Selkirk v Frontier Assembly Pty Ltd
[2024] NSWPICMP 32
•23 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Selkirk v Frontier Assembly Pty Ltd [2024] NSWPICMP 32 |
| APPELLANT: | Matthew James Selkirk |
| RESPONDENT: | Frontier Assembly Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 23 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker suffered an injury to his right leg as a result of which he suffered a deep venous thrombosis in his left leg and pulmonary embolus; assessment of impairment as a result of left leg condition; Medical Assessor (MA) assessed on basis of range of ankle movement, swelling and altered neurological sensation; appeal related to swelling only; assessment of swelling in class 2 of Table 17-38 of AMA 5 was open to MA; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 October 2023 Matthew James Selkirk 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 11 October 2023.
Mr Selkirk 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 was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). 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 Selkirk was employed by Frontier Assembly Pty Ltd (Frontier) as at 29 March 2021 to work on the installation of a walkway constructed from heavy metal grates. While fitting slings to a pallet of grates to enable them to be moved by crane, his right leg became jammed between two pallets, resulting in severe bruising and grazing. After about two weeks, Mr Selkirk returned to work and while he was driving an excavator he experienced cramping in his left calf which was diagnosed as deep vein thrombosis. Despite treatment, he suffered a pulmonary embolus. He continues to take pain management medication.
The Medical Assessor was asked to assess Mr Selkirk’s left lower extremity and scarring. He assessed 12% whole person impairment (WPI) in respect of his left leg and 0% for scarring. In respect of the left leg, the assessment was comprised of 20% lower extremity impairment (LEI) as a result of swelling, 9% in respect of the loss of the range of movement of Mr Selkirk’s ankle and 6% in respect of neurological dysfunction.
The appeal relates only to the assessment of swelling under Table 17-38 of AMA 5.
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 Selkirk to undergo a further medical examination because the Medical Assessor’s assessment was open to him in the exercise of his clinical judgement and does not disclose error.
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 in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Selkirk submitted that the Medical Assessor did not put his mind to all of the criteria in Table 17-38 of AMA 5. He said that the Medical Assessor noted 1.5 cm swelling of his left leg which was evidence of marked oedema and that he noted that oedema was incompletely controlled by elastic supports. He said that the Medical Assessor did not ask him about all of the criteria for assessment under Table 17.38.
Mr Selkirk said that he should have been assessed in class 3 of Table 17-38. He also submitted that the Medical Assessor was in error in his description of Dr Ackroyd’s assessment under that table, saying that Dr Ackroyd had assessed him at the top end of class 2, not the middle of class 2 as the Medical Assessor said. Mr Selkirk sought re-assessment.
In reply, Frontier submitted that there is no definition of persistent oedema and marked oedema in Table 17-38 and that the Medical Assessor’s assessment was open to him. Frontier noted that assessment in class 2 did not require satisfaction of all of the alternatives and that it was open to the Medical Assessor to assess the worker based on his own observations. Despite Mr Selkirk’s submission that the Medical Assessor did not ask about his ability to walk without claudication, there were a number of references to his ability to walk. Frontier said that Mr Selkirk did not make any complaint about claudication to the other medical examiners. Frontier said that the Medical Assessor’s error in describing Dr Ackroyd’s opinion was not material.
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 Campbelltown City Council v Vegan[1] 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.
[1] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a history of the injury and Mr Selkirk’s treatment. He described Mr Selkirk’s present symptoms:
“He experiences a burning pain in the left leg, mostly between the knee and the ankle and mostly anteriorly. There is occasional swelling of the left ankle. His mobility is very grossly reduced and his sleep is disturbed because of this condition.”
The Medical Assessor said:
“He is able to do his housework, although this is difficult and he does it by instalments. He can just about manage half an hour on the whipper snipper, although his son uses the lawnmower.”
The Medical Assessor set out his findings on examination, noting that Mr Selkirk was in a great deal of pain with his left leg and that he walked with a left sided limp. He said:
“The legs were equivalent in length. The left thigh and calf were each 1.5 cm greater in circumference than on the right.
…
When he came into the assessment he was wearing an elastic Tubigrip over the left lower leg, which was removed for the assessment.”
Summarising the injuries and diagnoses, the Medical Assessor said:
“Mr Selkirk gives a history of a crush injury which occurred to his right lower leg in late March 2021. The actual injuries to the right leg seem to have been relatively minor, although would naturally have caused extreme concern at the time.
Rather ironically, he developed a deep vein thrombosis on the left (contra-lateral side). This was managed by anticoagulation. Again, rather ironically in spite of this, he developed a pulmonary embolus. His anticoagulation has continued since then. At this assessment he continues to have gross dysfunction of the left lower leg with continued swelling and hyper-sensitivity.”
Explaining his calculations, the Medical Assessor said:
“Left Lower Extremity. Three factors contribute to Mr Selkirk’s left lower extremity impairment:
(i)Persistent lower leg swelling
(ii)Reduced movement of the left ankle complex
(iii)Altered neurological sensation in the left lower leg
Swelling. This is addressed in AMA 5 Page 554, Table 17-38. Mr Selkirk continues to have persistent swelling of the left lower leg which is incompletely controlled by elastic supports. This places him into Class II, which provides a lower extremity impairment ranging between 10% and 39%. The mid-range is selected as appropriate, with 20% lower extremity impairment.”
The Medical Assessor summarised the opinion of Dr Patrick in the report he prepared on Mr Selkirk’s behalf and explained why he disagreed. With respect to Dr Ackroyd’s report, he said:
“Specialist Vascular Surgeon, Dr Nigel Ackroyd in his report of 09/05/23 selects Table 17-38 on Page 554 with persistent swelling of the left lower leg. He advises that Mr Selkirk’s condition is somewhere in the mid-range and applies a whole person impairment of 16%. With great respect, I believe this should be 16% lower extremity impairment. (This particular table in Class II gives a range of impairment between 10% and 39% lower extremity impairment.)”
Table 17-38
Table 17-38 is used to assess lower extremity impairment due to peripheral vascular disease. Adopting the screenshot from Frontier’s submissions, it provides:
[IMAGE UNABLE TO RENDER]
Mr Selkirk said that he should have been assessed in class 3 rather than class 2.
As Frontier’s submissions note, assessment in class 1 requires that all of the features be present but for each of classes 3 to 5, there are three alternatives. Claudication is one of those alternatives and is experienced as pain in the legs on exercise, caused by inadequate blood flow and generally relieved with rest. It is usually experienced as a result of arterial disease. Because Mr Selkirk did not suffer an arterial problem, it is essentially irrelevant to the assessment of his condition. It does not follow that any limitation on walking since the injury is on the basis of intermittent claudication because this is a feature of arterial disease rather than venous disease. None of Mr Selkirk’s treating doctors indicate that Mr Selkirk suffers from arterial disease affecting the lower extremities.
Though it is brief, the Medical Assessor took an appropriate history of the impact of the injury on Mr Selkirk’s activities.
Dr Patrick did not assess Mr Selkirk under Table 17-38. Mr Selkirk did not argue that Dr Patrick’s method of assessment should be adopted and we do not need to consider it.
The third alternative is not relevant to Mr Selkirk’s injury.
The medical reports in the file show that Mr Selkirk has suffered ongoing swelling in his left leg since the injury. The Medical Assessor was required to record his observations on the day of the assessment. He observed that Mr Selkirk’s left calf and ankle were 1.5cm greater than the right. Although that swelling is relevant, it was open to the Medical Assessor to assess it as moderate rather than marked.
Once he had made that assessment and had placed Mr Selkirk in class 2, it was up to the Medical Assessor to determine where his injury should be assessed in the range between 10 and 39% LEI. He chose the middle of that range at 20% LEI which he then combined with the assessments for the reduced range of movement of Mr Selkirk’s ankle and the neurological dysfunction in his lower leg. That assessment was open to him.
Dr Ackroyd’s assessment
The Medical Assessor was required by the Guidelines to make his own assessment of Mr Selkirk’s presentation on the day of the examination.[2] While it was appropriate for him to comment on the other assessments in the file, he was not bound to adopt the assessment made by any examiner or to choose between the assessments.
[2] Guidelines paragraph 1.6.
In State of New South Wales (NSW Department of Education) v Kaur[3] (Kaur) Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[3] [2016] NSWSC 346.
Dr Ackroyd also assessed Mr Selkirk in class 2 under Table 17-38 because he suffered measurable swelling incompletely controlled by elastic stockings. He assessed Mr Selkirk at the upper end of the range being 39% LEI which converts to 16% WPI. He did not assess loss of the range of motion of Mr Selkirk’s ankle nor any neurological dysfunction. He did not observe significant oedema.
We observe that Dr Ackroyd’s own findings do not support assessment at the upper end of the range for class 2, including his observations that there were features of Mr Selkirk’s symptomatology which were out of proportion to the findings on examination and “there was no undue to swelling of the leg nor any of the other features that one might associate with a severe post-phlebitic syndrome”.
The Medical Assessor did misinterpret Dr Ackroyd’s assessment to suggest that it was less than his own but that error was not material to the Medical Assessor’s own assessment on the day of his examination.
For these reasons, we have determined that the MAC issued on 11 October 2023 should be confirmed.
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