a right wrist assessment and included the right wrist assessment in his calculation of permanent impairment;
(b) in relation to the right upper extremity, the respondent had not made a claim for lump sum compensation in relation to the right wrist and the referral to the Medical Assessor did not request an assessment of the right wrist;
(c) the the body parts specified by both parties in the proceedings were precise and plainly revealed the bounds of the dispute. Therefore, the right wrist assessment was conducted in error and should not form part of the MAC, and
(d) the appellant submits this position was consistent with the recent decision of Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38.
(e) Ground 2 – failure to give appropriate weight to Ms Perry’s pre-existing conditions and failure to appropriately address s 323 of the 1998 Act. The evidence before the Commission established that Ms Perry suffered from osteoarthritis in her right hip, which would warrant a s 323 deduction;
(f) the Medical Assessor failed to appropriately apply the requirements of s 323 of the 1998 Act. In those circumstances, the assessment from the Medical Assessor was made on the basis of incorrect criteria and contains a demonstrable error;
(g) when addressing the application of s 323 relating to the right hip, the Medical Assessor recorded at Part 10c on page 7 of the MAC: “there is no convincing evidence of significant preexisting dysfunction of either joint structure and certainly no history of associated dysfunction”;
(h) the relevant test when applying s 323 of the 1998 Act is not whether there was any significant pre-existing dysfunction.The principles pertaining to the deduction pursuant to s 323 of the 1998 Act are well established. The pre-existing injury, pre-existing condition or abnormality must cause or contribute to the impairment. If a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even where the pre-existing condition was asymptomatic prior to the injury; (D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep); Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32]; Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [42] to [43]);
(i) the case law is clear that it does not matter if the pre-existing condition was asymptomatic, rather if the loss is to some extent due to the pre-existing condition, there must be deduction of the deductible proportion for that loss, (Government Cleaning Service v Ellul (1996) 13 NSW CCR 344 at 349);
(j) the Medical Assessor only referenced radiological scans dated 9 August 2017 and 11 January 2020 in relation to the right hip and femur. The Medical Assessor did not reference the X-ray of the right femur dated 29 September 2017 which revealed “Mild OA noted at the superior aspect of the right hip” (page 973 of the ARD);
(k) in his medical report of 6 April 2022 (commencing page 6 of the Reply), Dr John Bosanquet, orthopaedic surgeon applied a 50% deduction to his assessment of WPI of the right hip on the basis the X-ray scan performed two months following the work injury indicated arthritis in the respondent worker’s right hip, which had been aggravated by the work incident;
(l) the conclusion reached by the Medical Assessor was at odds with the available evidence before him. Ms Perry had pre-existing osteoarthritis in her right hip, and as such a deduction under s 323 of the 1998 Act should have been made by the Medical Assessor accordingly;
(m) Ms Perry’s pre-existing osteoarthritis had impacted her condition and impairment resulting from the work injury. The Medical Assessor erred in failing to make an appropriate deduction to reflect the pre-existing conditions pursuant to s 323 of the 1998 Act, and
(n) summary – The above errors resulted in the assessment being made on the basis of incorrect criteria and the medical assessment certificate containing a demonstrable error.
Ms Perry’s submissions included the following:
(a) Ground 1 – the Referral dated 14 September 2023 listed “Right upper extremity (thumb), Right Lower Extremity (hip), Right lower extremity (knee – as a consequential condition)” as the body parts to be assessed by the Medical Assessor;
(b) it is accepted that the Medical Assessor also assessed impairment of the right wrist. The basis for doing so was articulated by the Medical Assessor as follows:
(i)History Relating to the Injury …
“she missed her footing at work, tripped and fell forward, landing mostly on her right side. She had instinctively put her right hand out to try to save herself and came down hard onto this arm. She also impacted hard with her right side. This resulted in a fracture to part of the right thumb and also to the right femur.”
… The right thumb condition had continued painfully as well, with gross dysfunction of the thumb complex. … The condition of the right thumb had not significantly improved and it was elected to carry out a fusion at the inter-phalangeal joint. This was performed with a compression screw in early February 2018. There also appears to have been some shortening of the thumb as well.
(ii)Present Symptoms “Tenderness with the right thumb with reduced gripping and gross restriction of movement.”
(iii)Summary of Injuries and Diagnoses …The thumb has been managed by a fusion at the inter-phalangeal join… At this assessment she had discernible dysfunction of the right hip, knee, thumb and wrist.
(iv)Comments regarding the other medical opinions:
“Specialist Orthopaedic Surgeon, Dr John Bosanquet in his report of 06/04/22 describes significant reduced movement of the right wrist, yet does not include this in the whole person impairment. With great respect, I believe this should be included since there is no other history (at all) of dysfunction of the right wrist and she did come down very hard on her right arm.”
(c) the appellant’s submission was that the MAC contained a demonstrable error because the Medical Assessor assessed a body part that was not contained within the referral;
(d) the referral is not a binding document on the Medical Assessor, nor does it in isolation set out the bounds of the matters to be determined by the Medical Assessor. In Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates), the Court of Appeal emphasised the importance in a case of this kind of understanding the bounds of the relevant medical dispute (as defined in s319 of the 1998 Act);
(e) accordingly, the Medical Assessor is to determine the medical dispute between the parties. To determine whether the Medical Assessor strayed outside the scope of the medical dispute, it is necessary to determine the scope of the medical dispute first. This is to be done by inspecting Ms Perry’s claim, including the medical reports provided in support of it, the employer’s response, the ARD and the Reply;
(f) on a review of the material the following pertinent pieces of evidence are noted:
(i)Ms Perry’s Statement “In relation to my right thumb it is painful all the time and it is stiff. I have lost function in my right hand and arm because of the ongoing problem.” …I struggle with doing my hair now because of the problems I have with my hand. … “I struggle doing up buttons on my cloths because of my thumb and hand.”
(ii)Discharge Summary dated 31 July 2017 – X-Rays of wrist undertaken.
(iii)Employer Injury Claim Form – Body Parts Affected “right leg, Right arm/hand.”
(iv)Dr Bosanquet’s examination of the right thumb revealing significant restriction in right wrist.
(v)the ARD which claimed lump sum compensation for in respect of the left [sic right] upper extremity;
(g) the above material, consistent with Skates supported the Medial Assessor’s contention that the right wrist formed part of the medical dispute and ought to have been assessed;
(h) further the Medical Assessor was required to assess all impairments that result from the same injury: s 322(2) and (3) 1998 Act;
(i) the evidence in the present proceedings is clear, the ARD claimed impairment resulting from inter alia impairment to the upper extremity, the mechanism of injury was consistent with their being impairment to the right wrist, Ms Perry’s statement and contemporaneous records referred to symptoms in the right wrist and the findings on assessment by the Medical Assessor were largely consistent (in this respect) with that of the appellant’s qualified expert, Dr Bosanquet;
(j) in the circumstances the Medical Assessor did not stray aside of the scope of his jurisdiction and accordingly no error has occurred and Ground 1 should be dismissed;
(k) Ground 2 – pre-existing conditions and s 323 of the 1998 Act – it is not sufficient for there to changes simply be some degenerative changes shown on radiology. The degenerative must be a contributing factor to the impairment;
(l) the Medical Assessor has set out in response to question 8(e) that he was of the opinion that no proportion of impairment was due to a previous injury, pre-existing condition or abnormality. In response to question 10(c) he compared his opinion to that of Drs Negus and Bosanquet. The Medical Assessor agreed with the assessment of Dr Negus (no deduction pursuant to s 323) and disagreed with the assessment of Dr Bosanquet (50% deduction pursuant to s 323). The Medical Assessor’s reasons are clearly articulated;
(m) there was simply a difference of opinion between Drs Negus and the Medical Assessor on one side and that of Dr Bosanquet on the other;
(n) the absence of comment by the Medical Assessor of the X-Ray of the right femur dated 29 September 2017, did not mean that the report was not considered. In any event the Medical Assessor did make express comment on the reports taken both before and after the 29 September report (9 August 2017 and 11 January 2020). Further the 29 September 2017 X-Ray referred to the ‘mild OA’ being seen at the superior aspect of the right hip. The injury result in a midshaft femoral fracture, and
(o) there is no error on the part of the Medical Assessor and Ground 2 should be dismissed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
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 Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “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 Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – assessment of additional body parts which did not form part of the referral
The appellant submitted that the Medical Assessor fell into error in assessing the right wrist which did not form part of the referral. The appellant submitted that Ms Perry had not made a claim for lump sum compensation in relation to the right wrist and the referral to the Medical Assessor did not request an assessment of the right wrist.
The Appeal Panel reviewed the history of this claim.
In the Discharge Summary from Nepean Hospital dated 31 July 2017, Dr Julian Quigley noted than an X-ray of the right hand, including wrist was carried out. He reported; “No acute fracture or dislocation detected. Degenerative changes are present.”
In the Employer Injury Claim Form dated 4 August 2017 under “Body Parts Affected” it was noted “right leg, Right arm/hand.”
In the letter of claim dated 2 December 2021, Ms Weston’s solicitor enclosed a Permanent Impairment Claim Form dated 2 December 2021 and a report of Dr Jonathan Negus dated 21 October 2021. The Permanent Impairment Claim Form referred to an injury on 25 July 2017 and set out the body systems affected in an addendum. The addendum referred to “Right Thumb, Right Hip, Right Femur, Right Knee and Scarring”. The report of Dr Negus dated 21 October 2021 was attached in support of the claim.
The report of Dr Negus, dated 21 October 2021, referred to a fracture on the right femur, fracture of the distal phalanx of the right thumb and some consequential pain in the lumbar spine and right ankle. Dr Negus assessed 9% WPI in respect of the right thumb and 18% WPI for the right hip and knee. He made no comment is respect of the right wrist.
In the s 78 Notice dated 2 May 2022, the insurer, GIO, disputed the claim for s 66 compensation on the basis that there was no injury to the right knee and the accepted physical injury had not resulted in more that 10% WPI. The insurer stated that liability had already been accepted for injury to the right thumb and right femur. Reference was made to an assessment by Dr Bosanquet of 4% WPI for the right thumb and 3% WPI for the right hip.
The report of Dr Bosanquet, dated 6 April 2022, described current symptoms in the right thumb as follows:
“There is pain in cold weather and a constant ache. The thumb is shorter following surgery and has restricted movement causing difficulty doing up buttons or writing.She has difficulty using a knife and fork and is unable to cut steak. Her son prepares the food. She is unable to lift anything heavy, such as a saucepan and tends to use her left hand much more commonly”.
On examination, Dr Boseanquet noted:
“Her right thumb was short by 1cm. The IP joint was fused in neutral position. The MP joint was stiff and movements were painful. The joint was extended at 50°and she had only 40° of abduction and adduction. There was 2cm opposition. She had full flexion and extension in her fingers and was able to flex all her fingers into the palm. In her right wrist there was 50° of extension, 30° flexion, radial and ulnar abduction were both 20°.”
Dr Bosanquet assessed a 41% thumb impairment which he converted to a 16% hand impairment, and then a 14% upper extremity impairment which resulted in 8% WPI. He then deducted one half for a pre-existing condition resulting in an assessment of 4% WPI for the right thumb.
In a statement dated 14 July 2023, Ms Perry referred to injuries including a fracture of the right femur, fracture of the right thumb and injury to the right knee and hip. She referred to the right thumb being painful all then time and stiff and stated that she had lost function in her right hand because of the ongoing problem. She stated that she had completely changed the way that she held anything in the right hand and had changed the way she held the steering wheel when driving because of the problems she had in the thumb and hand.
In the ARD, under “Injury Details” the type of injury was noted as “Personal” with a date of injury of “25 July 2017”. Under “Injury description/Cause of Injury and Death” the following was inserted:
“The claimant was injured in the course of her employment with Sefar Printing & Filtration Solutions on 25 July 2017 when she tripped and fell. As a result, the claimant sustained fractures to the right femur and thumb and injury to her right knee and right hip”.
The ARD contained a further section headed “Permanent Impairment/Pain and Suffering”. In this section the following details were included:
“Date of Injury 25/07/2107
Systems Claimed “Right lower extremity
Systems Claimed: Left (sic) upper extremity”
In the Certificate of Determination – Consent Orders dated 12 September 2023, Member Isaksen made the following orders:
“1. The ARD is amended to delete: ‘injury to the right knee’ and to include: ‘the applicant suffered a consequential condition affecting the right knee’.
2. The matter is remitted to the President for referral to a Medical Assessor as follows:
Date of injury: 25 July 2017
Body Parts: Right upper extremity (thumb)
Right lower extremity (hip)
Right lower extremity (knee – as a consequential condition)
Method of Assessment: Whole Person Impairment
3. The following documents are to be forwarded to the Medical Assessor:
(a) ARD with attachments; and
(b) Reply with attachments”.
The “Referral for Assessment of Permanent Impairment to Medical Assessor” (the referral) was made on 14 September 2023 and noted the following:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 25 July 2017
Body part/s referred: Right upper extremity (thumb), Right lower
extremity (hip), Right lower extremity (knee – as a consequential condition)
Method of assessment: Whole person impairment.”
In the MAC, under “Brief History of the incident/onset of symptoms and of subsequent related events, including treatment”, the Medical Assessor noted:
“Mrs Perry related that on 25/07/17, she missed her footing at work, tripped and fell forward, landing mostly on her right side. She had instinctively put her right hand out to try to save herself and came down hard onto this arm. She also impacted hard with her right side. This resulted in a fracture to part of the right thumb and also to the right femur.”
Under “Summary of injuries and diagnoses” the Medical Assessor noted:
“Summary of injuries and diagnoses:
Mrs Perry gives a history of slipping, falling and coming down hard mostly onto her right side. This occurred in late July 2017. As a result she sustained a fracture to the right femur and also injury to her right thumb. The thumb has been managed by a fusion at the inter-phalangeal joint. The fractured femur was managed by an intra-medullary rod, which has given a reasonable result. At this assessment she had discernible dysfunction of the right hip, knee, thumb and wrist”.
In commenting on the other medical opinions, the Medical Assessor wrote:
“Specialist Orthopaedic Surgeon, Dr John Bosanquet in his report of 06/04/22 describes significant reduced movement of the right wrist, yet does not include this in the whole person impairment. With great respect, I believe this should be included since there is no other history (at all) of dysfunction of the right wrist and she did come down very hard on her right arm”.
The claim was made with respect to a personal injury which occurred in the course of employment on 25 July 2017. Ms Perry’s claim was based on the assessment of WPI in the report of Dr Negus dated 21 October 2021. Dr Negus did not include any assessment of impairment of the right wrist, nor did he include any examination findings or diagnosis in respect of the right wrist.
The ARD referred to a fracture of the right thumb. No reference was made in the ARD to the right wrist.
The orders in the Certificate of Determination Consent Orders dated 12 September 2023 reflected an agreement between the parties that the matter be remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (thumb), right lower extremity (hip) and right lower extremity (knee – as a consequential condition).
The Referral dated 14 September 2023 referred for assessment the right upper extremity (thumb), right lower extremity (hip) and right lower extremity (knee – as a consequential condition).
Ms Perry argued that the decision in Skates represented a departure from the view that the Medical Assessor was bound by the referral with both Leeming and McCallum JJA stating that what is referred for assessment by a Medical Assessor was the “medical dispute” not body parts. The observations of the Court of Appeal in Skates, confirmed that the exchange of correspondence and medical evidence relevant to the claim, identified the scope of the medical dispute.
The appellant referred to the following paragraphs in Skates where at [47]-[48] Leeming JJA stated:
“47. Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission.”
At [81] McCallum JA stated that:
“81. … But more importantly, the focus on body parts is apt to distract attention from the precise matter to be assessed and certified by the approved medical specialist. Parts 4 and 5.6 of the application to resolve a dispute had to be read together and in the context of the statutory regime explained above. The legislation contemplates the referral of a ‘medical dispute’, being one of the matters specified in s 319 (here, the degree of permanent impairment of the worker as a result of his injuries). Part 4 of the application specified the relevant injuries; part 5.6 specified the body systems claimed to have impairment as a result of those injuries.”
However, in Skates, the matter was referred back for re-assessment because the parties were aware that the medical dispute included the left wrist and the employer/insurer in Skates conceded that the left wrist, which was omitted in the referral, should have been assessed. In this case, the appellant has not conceded that the injury to be assessed included an injury to the right wrist.
In this case, the parties consented to orders being made in the Certificate of Determination (COD) that the matter be remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (thumb), right lower extremity (hip) and right lower extremity (knee – as a consequential condition).
Ms Perry did not seek to object to the terms of the referral before the assessment when any issue as to the nature of the injury could have been determined by a member of the Commission. There was no explanation by Ms Perry as to why the appellant did not object to the terms of the referral.
The Appeal Panel considered that the medical dispute identified between the parties was a dispute concerning the degree of impairment to the right upper extremity (thumb), right lower extremity (hip) and right lower extremity (knee – as a consequential condition)as a result of the personal injury on 25 July 2017.
Clearly the appellant was bound by the conduct of his case. The appellant was bound by the ARD filed on 22 February 2023, Dr Negus’ report of 21 October 2021 upon which the claim was based, as well as the treating material, the COD dated 12 September 2023 and the referral to the Medical Assessor which all indicated that the dispute between the parties concerned the degree of impairment to the right upper extremity (thumb), right lower extremity (hip) and right lower extremity (knee).
The Appeal Panel was satsified that the Medical Assessor erred in making an assessment in respect of the right wrist. The Appeal Panel therefore determined that the assessment made in respect of the right wrist should be removed from the assessment of WPI.
Ground 2 – s 323 deduction
The appellant submitted that the Medical Assessor erred in deciding not to make a deduction under s 323 of the 1998 Act for impairment due to previous injury or pre-existing condition or abnormality in his assessment of the right hip. The appellant noted that the Medical Assessor when addressing the application of s 323 relating to the right hip, wrote “there is no convincing evidence of significant preexisting dysfunction of either joint structure and certainly no history of associated dysfunction”. The appellant argued that the relevant test when applying s 323 of the 1998 Act was not whether there was any significant pre-existing dysfunction but whether the pre-existing injury, pre-existing condition or abnormality caused or contributed to the impairment.
The Medical Assessor under “Details of any previous or subsequent accidents, injuries or conditions” wrote: “There has been no pre-existing condition of her right forequarter, nor her right lower limb.”
The Medical Assessor under “Evaluation of Permanent Imapirment” at 8 (e) was of the opinion that no proportion of impairment was due to a previous injury, pre-existing condition or abnormality.
In commenting on other medical opinions and findings at 10(c) the Medical Assessor compared his opinion to those of Drs Negus and Bosanquet. The Medical Assessor agreed with the assessment of Dr Negus that no deduction be made pursuant to s 323 and disagreed with the assessment of Dr Bosanquet, who had made a 50% deduction pursuant to s 323. The Medical Assessor wrote:
“Dr Negus also quite categorically states that there is no significant pre-existing condition which would necessitate the application of any deduction. I would agree with this view.
…
Dr Bosanquet also advises that there is a significant pre-existing degenerative element for which he deducts half of the impairment of the right upper extremity and also of the right lower extremity. With great respect, I believe this is very excessive. There is no convincing evidence of significant pre-existing dysfunction of either joint structure and certainly no history of associated dysfunction.”
The Appeal Panel did not consider that the Medical Assessor at Part 10c when he wrote “there is no convincing evidence of significant preexisting dysfunction of either joint structure and certainly no history of associated dysfunction” was applying the test to be applied under s 323. In the Appeal Panel’s view, the Medical Assessor was explaining why he differed from Dr Bosanquet’s view that a deduction should be made for a pre-existing condition and was giving reasons for this difference of opinion. The fact that there was no “convincing” evidence of significant pre-existing dysfunction the hip and certainly no history of associated dysfunction was relevant when considering whether there was a pre-existing condition that required the application of s 323.
The Appeal Panel was not persuaded when reading the whole of the MAC that the Medical Assessor applied the wrong test under s 323.
The appellant referred to the absence of comment by the Medical Assessor of the X-ray of the right femur dated 29 September 2017. The fact that there was no specific reference to that report did not mean that the report was not considered. The Medical Assessor did comment on the reports taken both before and after the 29 September report, that is, the reports of 9 August 2017 and 11 January 2020. Dr Bosanquet referred to the X-ray report of 29 September 2017, including the comment “Mild osteoarthritis noted at the superior aspect of the right hip”, and it was clear that the Medical Assessor had read and considered Dr Bosanquet’s report.
The Appeal Panel was not persuaded that the Medical Assessor failed to take into account the fact that the X-ray of 29 September 2017 showed that Ms Perry had mild osteoarthritis at the superior aspect of the right hip.
The appellant submitted that the Medical Assessor did not take into account the opinion of Dr Bosanquet concerning the appropriate s 323 deduction. The Medical Assessor referred to Dr Bosanquet’s report and the deduction of 50% and disagreed with that deduction. This was a difference of opinion between the Medical Assessor and Dr Bosenquet and not a situation where the Medical Assessor failed to take into account relevant evidence.
Dr Negus, in his supplementary report of 19 September 2022, considered the question of whether a deduction should be made under s 323 and wrote:
“I have read the report of Dr Bosanquet dated 06/04/2022.
I disagree with his opinion that teer was significant pre-existing hip disease and the injury aggravated pre-existing disease. The x-ray from 09/08/2017 shows the femoral fixation also demonstrated that hip joint with no evidence of any significant degenerative changes. He includes this image in his report where he states ‘the hip joint intact’. There is no mention of degenerative disease. The first mention of ‘mild osteoarthritis’ is in the x-ray femur 29/9/2017.
…She describes her hip pain as more recent…
Therefore I still do not apply any deduction for pre-existing disease in the hip.”
The Appeal Panel considered that it was open to the Medical Assessor on the evidence to find that no deduction should be made pursuant to s 323 for any pre-existing condition in the right hip. The Appeal Panel found no error or application of incorrect criteria in the second ground of appeal.
In summary, the Appeal Panel was satisfied that the Medical Assessor erred in making an assessment in respect of the right wrist. The Appeal Panel therefore determined that the assessment made in respect of the right wrist should be removed from the assessment of WPI. This resulted in an assessment of 11% upper extremity impairment or 7% WPI for the right upper extremity (thumb). When this 7% WPI was combined with 11%WPI assessed for right lower extremity, this produced a total of 17 %WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 October 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: | W5827/23 |
Applicant: | Cheryl Perry |
Respondent: | Sefar 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 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 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.Right upper extremity (thumb) | 25/7/2017 | Chapter 2 Page 10 | P456 P456 F16-15 P459 P439 T16-03 | 7% | Nil | 7% |
| 2.Right lower extremity (hip and knee -consequential) | 25/7/2017 | Chapter 3 Page 13 | P537 T 17-09 and T17-10 P527 T17-03 | 11% | Nil | 11% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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9
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