State of New South Wales (Royal Prince Alfred Hospital) v Smythe
[2022] NSWPICMP 448
•9 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Royal Prince Alfred Hospital) v Smythe [2022] NSWPICMP 448 |
| APPELLANT: | State of New South Wales (Royal Prince Alfred Hospital) |
| RESPONDENT: | Andrew Smythe |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 9 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Matter referred to Medical Assessor (MA) for assessment of left upper extremity; MA assessed left wrist, left elbow, nerve dysfunction and scarring and also assessed left shoulder; left shoulder not part of the medical dispute referred for assessment or a body part within the scope of the “medical dispute” crystallised between the parties; Skates v Hills Industries Ltd considered and applied; Held – MA erred in assessing left shoulder; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 December 2021 the State of New South Wales (Royal Prince Alfred Hospital) (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 (MA), who issued a Medical Assessment Certificate (MAC) on 8 August 2022.
The respondent to the appeal is Andrew Smythe (Mr Smythe).
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.
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 reissued on 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 Smythe sustained an injury to his left upper extremity on 22 January 2019 in the course of his employment as a security officer at Royal Prince Alfred Hospital.
The matter was referred to the MA, Tim Anderson, on 4 July 2022 for assessment of person impairment of the left upper extremity and scarring (TEMSKI) as a result of the injury on
22 January 2019.The MA examined Mr Smythe on 21 July 2022 and assessed 24% whole person impairment (WPI) for the injury of 22 January 2019.
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.
The appellant did not request that Mr Smythe be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Smythe 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 MA 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 MA 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 have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) The MAC contained demonstrable error on the basis that it included an assessment of the left shoulder as part of the “left upper extremity”. This was not available to the MA as the left shoulder:
(i)was not a part of the medical dispute crystallised between the parties, and
(ii)was beyond the scope of the “Referral for Assessment of Permanent Impairment”.
(b) The appellant does not appeal the assessment to the left wrist, left elbow, nerve dysfunction (neurological) and scarring.
(c) The MAC contained a demonstrable error because the MA assessed the left shoulder. However, the left shoulder was not a part of the medical dispute referred to the MA for assessment of permanent impairment.
(d) Part 10(b) of the MAC contained assessments for impairment to Mr Smythe’s left shoulder. The left shoulder was not a body part within the scope of the “medical dispute” crystallised between the parties.
(e) In relation to Mr Smythe’s claim for permanent impairment to the “left upper extremity” and scarring:
(i)On 16 December 2021, Mr Smythe’s legal representatives made a claim for 26% WPI. The claim was supported by the medicolegal reports of Dr Min Fee Lai, orthopaedic surgeon, dated
24 November 2020 and 30 November 2021 (Application to Resolve a Dispute (ARD) Page 16).(ii)In her report dated 24 November 2020, Dr Lai:
(1) diagnosed the worker with fibrillation of the left wrist TFCC, left mid carpal instability, and partial injury to the left ulnar nerve below mid forearm level (ARD Page 23); and
(2) assessed permanent impairment to the left arm on the basis of abnormal range of motion of the left wrist and the ulnar nerve, as well as the mid-carpal tunnel fusion (ARD Pages 25 to 26). The left shoulder was not assessed.
(iii) In her report dated 30 November 2021, Dr Lai reassessed permanent impairment to the left upper extremity on the basis of abnormal range of motion of the left wrist and left elbow, as well as the left ulnar nerve and midcarpal tunnel fusion (ARD Page 33). The left shoulder was not assessed.
(iv)In response to the claim for permanent impairment the appellant relied on the report of Dr Robin Diebold, orthopaedic surgeon dated 14 February 2022 (Reply Page 6).
(v)In the report dated 14 February 2022, Dr Diebold:
(1)diagnosed the worker with left-mid carpal instability and a left ulnar nerve injury secondary to plaster use following surgery (Reply Page 28); and
(2) assessed permanent impairment to the left upper extremity on the basis of range of motion in the left wrist and left elbow, as well as the ulnar nerve injury (Reply Pages 31 to 32). The left shoulder was not assessed.
(vi) On 7 March 2022, the appellant made an offer to resolve the claim on the basis of the ‘left upper extremity (wrist and elbow) and scarring’ (Reply Page 6).
(f) The left shoulder was not a body part for which a claim for injury was made; or one which a claim for impairment was supported under s 66 of the Workers Compensation Act1987 (NSW), or s 281 and s 282 of the 1998 Act. In this regard, the claim for impairment made by Mr Smythe was based on the report of Dr Lai, who assessed the “left upper extremity” as comprising of impairment to the left elbow, left wrist and nerve dysfunction only.
(g) In applying Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates), the “medical dispute” crystallised between the appellant and Mr Smythe was the degree of permanent impairment to the left wrist, left elbow, and ulnar nerve injury – the totality of which was the “left upper extremity” – and scarring. It was these body regions which were assessed by Dr Lai and Dr Diebold; and were relied on by the parties in making and responding to the claim for permanent impairment for the “left upper extremity”. It did not include the left shoulder.
(h) Noting the above, the “left upper extremity” referred to the MA for assessment of permanent impairment comprised the left wrist, left elbow, and the ulnar nerve injury / dysfunction only.
(i) Accordingly, the MA’s assessment of impairment to the left shoulder was a demonstrable error and was prejudicial. Based on the above submissions, particularly, the application of Skates, the left shoulder cannot form part of the ambit of body parts to be assessed by the MA; and the MA went beyond the terms of the referral when assessing the left shoulder.
(j) The MA erred in assessing the left shoulder and the MAC should be revoked. The assessment of the “left upper extremity” should be limited to the left wrist, left elbow and nerve dysfunction. A new MAC should be issued by the Medical Appeal Panel assessing 19% WPI for the physical injury suffered by Mr Smythe on 22 January 2019, as follows:
(i)Left Upper Extremity – 18% WPI:
(1) left wrist – 21% Upper Extremity Impairment (UEI);
(2) left elbow – 7% UEI, and
(3) nerve dysfunction – 4% UEI.
(ii)Scarring – 1% WPI.
(iii)Total – 19% WPI.
The respondent’s submissions include the following:
(a) Mr Smythe made a claim for lump sum compensation by letter dated
7 March 2022 for “left upper extremity (wrist and elbow) and scarring”. Mr Smythe relied on reports of Dr Min Fee Lai, orthopaedic surgeon, dated
24 November 2020 and 30 November 2021. Dr Lai did not assess the left shoulder.(b) At no stage had Mr Smythe made a claim for injury in respect of the left shoulder. There was nothing in the clinical records to suggest injury to the left shoulder arising from the subject work injury. The left shoulder had not been subject to any radiological investigations.
(c) In Skates Leeming JA held at [46]: “The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application” Leeming JA continued at [49]: “…it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment”.
(d) Mr Smythe concedes the dispute between the parties (and as set out in the relevant correspondence) related to the left wrist, left elbow and scarring only. For the MA to assess WPI of a body part not claimed and at his own directive was for the MA to act ultra vires. The MA has erred in assessing the left shoulder.
(e) Mr Smythe consents to the Medical Appeal Panel issuing a new MAC for 19% WPI arising from injuries to the left wrist, left elbow, nerve dysfunction and scarring as set out at paragraph 19 of the appellant’s submissions dated
5 September 2022.
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 Medical Assessment Certificate
Under “History relating to the injury”, the MA wrote:
“Mr Smythe related that on 22/01/19 he was called to a scene in the hospital where a female patient had literally gone out of control. He described that she was schizophrenic and was “high on ice”. She had a knife. He felt that it was very necessary to disarm this person and proceeded to do so. In the ensuing confrontation, the knife was removed from her, but he ended up in a difficult position with this person falling on top of him. This resulted in a fracture to his left wrist. He was very concerned about this because he is left sided dominant.
The violent person was suitably retained. He came under the care of Specialist Hand
Surgeon, Dr Chris Smithers. An arthroscopic procedure was conducted in mid-April 2019 for general debridement.
The wrist continued to be dysfunctional, and he had very little power and movement of it. It was identified that there was instability of some of the mid-carpal bones. This was eventually managed by a mid-carpal fusion towards the latter part of 2020. This reduced the pain, although it also reduced the movement of the left wrist complex.
He continued to have dysfunction of the hand with irritating tingling radiating down the little finger and part of the ring finger. It was identified that there was compression of the left ulnar nerve at the cubital tunnel. This was managed by a third surgical procedure with transposition. Again, this gave him limited improvement.
He has been unable to continue with his work in Security and has been transferred to
Administration.
His further clinical management has remained conservative.
This event has apparently had a significant mental effect on him, and he continues to have mental health support.”
Under “summary of injuries and diagnoses” on page 5 of the MAC, the MA wrote:
“Mr Smythe sustained a fracture to part of his left wrist complex in unusual and violent
circumstances in January 2019. The major injury appears to have been to the mid-carpal bones with associated instability. He has had three surgical procedures which have given him limited improvement, although at the expense of reduced flexibility of the left wrist complex. His final surgical procedure was transposition of the left ulnar nerve, which also gave him limited improvement. At this assessment he continues to have significant dysfunction of the left forequarter. An issue which does not seem to have been appreciated beforehand is the fact that his left shoulder also has significant restriction of movement in comparison with the right. There is no history of any other condition affecting his left forequarter and therefore, this is assessed as being part and parcel of the overall injury to his left forequarter associated with the event of January 2019.”
Under “Reasons for Assessment” the MA assessed 23% WPI of the left upper extremity and 1% WPI for scarring. The MA assessed 11% left UEI in respect of the shoulder, 7% left UEI in respect of the elbow, 21% UEI in respect of the wrist and 4% UEI for nerve dysfunction of the ulnar nerve above the mid-forearm. The combined left upper extremity impairments produced a combined value of 38% UEI which converted to 23% WPI. The MA assessed 1% WPI for scarring.
Under 10c. the MA wrote:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
My assessment is quite similar to those of Specialist Plastic Surgeon, Dr Min Fee Lai and also to Specialist Orthopaedic Surgeon, Dr Robin Diebold in their reports of 30/11/21 and 14/02/22 respectively. There are some relatively minor differences in the range of movement. We all agree on 1/% for the scarring.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Discussion
Both parties referred to the decision in Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates). Leeming JA noted the following at [44]:
“The starting point is a “medical dispute”. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)…The term is defined by reference to the existence of a “dispute between a claimant and the person on whom a claim is made” about any of seven related subject matters including the degree of permanent impairment as a result of an injury…It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”
And at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a “medical dispute” because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
And at [49]:
“…it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment.”
The appellant submitted that the MAC contained a demonstrable error on the basis that it included an assessment of the left shoulder as part of the “left upper extremity”. The appellant argued that an assessment of the left shoulder was not available to the MA as it was not a part of the medical dispute crystallised between the parties and was beyond the scope of the “Referral for Assessment of Permanent Impairment”.
The Appeal Panel noted that Mr Smythe properly conceded that Dr Lai did not assess the left shoulder in his reports of 24 November 2020 and 30 November 2021 and that at no stage had a claim been made for injury in respect of the left shoulder. Mr Smythe stated that there was nothing in the clinical records to suggest injury to the left shoulder arising from the subject work injury and the left shoulder had not been subject to any radiological investigations.
In his submissions, Mr Smythe conceded that the dispute between the parties (and as set out in the relevant correspondence) related to the left wrist, left elbow and scarring only and that the MA has erred in assessing the left shoulder.
The Appeal Panel agreed with the parties that the MA clearly did not have jurisdiction to find that Mr Smythe had sustained an injury to his left shoulder in the incident on
22 January 2019 and that the MA erred in making that finding and the assessment of the left shoulder.The Appeal Panel considered that in addition to the jurisdictional error it was unfair for the MA to treat the restriction of the range of movement in the left shoulder as resulting from the incident on 22 January 2019 without putting this issue to the parties. This resulted in a lack of procedural fairness as neither party considered the issue and arguments or had a chance to address them.
Johnson J in Vitaz v Westform (NSW) Pty Limited and Ors [20010] NSWSC 667 considered whether the requirement for procedural fairness must be observed by an approved medical specialist conducting an assessment of permanent impairment under the 1998 Act. Johnson J was satisfied that an approved medical specialist performing an assessment of permanent impairment is, at least as a starting point, under some obligation of procedural fairness.
Mr Smythe consented to the Medical Appeal Panel issuing a new MAC for 19% WPI arising from injuries to the left wrist, left elbow, nerve dysfunction and scarring as set out at paragraph 19 of the appellant’s submissions dated 5 September 2022. The Appeal Panel accepted this submission.
The Appeal Panel, therefore, assessed 21% UEI for the left wrist, 7% UEI for the left elbow and 4% UEI for nerve dysfunction, which were combined to total 30% UEI. 30% UEI was converted to 18% WPI, which was then combined with 1% WPI for scarring. The total combined WPI was 19%.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 August 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: | W3574/22 |
Applicant: | Andrew Smythe |
Respondent: | State of New South Wales (Royal Prince Alfred Hospital) |
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 Dr Roger Pillemer 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.Left upper extremity | 22/1/19 | Chapter 2 Page 10 | P 472 F16-34 P 474F16-37 P467 F16-28 P469 F16-31 P492 T16-15 P 482 T 16-10 P 439 T 16-03 | 18% | Nil | 18% |
| 2.Scarring | 22/1/19 | P74 T14.1 | 1% | Nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
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