Simmons v Janala Pty Ltd

[2023] NSWPICMP 645

DETERMINATION OF APPEAL PANEL
CITATION:	Simmons v Janala Pty Ltd [2023] NSWPICMP 645
APPELLANT:	Wayne Simmons
RESPONDENT:	Janala Pty Limited
APPEAL PANEL
MEMBER:	Richard J Perrignon
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	6 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether the assessor erred in omitting to assess scarring or peripheral nerve damage of the right upper limb; whether he erred in omitting to warn the appellant of a potential finding of inconsistency, and assessment by analogy; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant worker, Mr Simmons, appeals from the Medical Assessment Certificate of Medical Assessor McGroder dated 5 May 2023.

2. Medical Assessor McGroder examined the appellant on 2 May 2023 and assessed a 14% whole person impairment (WPI) (12% left upper extremity – wrist, hand, thumb, index finger, ring finger, little finger; 2% scarring and peripheral nerve damage) as a result of injury on 4 May 2017, when a heavy pallet fell to the ground from a forklift, bounced and hit him, and knocked him to the ground.

3. In assessing the left wrist, hand and fingers, Medical Assessor McGroder found that there was inconsistency in presentation of the kind referred to in the Guidelines at [1.36]. On that basis, he declined to assess by reference to range of motion, and instead assessed by analogy with injury to the left ulnar nerve, yielding 20% upper extremity impairment which converted to 12% WPI.

4. He assessed scarring by reference to the left upper extremity only, including scarring caused directly by injury (trauma scars) and surgical scarring.

5. Mr Simmons submits that the assessment of the left wrist, hand and fingers demonstrates error, because:

   (a)    he was not told of a potential finding of inconsistency or given an opportunity to respond to it, and was thereby denied procedural fairness,

   (b)    the Medical Assessor failed to consider or apply the standard or proof in Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 which was applicable to so serious a finding against him, and

   (c)    the Medical Assessor failed to give adequate reasons for his findings.

6. In respect of the right upper extremity, he also submits that the Medical Assessor should have assessed trauma scarring directly caused by injury, and peripheral nerve injury, but failed to do so.

7. The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

Submissions

1. The parties made written submissions which have been taken into account. They are not repeated in full but are summarised briefly below.

2. The appellant submits as follows:

   (a)    with respect to assessment of the left upper extremity:

   (i)the Medical Assessor found that there was ‘voluntary’ restriction of movement in the left upper extremity. That amounted to a finding of ‘dishonest and disgraceful conduct’ and that the worker ‘deliberately misled or attempted to mislead, a statutory decision maker’.

   (ii)Procedural fairness required that the inconsistencies giving rise to that finding be pointed out to the worker to afford him an opportunity to be heard on them. The failure to do so amounted to a denial of procedural fairness.

   (iii)The finding also amounted to a finding of fraud, which in turn required the application of the Briginshaw standard of proof, requiring that the decision maker reach a comfortable satisfaction with respect to the conclusion. The failure to apply this standard demonstrates error.

   (iv)The Medical Assessor failed to give reasons for forming the view that he did, in the absence of an explanation from the worker.

   (b)    With respect to scarring of the right upper extremity:

   (i)the President referred for assessment the left upper extremity, scarring and the peripheral nerve damage.

   (ii)In circumstances where, as here, the right upper extremity was injured on the same occasion as the left, this referral required the Medical Assessor to assess scarring on the right upper extremity as well as the left. His failure to assess scarring on the right limb demonstrates error.

   (c)    With respect to peripheral nerve damage of the right upper extremity:

   (i)the referral also required assessment of damage to the peripheral nerve of the right upper extremity as well as the left.

   (ii)The failure to assess damage to the peripheral nerve of the right upper extremity demonstrates error.

3. Janala Pty Limited (the respondent employer) submits as follows:

   (a)    with respect to assessment of the left upper extremity:

   (i)Dr McGroder found that there was inconsistency between the impairment of the left hand on examination and the fact that the worker continued to work as a truck driver, an occupation which he had described to his ownindependent medical expert, Dr Gehr, as ‘very physical’.

   (ii)The Medical Assessor did not find there was dishonesty or that the worker attempted to mislead the Medical Assessor.

   (iii)It follows that the Briginshaw standard does not apply.

   (iv)The worker had an opportunity to respond to the potential finding of voluntary restriction, because the insurer’s IME, Dr Breit, had made essentially the same finding in a report served on the worker. The worker could have addressed it at examination if he wished.

   (v)The Medical Assessor’s reasons for finding there was voluntary restriction were express, patent and detailed.

   (b)    With respect to scarring of the right upper extremity, the worker was not entitled to an assessment of the right upper extremity, even if the President’s referral is interpreted as requesting such an assessment, because:

   (i)injury to the right upper extremity was not pleaded in the Application to Resolve a Dispute, and

   (ii)his claim had been made on the basis of Dr Gehr’s assessment of 35% WPI with respect to the left upper extremity only.

   (c)    With respect to peripheral nerve damage of the right upper extremity, the respondent repeats its submissions above with respect to scarring.

Inconsistency and analogous assessment

1. Under the heading, “Present symptoms”, the Medical Assessor recorded – emphasis added:

   “On the left he said that there is significant pain involving the whole of his forearm, wrist and hand. He said that there is no strength in his left hand and he cannot move his thumb or any of his fingers. He cannot move his wrist. He said that his arm feels heavy and like a dead weight. He said that he has no function in his left lower arm.”

2. Under the heading, “Work history …” he recorded – emphasis added:

   “His injury was on 4 May 2017 and he was off work for one year an then returned to selected duties in the gatehouse. He did this for four months and then went back to driving. In April 2022 he obtained alternate employment as a driver doing local and country trips and some loading.”

3. On physical examination, he recorded at [5] – emphasis added:

   “There was no evidence of disuse involving the left upper extremity relative to the right with forearm circumference on the left being 30cm and on the right 31cm which is normal for a right hand dominant person. There was no wasting of the muscles of the hand or the thenar or hypothenar eminences.

   …

   On attempting to use a dynamometer to assess strength, on different settings he was noted to curl his fingers to the width of the grip but then exert no pressure. He was noted on various occasions to move his fingers and thumb to varying degrees.

   On formal assessment using a goniometer, however, he displayed no movement of any of the joints of his hand, his wrist or his thumb. There appeared, however, to be full movement if this was done actively.”

4. At [7], the Medical Assessor found:

   “In an accident at work on 4 May 2017 Mr Simmons sustained significant lacerations to the dorsum of his left forearm, wrist and hand. He sustained a scapholunate dissociation which was repaired surgically. He sustained avulsion fractures of the carpal bones.”

5. Under the heading “consistency of presentation”, he concluded – emphasis added:

   “There was voluntary restriction of range of movement of the left wrist and fingers and subsequently this could not be used for the assessment of impairment. He displayed a variable range of movement at different stages during his assessment.

   It is not medically consistent that he would be working as a truck driver with the degree of disability of his left upper extremity that he alleges.”

6. The Medical Assessor’s conclusion that “There was voluntary restriction of range of movement of the left wrist and fingers …” (emphasis added) flowed from the inconsistencies identified. In summary, they were:

   (a)    that there was movement in the joints of the left hand and wrist on some occasions and none on others, and

   (b)    that the worker was working as a professional driver, including loading duties, which must have required use (and therefore movement) of the left hand and wrist.

7. His use of the word “voluntary” was ambiguous. It is not clear whether he meant that the worker was deliberately feigning a lack of motion in his joints in order to fool the assessor, or whether he was wilfully avoiding movement for some other cause – for instance, because of pain or a perception of pain. Nothing turns on it, for the reasons which follow.

8. The duty to afford procedural fairness applies not only to judicial decision makers, but also to administrative decisions makers. As the Court of Appeal observed in Frost v Kourouche [2014] NSWCA 39 per Leeming JA:

   “[31] It was common ground that the [review panel reviewing a medical assessment under the Motor Accidents Compensation Act 1999] was obliged to accord procedural fairness to Ms Kourouche. The ‘common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97]. Gummow, Hayne, Crennan and Bell JJ placed quotation marks around ‘common law’ to explain that it was unproductive and a false dichotomy to ask whether the obligation to accord procedural fairness was a common law duty or an implication from statute, once it is observed that the principles and presumptions of statutory construction are part of the common law.

   [32] It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West (1985) 159 CLR 550 at 587 (‘the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it’). It is reflected in cl 1.43 of the ‘Permanent Impairment Guidelines: Guidelines for the assessment of permanent impairment of a person injured as a result of a motor vehicle accident’, dated 1 October 2007, which (like the Medical Assessment Guidelines) bound the members of the panel by reason of s 65(1) of the Act.”

9. In motor accidents assessments, the contents of the duty to afford procedural fairness is made explicit in the motor accidents Guidelines themselves. Though there is no equivalent provision in the Guidelines for assessment of workers compensation claims, a Medical Assessor is an administrative decision maker, and the common law duty to afford procedural fairness applies. Its content (as distinct from any statutory formulation) ‘extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond’: Frost at [32].

10. There is no evidence that the Medical Assessor told Mr Simmons about the particular inconsistencies which he identified or gave him an opportunity to respond. We are not satisfied that he did. It is no answer for the respondent to say that the worker might have guessed the Medical Assessor would identify the relevant inconsistencies, because another assessor (Dr Breit) did so on another occasion, and should have raised it without invitation from the Medical Assessor.

11. There would have been no need to do so unless the Medical Assessor was proposing to draw the conclusion that he did. The worker was given no notice that the Medical Assessor was considering making such a conclusion. He did not have an opportunity to respond to it.

12. The finding of voluntary restriction was central to the assessment. It deprived the worker of the right to be assessed in accordance with the range of motion with which he presented. It does not matter whether the Medical Assessor found there was dishonesty or not. The worker was entitled to notice of the potential conclusion and the inconsistencies which supported it, and an opportunity to respond. In our view, the omission to give notice amounted to a denial of procedural fairness, requiring that the Medical Assessment Certificate be set aside, and that the worker be examined by a member of the Appeal Panel.

13. It is unnecessary to consider the remaining submissions in respect of the left upper extremity.

Right upper extremity – trauma scarring

1. At [4], the Medical Assessor took a history of injury to both the right and left arms – emphasis added:

   “On 4 May 2017 Mr Simmons was in the process of unloading a vehicle when some of the load fell off a pallet. It landed, striking him on the left forearm in particular but to a lesser extent the right. He fell but when he got up he noted there was significant bleeding from his left arm and minor lacerations on his right. His fellow workers wrapped his arms in towels and he was taken to Royal Prince Alfred Hospital. X-rays there demonstrated that there was a scapholunate dissociation involving the left wrist with some avulsion fractures of the carpal bones. On the right there were undisplaced fractures of the distal phalanxes of the middle and ring fingers and possibly the little [finger].”

2. This amounts to a history of direct injury to the right upper extremity, consisting of lacerations to the right forearm and fractures of the up to three fingers on the right hand.

3. The Medical Assessor set out his findings on physical examination at [5]. There is detailed reference to scarring on the left upper limb, but no mention of scarring on the right upper limb. There is no mention of an examination of the right upper limb at all.

4. We are not satisfied that the Medical Assessor assessed scarring of the right upper limb. It may be that he interpreted the referral as confining his assessment to the left upper limb. That would be understandable, as it made no reference to scarring of the right upper limb. For the reasons which follow, however, we are of the view that the referral included a request for assessment of scarring of the right upper extremity.

5. The President’s referral was in the following terms:

   “Body part/s referred: left upper extremity (left wrist, left hand, left thumb, left index finger, left ring finger, left little finger), scarring and peripheral nerve damage.”

6. The regions for examination of the left upper extremity were specified in brackets.

7. The word ‘scarring’ necessarily implied assessment of the skin. For the purposes of assessment, the skin is regarded as a single organ and all non-facial scarring is measured together as one overall impairment: Guidelines at [14.5].

8. Nothing in the referral limited the assessment of the skin to the left upper extremity or to any other body part. If it was the parties’ intention to limit the referral in that way, it was not so expressed. Even if the insurer was under that impression, there is no evidence that the worker had any such intention.

9. On its face, the referral requested and authorised an assessment of all scarring resulting from injury, wherever occurring. That included scarring of the right upper limb. This required the Medical Assessor to consider whether there was scarring of the right upper limb resulting from injury and, if so, to include it in his assessment of the skin. We are not satisfied that he did so.

10. The insurer submits that there was no claim for scarring of the right upper extremity. On 8 November 2022, Mr Simmonds by his solicitors made a claim for compensation for a 35% WPI based on the assessment of Dr Gehr dated 19 September 2022. That assessment included 2% WPI for the skin (scarring). It follows that there was a claim for compensation for WPI with respect to the skin system, even though Dr Gehr had confined his assessment to the skin on the left wrist. His doing so did not confine the Medical Assessor to an assessment of the skin on the left wrist. The Medical Assessor’s task, in accordance with the referral, was to assess scarring of all skin as a result of injury. His omission to do so demonstrates error, requiring further assessment by the Appeal Panel.

11. The insurer also submits that injury to the right upper extremity was not pleaded in the Application to Resolve a Dispute. Under the heading “Injury”, the appellant pleaded, “A pallet fell and hit the applicant as described in his statement”. His statement described being taken to hospital where he was diagnosed with “scapholunate disassociation, forearm wound and middle and ring finger distal fractures”. He does specify which forearm was wounded. It is apparent from the history taken by the Medical Assessor that both forearms were injured.

12. This amounted to a pleading of the injurious event itself, without providing an exhaustive description of all body parts involved. One of the objects of the Personal Injury Commission Act 2020 is to enable the Personal Injury Commission (the Commission) “to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”: s 3(c). For this reason, strict pleading is not required. A description of the injurious event, such as that pleaded, was sufficient to initiate the proceedings and to identify for the respondent the event relied on as causing the permanent impairment for which compensation was sought. Mr Simmons did not need to specify damage to the skin of the right forearm in order to give the Commission power to refer it for assessment. The claim itself defined the scope of the proceedings.

13. For the reasons given, that scope included a dispute over the proper assessment of the skin. The skin was referred for assessment by the Medical Assessor. As indicated, that included all scarring resulting from injury, including scarring of the right upper extremity.

Right upper extremity – peripheral nerve damage

1. The same can be said of peripheral nerve damage in the right upper extremity. The nervous system includes the peripheral nervous system. It is assessed in accordance with Chapter 5 of the Guidelines.

2. The President referred for assessment “peripheral nerve damage”. The assessment of the peripheral nervous system was not expressed to be confined to the peripheral nerves in any particular body part. It was the task of the Medical Assessor to determine what parts, if any, of the peripheral nervous system had been damaged as a result of injury, and to assess them.

3. In this case, the Medical Assessor took a history of trauma to the right upper extremity resulting in fractures of some of the fingers. Under the heading, “present symptoms”, he noted the worker complained that “his fingers [on the right hand] are generally stiff and he has difficulty straightening them”. In those circumstances, it was his task to examine the right upper extremity, determine whether there was peripheral nerve damage accounting for these symptoms and resulting from injury and, if so, to assess the peripheral nerve damage within the right upper extremity. We are not satisfied that he did so.

1. That omission may well have resulted from a misunderstanding of the scope of the referral, which was understandable in the absence of reference to the right upper extremity. That demonstrates the necessity for the parties to consider carefully the terms of any draft referral before it is issued, to minimise the potential for misunderstanding its scope.

2. The Appeal Panel referred the worker for examination to Medical Assessor Burns, who is a member of the Appeal Panel. His report follows.

   “Report of Medical Assessor Burns

   1.   The workers medical history, where it differs from previous records.

   Mr Simmons confirmed the medical history of Assessor McGroder contained in his Medical Assessment Certificate dated 5 May 2023.

   2.   Additional history since the original Medical Assessment Certificate was performed.

   Mr Simmons reported that since the initial examination on 2 May 2023 he has had no further treatment concerning his left upper extremity, specifically the left wrist or left hand. He reported that he is not seeing any medical practitioners at the current time and having no formalised physiotherapy. He does though occasionally do hand exercises at home.

   3.   Findings on clinical examination

   It was discussed with Mr Simmons the need to give his best effort in range of movement and to avoid inconsistency. Whilst he did appear to have a degree of pain behaviour, I believe that his range of movement was the best he could do on the day and was consistent.

   Examination of Mr Simmon’s left upper extremity revealed pain and discomfort over the radial side of the left hand mostly in the wrist and at the base of the thumb. He reported no pain or discomfort in the right wrist or right hand or forearm.
   Examination of both wrists was carried out using a goniometer. Active range of movement on both sides was measured on several occasions.

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	60°	20°
Extension	60°	30°
Radial Deviation	20°	5°
Ulnar Deviation	30°	20°

Examination of the left thumb revealed tenderness over the carpometacarpal joint and to a lesser extent over the MCP joint. Active range of movement in both thumbs were measured on several occasions using a goniometer. There was significant pain and discomfort on left thumb movement but no pain on right thumb movement.

Thumb Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  CMC joint ·     Radial abduction ·     Adduction ·     Opposition §  MP joint ·     Flexion ·     Extension §  IP joint ·     Flexion ·     Extension	50° 2 cms 8 cms 60° 0° 70° +10°	40° 6 cms 6 cms 20° 0° 20° 0°

Active range of movement in the left fingers including the index, middle, ring, and little fingers was noted to be slightly stiff but this was associated with thick hands due to his many years of doing manual work. Active range of movement in the right hand in the index, middle, ring, and little fingers was also slightly decreased with no evidence of pain or discomfort. Range of movement of movement in the fingers of both hands was symmetrical.
Grip strength was measured on both sides using a Dynamometer. On the right side grip strength was 26kgs and within the normal range. On the left side it was 12kgs and associated with reports of wrist and thumb pain.

Sensory examination on the right side was reported as normal. On the left side there was a decrease in sensation over the dorsum of the right hand and wrist area in the distribution of the sensory component of the radial nerve. There was a dense loss of feeling, which was consistent with the sensory branch of the nerve being divided at the time of surgery.
With respect to scarring in the left hand, I confirmed the findings of Assessor McGroder. ‘There was a longitudinal surgical scar over the dorsum of the left wrist measuring 13cms and a further longitudinal scar in the anatomical snuff box measuring 2cms. Further scarring over the left wrist measuring 7.5cms and up to 1.5cms in width was seen, which was traumatic rather than surgical’. 
With respect to his right forearm I noted that over the dorsum of the wrist going towards the forearm he did have some pale scarring, which was from previous trauma. The scars themselves revealed a degree of decreased colour compared to the surrounding skin but due to a heavy hair covering of the area they were difficult to see. There was no evidence of attachment of these scars to underlying structures and no areas of either suture marks or contour defect.

On questioning he reported that he was barely conscious of the scars over the dorsum of the right hand and forearm whereas he was quite conscious of the scars over the left forearm and hand. He confirmed that there was no treatment required for any of the scars and I noted that the scars over the right hand would not have increased the 2% whole person impairment that had previously been assessed by Dr McGroder (and not appealed).

I also noted on examination that there was no peripheral nerve injury involving the right upper extremity. Sensation over the right hand was normal as was grip strength.
There was no evidence of Complex Regional Pain Syndrome involving the left upper extremity. Whilst there was pain over the dorsum of the left thumb and wrist there was no evidence of allodynia or hyperalgesia. There was also no evidence of temperature asymmetry and or asymmetric skin colour changes. Additionally there was no evidence of oedema or sweating asymmetry over the left hand. Whilst there was a decrease in range of movement in the left wrist and left thumb this was traumatic in nature and was not associated with severe pain. There was also no evidence of trophic changes in the hair, nail or skin on the left or right sides.

4.   Results of any additional investigations since the original Medical Assessment Certificate

No further investigations have been carried out since he was assessed by Assessor McGroder.
Conclusion:
Mr Simmons’ initial injury included a scapholunate disassociation at the base of the left thumb as well as avulsion fractures of the left triquetrum, hamate and lunate bones. His pain and discomfort in the left wrist and left thumb were consistent with this injury. I believe today that the consistency of his range of movement in the left hand including the left wrist and thumb was present. I note that his range of movement was within the range I would have expected for his injuries and certainly were significantly better than that found initially by Assessor McGroder.

I note that examination of his right hand revealed no evidence of localised tenderness. The range of movement in his right hand was also well preserved, not only in all 4 fingers but also in the thumb. I note that his initial injury in the right hand was fractures of the distal phalanx of the middle and ring fingers and possibly the little finger. These distal fractures have healed and have not led to any decrease in range of movement in the right hand and there is no pain or discomfort.

With respect to scarring he did have abrasions with scarring over the dorsum of the right hand but these are relatively minor compared to the scarring over the left wrist and left hand. There was also no evidence of peripheral nerve injury involving the right upper extremity.

From the attached worksheets for the left upper extremity it can be seen that the decrease in range of movement involving the left thumb and left wrist would be assessed as giving 24% upper extremity impairment.

With respect to the radial nerve injury, which occurred at the time of surgery, it involves the sensory branch only. There is almost complete loss, which from Table 16-15 would give 5% upper extremity impairment. The 5% would be combined with the 24% for range of movement to give 28% upper extremity impairment, which would be converted to 17% whole person impairment.

I note that original assessment of scarring was 2% whole person impairment and I believe that this would not be altered by the additional minor scarring over the dorsum of the right hand. It would remain at 2% whole person impairment. When combined with 17% whole person impairment would give a final result of 19% whole person impairment.”

1. Having regard to his expertise and clinical experience, the Appeal Panel accepts and adopts the clinical findings of Medical Assessor Burns.

2. For the reasons which he gives, the Appeal Panel assesses a 24% upper extremity impairment (UEI) for loss of range of movement in the left thumb and wrist, and 5% UEI for sensory loss in the sensory branch of the left radial nerve. Combined, these yield 28% UEI which converts to 17% WPI (left upper extremity). It assesses 2% for scarring of the left and right upper extremities. Combined, these yield 19% WPI.

3. The Medical Assessment Certificate of Medical Assessor McGroder is revoked and replaced with the attached Medical Assessment Certificate.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1703/23
Applicant:	Wayne Simmons
Respondent:	Janala Pty Limited

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 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 SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)		Sub-total/s % WPI (after any deductions in column 6)
1. Left Upper Extremity (left wrist, left hand, left thumb, left index finger, left ring finger, left little finger)	4 May 2017	Chapter 1 Section 1.23 Section 1.36	Tables16.10; 16.11, and 16.15	17%	Nil		17%
2. Scarring and peripheral nerve damage	4 May 2017	TEMSKI	2%	Nil		2%
Total % WPI (the Combined Table values of all sub-totals)						19%