Smith v Swift Electroplaters NSW Pty Limited
[2023] NSWPICMP 47
•16 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Smith v Swift Electroplaters NSW Pty Limited [2023] NSWPICMP 47 |
| APPELLANT: | Shirley Smith |
| RESPONDENT: | Swift Electroplaters NSW Pty Limited |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 16 February 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in his assessment regarding scarring; Held – the Panel agreed that the MA should have used TEMSKI in his assessment; evidence supported a finding of 1% WPI for scarring; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 November 2022 Shirley Smith (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 31 October 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
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 MA erred in his assessment of scarring.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the right knee-surgical scarring resulting from an injury on 20 June 2018.
After setting out details of the injury and treatment, the MA noted symptoms including “She said that she is conscious of the scar as people ask about the scar.”
In his findings on examination, the MA said:
“Examination of the right leg reveals a healed surgical scar consistent with the hemi knee replacement. The scar measures 9cm in length x 1mm in width. It is a very fine pale scar with no suture marks, no trophic changes, no tethering and no contour defect. Two arthroscopic wounds are noted, one on the medial and one on the lateral side of the knee. They are fine scars with no pigmentation and no keloid formation or trophic changes.”
In setting out his reasons for assessment, the MA said:
“The scar as described under ‘Examination’ is an uncomplicated surgical scar. I asses 0% whole person impairment. PIC Guidelines, 4th Edition: (1) Page 73, Para 14.6.”
In commenting on the other medical opinions, the MA said:
“I note the report of Dr Richard Powell dated 14 June 2022 and Dr E Gehr dated 19 January 2022.
Dr Gehr assesses 2% WPI for scarring. I have assessed 0% impairment for scarring.”
The appellant makes the following submissions:
(a) the MA was required to assess scarring pursuant to Table 14.1 of the Guidelines.
(b) The assessment of scarring is to occur by using Chapter 14 of the Guidelines. The effect of chapter 14 of the Guidelines is that minor skin impairments are to be assessed using Table 14.1 of the Guidelines, Table 14.1 is known as TEMSKI.
(c) Paragraph 14.8 of the Guidelines states:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.”
(d) The MA has not used TEMSKI to assess the worker’s scarring, the MA has purported to use paragraph 14.6 of the Guidelines, which states: “A scar may be present and rated as 0% WPI.”
(e) Paragraph 14.6 has a subsequent note that reads “Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
(f) The effect of TEMSKI and paragraph 14.6 is that a worker can have a scar and it be rated 0% WPI, however to get to that point the MA must apply table 14.1. In the prese [sic] MAC, the MA has not applied Table 14.1 and has therefore used incorrect criteria to assess scarring.
(g) The worker is conscious of the scar and is able to easily locate the scar whereby she reports at paragraph 8 of her statement "I have been left with significant scarring on my right knee" and that it "is located on the outside of [her] right knee". We note the MA referred to this on page 2 of the MAC whereby he states: "the claimant was asked about the scars and she said that she is conscious of the scar as people ask about the scar". This meets the criteria of at least 1% WPI in Table 14.1 of the Guidelines.
(h) It is submitted that the scar is easily located by the worker but also other individuals, which is confirmed by paragraph 11 of the worker's statement whereby she explains a family member commented on her right knee scar.
(i) The location of the scar is usually visible with any summery style clothing, which meets the criteria of at least 2% WPI in Table 14.1 of the Guidelines.
We agree with the thrust of the appellant’s submissions for reasons that follow.
The appellant is quite correct in submitting that the MA erred in failing to use the TEMSKI scale to assess the scar.
Ms Smith gave a detailed statement regarding her scar and how she felt about it, summarised in the submissions above. She clearly stated that it was visible, that other people had commented upon it, which caused her embarrassment, and that she was conscious of it particularly when wearing summer clothes.
Included in her submissions were two colour photographs of the scar.
It is about 9cm long, a little pale but still quite visible. It also shows some contouring at the proximal end.
In our view, considering the requirements of TEMSKI, it rates as 1%
We note that Dr Gehr assessed 2% for scarring. He simply said: “Anteromedial vertical scar measuring 9 cm, pale, arthroscopic scars medially and laterally. WPI equals 2%.”
He gave no reasons for his assessment as required by the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W4850/22 |
Applicant: | Shirley Smith |
Respondent: | Swift Electroplaters NSW Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Mastroianni 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.Scarring | 20/06/18 | Chapter 14; TEMSKI | 1% | n/a | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 1% | |||||
0