Stewart v AcrWorld Pty Limited
[2023] NSWPICMP 30
•1 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Stewart v AcrWorld Pty Limited [2023] NSWPICMP 30 |
| APPELLANT: | Aaron Stewart |
| RESPONDENT: | AcrWorld Pty Limited |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 1 February 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Claim that Medical Assessor applied incorrect criteria in assessing the left lower extremity; Held – appellant had not familiarised himself adequately with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 June 2022 Aaron Stewart, 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 27 May 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 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 2 May 2022 the delegate of the President referred this matter to an MA for assessment of WPI caused to the lumbar spine and the left lower extremity, and by scarring (TEMSKI) resulting from injury on 4 September 2018.
Mr Stewart was employed as a construction supervisor when, whilst alighting from a small A-frame ladder in the course of his employment on 4 September 2018, he suffered the referred injuries.
It was accepted that there had been a contusion to the left sciatic nerve, and that the sciatic nerve bifurcated near the piriformis. Adhesions had developed around part of the sciatic nerve as a result of the haematoma caused by the fall. Mr Stewart underwent a neurolysis with orthopaedic surgeon, Dr Michael Walsh.
The MA assessed 10% WPI, made up of 7% in respect of the lumbar spine, 2% for the left lower extremity and 1% for scarring.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant sought to be re-examined by a member of the Appeal Panel but in view of the misconceived nature of the appeal, no re-examination was necessary.
The appellant also sought an opportunity to present oral submissions to the Appeal Panel. No submissions were lodged in support of that application and there is no novel point which requires clarification in this appeal. The application is declined.
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.
The MAC
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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 grounds of appeal concerned the manner in which the MA had calculated Mr Stewart’s entitlements pursuant to the relevant guidelines.
The MAC
The MA took a consistent history of Mr Stewart’s injury and treatment. In calculating the WPI caused to the left lower extremity, he said:[1]
[1] Appeal papers page 24.
“Left Lower Extremity. The dysfunction in his left lower leg is associated with three nerves in his left lower leg, identified on Page 551 from Figure 17-08 as the saphenous, sural and superficial peroneal. These nerves have the following maximum lower extremity impairment sensory values:
NERVE
% LEI VALUE FROM TABLE 17-35 ON PAGE 552
Sural
2
Superficial peroneal
5
Saphenous (analogous from Para 1.23)
5
Subtotal
12
From Page 482, Table 16-10 it is assessed that he is in Grade III with 50% of the maximum. This therefore gives 6% LEI. From Page 527, Table 17-03, this converts to 2% WPI.”
SUBMISSIONS
The appellant
Mr Stewart submitted that the MA had fallen into error by using the wrong guideline, namely Table 16-10 of Chapter 16 of AMA 5, in formulating the relevant impairment. The appellant submitted (correctly) that Table 16-10 related to the upper extremity. It followed therefore that the MA had applied incorrect criteria (although the submissions described the ground as a demonstrable error. Nothing turns on that misdescription).
The appellant submitted that the correct criteria was used by the MA in finding a total lower extremity impairment of 12% pursuant to Figure 17-8 of chapter 17 at AMA 5 p 551.
However, Mr Stewart submitted[2]:
“…The combined value chart should have then been used to obtain a Whole person impairment (sic). Using the example of page 551 a Whole Person Impairment of at least 4% should have been found.”
[2] Appeal papers page 9.
Mr Stewart asserted that because of the confusion created by the MA’s reference to
Table 16-10, the MA had not given adequate reasons in coming to his decision.
The respondent
The respondent acknowledged the appellant’s argument, noting that there was no challenge to any of the measurements made by the MA. Whilst acknowledging that Table 16-10 of AMA 5 did refer to the upper extremity, the respondent referred to Chapter 3 of the Guides and particularly Chapter 3.34, the relevant part of which was kindly reproduced. There was accordingly a proper assessment of left lower extremity the respondent submitted.
The appellant’s appeal was without foundation, the respondent said. It did not respond to the submission that the MA had failed to provide adequate reasons.
Discussion
It is quite apparent, with respect, that the MA has applied the correct criteria and given a clear explanation in the reasons we have reproduced above.
The 12% lower extremity impairment is the maximum provided by Table 17-37 of AMA 5 at page 552. (We note that the MA stated in the above extract that the lower extremity (LEI) value was said to be taken from “Table 17-35” on page 552 of AMA 5. The error is clearly typographic, as p 552 contains Table 17-37, whilst Table 17-35 is at p 549, and relates to the rating of knee replacement surgery).
There has been no challenge to the lower extremity assessment, and it is correct that the conversion Table 17-3 provides that a 12% LEI will convert to 5% WPI.
We note the appellant’s reference to “combined values” but assume that he was in fact referring to the conversion table at Table 17-3, and not the combined values chart[3], as there is nothing to combine. We were also curious as to why the submission stated that “at least 4% should have been found.” The table is quite clear that the entitlement is 5%. We did not follow the appellant’s reference to p 551 of AMA 5, as the tables thereon simply identified the sensory and motor nerves of the lower extremity.
[3] At page 604 of AMA 5.
As indicated, the real ground of appeal appears to be that the MA applied incorrect criteria in also applying Table 16-10. The demonstrable error alleged was that the MA had failed to give adequate reasons as to why Table 16-10 was applied.
As indicated by the respondent, Chapter 3.34 of the Guides provides relevantly:[4]
“….. Motor and sensory impairments given in Table 17-37 are for complete loss of function and assessors must still use Table 16-10 and 16-11 in association with Table 17-37.”
[4] Guides page 22.
The provisions of Chapter 3.32-34 of the Guides are headed “Peripheral nerve injuries (lower extremity),” and we note that the MA in fact referred to Chapter 3 in his formal Table 2 Certificate.[5]
[5] Appeal papers page 26.
It can reasonably be expected that an appellant will familiarise him/herself with the relevant guidelines before going to the time and expense involved in an appeal such as this.
The MA’s path of reasoning was clearly set out by his reference to the relevant guidelines.
For these reasons the Appeal Panel has determined that the MAC issued on 27 May 2022 should be confirmed.
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