Shiba v Southern Steel Supplies Pty Ltd
[2024] NSWPICMP 373
•11 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Shiba v Southern Steel Supplies Pty Ltd [2024] NSWPICMP 373 |
| APPELLANT: | Jacoub Shiba |
| RESPONDENT: | Southern Steel Supplies Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 11 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against assessment of scarring; Medical Assessor conducted an assessment of scarring whilst the appellant was wearing a shoulder brace; conclusion that there was no shoulder scarring a demonstrable error; re-examination; skin assessed as single organ; scarring present on shoulder and wrist; Held – Medical Assessment Certificate revoked; assessment of scarring of 2% whole person impairment combined with other assessments. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 January 2024 Mr Shiba lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Jonathon Negus, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 December 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
Mr Shiba commenced proceedings in the Personal Injury Commission (Commission) on 3 July 2023 claiming lump sum compensation arising out of injury that occurred on 29 March 2017. The claim for permanent impairment was for 15% total whole person impairment, based on an assessment performed by Dr Habib in a report dated 14 February 2023. That assessment relied on body part assessments of 5% whole person impairment of the right wrist, 9% of the left shoulder, and 1% for scarring.
A/Prof Miniter provided a report for the respondent, assessing 0% whole person impairment. The respondent raised other disputes in various s 78 notices, but those are not relevant for the purposes of this decision.
The dispute proceeded through conciliation and was referred, by consent, to a Medical Assessor for assessment of the right upper extremity (right wrist/forearm), left upper extremity (shoulder) and TEMSKI/scarring.
Medical Assessor Negus was appointed to assess the worker. The examination proceeded on 27 October 2023. The Medical Assessor provided the following assessment of the body parts referred:
(a) Right upper extremity: 4%
(b) Left upper extremity: 9%
(c) Scarring: 1%
This resulted in a total whole person impairment of 14%.
Two things are noted about this assessment. These have no bearing on the Panel’s determination of these proceedings. Firstly, it is below the relevant threshold to claim work injury damages pursuant to s 151H of the Workers Compensation Act 1987, of 15% whole person impairment. Secondly, the difference between the assessment of Dr Habib, the appellant’s independent medical expert, and the Medical Assessor was 1% whole person impairment, based on the assessment of the right upper extremity (wrist).
The appellant lodged an appeal against the assessment of the Medical Assessor on 8 January 2024.
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.
In the Application to Appeal, the appellant indicated that they requested that a Medical Assessor member of the Appeal Panel re-examine the worker. The respondent’s submissions did not address the point, although the Notice of Opposition indicates that the respondent was of the view that the Appeal Panel could determine the appeal solely on the basis of the written application and written notice of opposition lodged.
The Appeal Panel considered the position of the parties. For the reasons that will be set out below, the Appeal Panel is satisfied that the MAC contains a demonstrable error. The material attached to the application, attaching photographs of the appellant’s shoulder, are insufficient to properly consider the issue of scarring. Accordingly, the Appeal Panel determined that it was necessary that the appellant be re-examined by a Medical Assessor member of the Appeal Panel.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a series of 31 photographs taken on 20 December 2023 of the worker’s left shoulder.
The appellant submits that the photographs are simply photographs of the worker’s left shoulder. The appellant submits that the information is “in the normal course not ‘additional’” but are provided in circumstances where the Medical Assessor has opined that there are no surgical scars of the left shoulder. The appellant submits that it is appropriate that the Panel are able to observe photographs of the worker’s shoulder. It is submitted that this is not fresh or additional evidence, as this was the same shoulder that was observed by the Medical Assessor. The photographs are said to show arthroscopic portal scars and corroborate the findings of Dr Habib and A/Prof Miniter, who both state they observed scars in the shoulder.
The appellant submits that the photographs are necessary for the appeal, in the unusual circumstances where the Medical Assessor stated he did not observe any scarring on the shoulder.
The respondent’s submissions do not address this point at all, other than to reference the existence of the 31 photographs attached to the appeal.
The Appeal Panel determines that the evidence should not be received on the appeal because the evidence provided does not fit within the statutory power granted by s 328(3) of the 1998 Act.
The appellant’s submissions do not address the statutory test set out in s 328(3). The appellant does not consider or explain how that material is “fresh evidence or evidence in addition to or in substitution for the evidence received”. There is nothing “fresh” about the evidence – it constituted photographs taken after the medical assessment was conducted. The appellant acknowledges as much in their submission, where, by his own admission, the material would not be considered in the normal course to be additional. The Appeal Panel notes that the appellant relies on the evidence to be “fresh evidence” pursuant to s 328(3) of the 1998 Act rather than as a ground of appeal pursuant to s 327(3).
Further to the above, the appellant has not explained how the material fits within the second proviso contained in s 327(3), being that the material was not available and could not reasonably have been obtained by the appellant before the medical assessment. The appellant could have obtained the photographs at any point during the proceedings.
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.
Further medical examination
Medical Assessor Drew Dixon of the Appeal Panel conducted an examination of the worker on 31 May 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
The Appeal Panel has considered the MAC in full, with specific reference to the issues on appeal.
The Medical Assessor takes a history of the onset of shoulder pain. He refers to the surgery that occurred in 2021:
“He consulted Todd Gothelf about his shoulder and was referred back to Dr Dao and underwent left shoulder arthroscopy and subacromial decompression with biceps tenodesis in Bankstown Public Hospital on 12/11/2021. He had physiotherapy post-operatively and has found minimal improvement and still struggles to lift his arm.”
The following is recorded concerning the Medical Assessor’s examination of the shoulder: “His shoulder had no surgical scars. He was, however, in a soft shoulder brace.” He went on to record the following in relation to the examination of the wrist:
“He had a dorsoradial traumatic scar over the right wrist from where the beam lacerated his skin. He also had volar wrist scars consistent with the insertion of and removal of the metal plate. He was in a wrist brace.”
The Medical Assessor went on to assess permanent impairment of the left shoulder and right wrist. In relation to the relevant issue in dispute here, being scarring, he provides:
“TEMSKI – he has traumatic and surgical scars which have colour contrast, he is aware of them and they are not hidden with usual clothing. They don’t interfere with ADLs. 1%”
The finding of 1% for scarring is reflected in the table on the final page of the MAC.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor’s assessment of scarring of 1% whole person impairment is the application of incorrect criteria, with reference to Table 14.1 of the NSW workers compensation guidelines for the evaluation of permanent impairment, 4th edition (the Guidelines). The appellant submits that the correct application should be 2% whole person impairment, but does not expand upon this submission.
The appellant also relies on the ground that the MAC contains a demonstrable error. The submissions relying on this ground are more discursive, with reference to parts of the MAC where the Medical Assessor examined the assessment and the conclusions reached on that basis. The appellant submits that the Medical Assessor’s finding that there are no surgical scars at the left shoulder is an error.
In support of this ground, the appellant refers to the shoulder surgery undertaken by Dr Dao, the reference to arthroscopic portal scars in the assessment of Dr Habib, and the assessment of A/Prof Miniter, who reports scars consistent with arthroscopic surgery. The appellant submits that Dr Habib, Dr Dao and A/Prof Miniter all observed scars at the worker’s left shoulder. It is submitted that the finding that there were no surgical scars at the left shoulder is a demonstrable error.
Based on this, the appellant submits that the Medical Assessor’s assessment of scarring of 1% whole person impairment must be based on scarring of the wrist only. The appellant goes on to submit that where the scarring is based on the wrist only, the presence of scars in the left shoulder would warrant an assessment of 2% whole person impairment.
The appellant refers to the photographs attached to the appeal and submits that the appellant should be re-examined by a Medical Assessor of the Panel, as relying on the photographs only will not provide the Panel with the ability to assess trophic changes.
In reply, the respondent submits there is no error on the face of the MAC. The respondent notes that the worker was in a soft shoulder brace during the examination. The respondent submits that the worker was required to allow the Medical Assessor to assess his left shoulder at the time of examination, and this was not an error made by the Medical Assessor.
The respondent also refers to the report of Dr Habib, who assessed 1% whole person impairment for scarring, consistent with that provided by the Medical Assessor. The respondent submits that the Medical Assessor is required to make his findings based on consultation with the worker and his physical findings, and that the Medical Assessor assessed the appellant as he presented on the day of assessment. On that basis, the MAC should be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The issue in dispute in this case is limited. The appellant’s submissions are addressed only to the assessment of scarring undertaken by the Medical Assessor. The Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review “is limited to the grounds of appeal on which the appeal is made.” Because the gateway function of the Registrar is satisfied if “at least one of the grounds” has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, 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.”
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 issue on appeal in this matter is confined to the Medical Assessor’s assessment of scarring. No ground has been raised to the other assessments made by the Medical Assessor.
The appellant submits that the Medical Assessor erred in finding that Mr Shiba had no surgical scars on his left shoulder. Based on a review of the MAC and the material referred to the Medical Assessor, the Appeal Panel accepts that submission. The Appeal Panel has not admitted into the material the fresh evidence relied on by the appellant and has not relied on those photographs to reach that conclusion. However, there is sufficient material to determine that the Medical Assessor’s conclusion that there were no scars on the shoulder was incorrect.
Dr Dao performed shoulder surgery on Mr Shiba on 12 November 2021. The procedure performed, being a left shoulder subacromial decompression and biceps tenodesis, would have necessarily involved some element of scarring to the shoulder. The existence of scars on the left shoulder are confirmed by other assessments of Mr Shiba, including Dr Habib, A/Prof Miniter, and Dr Dao.
The Appeal Panel notes that at the time of the examination, Mr Shiba was in a soft shoulder brace. It may be that the shoulder brace obscured the scars present leading to the Medical Assessor to conclude that there were no scars. It is the Appeal Panel’s view that consideration of whether scars were present on the shoulder should have been undertaken without the shoulder brace.
In response to this, the respondent submits that the worker was required to allow the Medical Assessor to examine his left shoulder at the time of the examination, and this was not an error on behalf of the Medical Assessor. This appears to be a suggestion that the worker impeded, or did not assist the Medical Assessor in performing his examination. The Appeal Panel does not accept this submission. It is not incumbent upon a worker to inform the Medical Assessor how impairment should be assessed. There is nothing in the MAC to suggest that the worker was not cooperative or refused to remove the shoulder brace.
Accordingly, and as set out above, the Appeal Panel is satisfied that the MAC contains a demonstrable error. There is insufficient material available to properly assess the worker and accordingly the Appeal Panel determined that the worker should be re-examined by a Medical Assessor member of the Appeal Panel. The worker must be assessed in accordance with 14.5 of the Guidelines, which provides:
“The skin is regarded as a single organ and all non-facial scarring is measured together as one overall impairment, rather than assessing individual scars separately and combining the results.”
Accordingly, the entirety of the scarring is to be examined by the Medical Assessor undertaking re-examination of Mr Shiba. It is not appropriate to simply combine whatever impairment is found in the left shoulder (if present) with the wrist scarring assessed by the Medical Assessor.
Medical Assessor Drew Dixon undertook a re-examination of the worker on 31 May 2024. Mr Shiba was wearing a soft shoulder guard at the time of assessment which was removed prior to the examination. His report of that examination appears as below:
“This claimant was re-examined with respect to his post-traumatic and surgical scarring following work place injuries on 29 March 2017.
He had assessment by Dr Jonathan Negus and the MAC was done on 12 December 2023.
The Panel accepted his findings for the range of motion impairment for the injured right wrist and forearm and for the left shoulder consequential condition but there was a discrepancy for the assessment of the scarring, where he inadvertently left out the scarring of the left shoulder.
The claimants’ original injury was a fracture to his distal radius when he was placing a wooden plank under a beam, using a crane to lift the beam when the beam slipped and the steel chain holding the beam landed onto his right wrist. He was taken to Bankstown Public Hospital where he had open reduction and internal fixation of the right distal radial fracture. He was splintered in plaster then put in a brace.
He became reliant on his left shoulder during the month of April for doing household chores such as cooking and showering and when he returned to work doing light duties on 1 May 2017, he developed further left shoulder pain when doing filing and was referred to Dr Sanki who organised a cortisone injection to the left shoulder.
He continued to have pain and stiffness in his right wrist as well as increasing pain and stiffness in his right shoulder and he consulted Dr Todd Gothelf and was referred back to Dr Dao and had left shoulder arthroscopy and subacromial decompression with biceps tenodesis at Bankstown Public Hospital on 12 November 2021.
He required analgesia for pain and continued to have pain and stiffness in his right wrist and left shoulder.
On review of his scarring at PIC on 31 May 2024 the volar scar of 8cm at his right wrist showed colour contrast and was visible with summer clothing and showed some loss of contour and was adherent distally. The claimant was able to readily localise it and remains conscious of it. He reports the scar was sensitive distally and if bumped would impact on his ADL's.
There was also a traumatic scar on the dorsum of his right wrist of some 3cm which showed visible suture marks with non-adherence and was non-tender and was reasonably healed.
At his left shoulder there was a 4cm biceps scar which was tender and showed colour contrast and proximal tethering was widened distally, where there was loss of contour. The scar is visible in a singlet and he was able to readily localise the scar. There were some trophic changes present and the claimant remains conscious of the scar.
There was also an arthroscopic portal scar on the top of his shoulder of 1cm with visible suture marks which was very noticeable in amongst the centre of a tattoo on the shoulder and the claimant was also able to localise this scar. It was non-tender but it showed trophic change and the claimant was readily able to localise it and remains conscious of it. Two other anterior and posterior arthroscopic portals were healed satisfactorily.
Overall, for his scarring at the left shoulder and right wrist, according to the TEMSKI Scale 14.1, Page 74 of the Guidelines, is 2% whole person impairment.
When this is combined with the impairment found by Assessor Jonathan Negus, in his MAC dated 12 December 2023, it gives a total of 15% whole person impairment.
He has reached maximum medical improvement.
There were no symptomatic pre-existing conditions.”
The Appeal Panel adopts the findings of Medical Assessor Dixon made on re-examination.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 December 2023 should be revoked, and a new MAC should be issued. The Medical Assessor’s assessment of the right upper extremity and left upper extremity loss of range of motion will be undisturbed. The assessment of scarring has changed following examination, and accordingly a new certificate is required.
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: | W4686/23 |
Applicant: | Jacoub Shiba |
Respondent: | Southern Steel Supplies 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 Jonathan Negus 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 SIRA 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-total/s % WPI (after any deductions in column 6) |
| Right upper extremity | 29/3/17 | Figures 16-28 &16-31 | 4 | 0 | 4 | |
| Left upper extremity | 29/3/17 | Figures 16-40, 16-43, 16-46, pp. 476, 477 & 479 | 9 | 0 | 9 | |
| Scarring | 29/3/17 | P 74 T 14.1 | 2 | 0 | 2 | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
2
0