Stewart v Camden Council
[2021] NSWPICMP 106
•29 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Stewart v Camden Council [2021] NSWPICMP 106 |
| APPELLANT: | Russell Stewart |
| RESPONDENT: | Camden Council |
| APPEAL PANEL: | Member Paul Sweeney Dr Tommasino Mastroianni Dr John Ashwell |
| DATE OF DECISION: | 29 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker against a determination by a Medical Assessor (MA) of 1% WPI for TEMSKI/ scarring; Held- as the MA failed to identify the criteria which led to his determination he had failed to explain the path of his reasoning; Wingfoot Australia Partners Pty Limited v Kocak considered; after re-examination, the panel determined that 1% WPI was the best fit for the worker’s scar in accordance with the criteria and descriptors in Table 14.1; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 February 2021 Russell Stewart (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (formerly an Approved Medical Specialist or AMS). The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 28 January 2021.
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).
RELEVANT FACTUAL BACKGROUND
The appellant was formerly employed as a plant operator by the Camden Council. He suffered an injury to his low back while performing arduous physical work in the course of his employment on 30 July 2006. He came under the care of Dr Michael, a general practitioner of Narellan, who diagnosed an L5/S1 disc lesion. He was treated with physiotherapy, anti-inflammatory medication and pain management. He was referred to a number of medical specialists.
Unfortunately, the appellant was unable to return to his pre-injury duties. He was terminated by the respondent in 2009 and although he has attempted several different jobs since that time has been unable to re-enter the workforce. Dr Michael has expressed the opinion that he is unfit for work which involved lifting, bending, pushing, pulling or twisting. This, of course, involved his pre-injury occupation.
On 23 November 2018, the appellant came to L5/S1 discectomy and decompression of the left L5 and S1 nerve root under Dr Darwish, a neurosurgeon. On 5 March 2019, Dr Darwish reported that the appellant had been undergoing post-operative physiotherapy “with complete resolution of his back and leg pain” and was about to commence a gym program. Subsequently, however, the appellant developed recurrent low back pain radiating to both buttocks which Dr Darwish advised was best treated conservatively and by weight loss.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect to his lumbar spine and consequential surgical scarring. The claim is posited on a report of Dr Bodel, an orthopaedic surgeon, who last saw the appellant on 9 June 2020 and provided a report of that date. Dr Bodel expressed the opinion that the appellant had 17% whole person impairment as a result of the injury on 30 July 2006. This was comprised of 10% WPI under DRE lumbar category III, 2%WPI loading for compromise of his activities of daily living, 3% WPI loading for radiculopathy and a further 2% WPI for a “moderately complex” surgical scarring in accordance with the Temski scale.
Dr Panjratan, an orthopaedic surgeon, saw the appellant at the request of the respondent employer on 25 August 2020 and provided a report of 29 September 2020. By that report,
Dr Panjratan opined that the appellant suffered 12% WPI. This was comprised of 10% WPI in accordance with DRE lumbar category III and a loading of 2% WPI for limitation of the appellant’s activities of daily living. Dr Panjratan made no allowance for radiculopathy or in respect of scarring. He recorded that:“He had a well-healed scar in the lumbar midline crease and had to bend forwards to show me the scar. The scar gets itchy and congested and sensitive when touched.”
The differing assessments provided by Dr Bodel and Dr Panjratan gave rise to a medical dispute as that term is defined by s 319 of the 1998 Act. The Registrar referred the dispute to a MA, Dr Neil Berry, who issued a medical assessment certificate dated 21 January 2021 by which he certified 14% WPI. This was comprised of 10% WPI pursuant to DRE lumbar category III, a loading of 3%WPI for the impact of the injury on the activities of daily living, and 1%WPI in respect of scarring. It is from this assessment that the appellant appeals.
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 necessary for the worker to undergo a further medical examination. The panel concluded that there was prima facie error in the assessment of Dr Berry in that the MA did not explain the “actual part of his reasoning” in concluding that the appellant should be awarded 1% WPI for his scarring. Thus, he had not complied with the relatively lenient requirement to give reasons stated by the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak 88 ALJR 52 (Wingfoot).
NEW EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The parts of the medical assessment certificate which are relevant to the appeal are set out in the body of this decision.
FURTHER MEDICAL EXAMINATION
Dr Tommasino Mastroianni of the appeal panel conducted an examination of the worker on 17 June 2021 and provided a report to the appeal panel. Insofar as it is relevant the report is as follows:
“The workers medical history, where it differs from previous records
The medical history as recorded by the AMS was confirmed by the Claimant.2. Additional history since the original Medical Assessment Certificate was performed
Mr Stewart was re-examined today to assess the scarring.
He was accompanied by his partner.
Mr Stewart was asked what problems or issues he had with the surgical scar. He said that the scar is lumpy, and it hurts. If he touches it, it feels like a needle is sticking into his back and this sensation can last half an hour.
He said his partner dries his back and she described the scar as being dark and she does not like it. Because of this he is conscious of the scar.
He said that despite his size he likes to walk around in shorts and without a shirt, but no longer walks around without his shirt on because of the scar.
He said if he sits upright in a chair with his back against the back of the chair it is uncomfortable, and he now sits forward without resting his back. He said that the train trip to the appointment was uncomfortable because of this.
3. Findings on clinical examination
Examination of the back reveals a 7cm healed surgical scar in the lower lumbar segment. There is very mild keloid scarring. The keloid scarring is segmented. It is a fine scar except for the distal section which is 2mm in width. The scar has patchy discolouration more so in the distal part. On close inspection suture marks were noted. There is no tethering or contour defect. The distal part of the scar is tender to touch where he describes a pins and needles sensation.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the panel. The only error alleged by the appellant concerned the assessment of scarring. The appellant referred to Table 14.1 of the Guidelines which is entitled “Table for the evaluation of minor skin impairment (Temski)”. The appellant set out the five criteria in the Table for the assessment of impairment due to scarring. These were:
(a) Whether the claimant is conscious of the scar;
(b) Whether the scar noticeable [sic] contrasts with the surrounding skin;
(c) Whether the claimant can readily locate the scar;
(d) Whether trophic changes are evidence [sic] to the touch;
(e) Whether suture/staple marks are clearly visible.
The appellant also referred to a number of the indicators of the extent of impairment contained in the Table. He submitted that the MAC made “no reference to what the assessor found in respect of any of these indicators when undertaking his examination of the appellant”. It was silent as to whether the MA observed a contour defect on examination and as to whether the scarring affected the appellant’s activities of daily living.
In these circumstances. It was evident that “scarring was not discussed in any great detail” and the panel could not be satisfied that the “Assessor has complied with the Guidelines when undertaking his assessment”.
The appellant then referred to his statement dated 7 November 2020. He reiterated in his submissions each part of that statement that was relevant to the assessment of scarring. Those paragraphs asserted that the appellant remained conscious of the scar which was unsightly and embarrassing. It was sensitive to touch and made him “very self-conscious”.
The appellant also asserted that the MA’s reference to tenderness of the scar utilised language which did not appear in Table 14.1. Accordingly, it was submitted that the MA had applied wrong criteria. Alternatively:
“the certificate fails to provide any, let alone sufficient reasons to enable the Registrar to be satisfied that it complies with 14.1; that being so, the certificate fails to comply with the requirement of Wingfoot Partners (Aust) Ltd v. Kocak [2013] HCA 43, and accordingly is tainted with demonstrable error.”
The respondent submitted that there was no obligation on the MA to address each of the criteria in Table 14.1 of the Guidelines or to eliminate “symptoms that were not reported to him”. The respondent argued that the MA had considered the criteria and stated that on his assessment the appellant would meet those applicable to an assessment of 1% WPI and would not meet the criteria for 2% WPI. The submission continued:
“As set out in part 14.8 and part 14.9 of the Guidelines the assessment of scarring is a “best fit” assessment. On the basis of the appellant’s own reporting regarding the scar in his statement the respondent submits an assessment of 1% WPI is appropriate”.
The respondent argued that the assessment of medical practitioners who had seen the appellant at earlier times was not determinative of the issue. That was particularly so having regard to the fact that the appellant conceded that the scar was “improving”. It referred to the decision of Davies J in UGL Rail Services Pty Ltd (formerly United Brick Rail Services Pty Ltd) v Attard [2016] NSWSC 911. It continued that:
“The respondent submits the AMS recorded his findings on examination, disclosed his reasoning process and his assessment of impairment was correct and applied the correct criteria, and was in keeping with his findings.”
There was no appealable error.
FINDINGS AND REASONS
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.
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in his application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The MA made no reference to scarring in his findings on physical examination. He records, however, that he was obliged to assess Temski scarring in accordance with Table 14.1. He then states:
“I would consider that the claimant has a tender scar and I would allow a 1% whole person impairment for his scarring.”
The only other reference to scarring in the MAC is contained in the MA’s consideration of other medical opinions before him. He noted that Dr Panjratan had not assessed scarring. He also noted that:
“Dr Bodel has allowed 2% for scarring under the Temski provision. However, given that the scar has improved by the patient’s history and it is still somewhat tender, I would take the view that a 1% whole person impairment was a more appropriate assessment.”
It is true, as the respondent argues, that an MA is not expected to provide comprehensive reasons in determining WPI for scarring in the Temski categories. As it also submitte Chapter 14 requires that the assessor use “clinical judgment” in determining the exact impairment value. Chapter 14 of the Guidelines states that 14.1 is to be used in accordance with the principle of “best fit”.
However, the Guidelines also state :
“The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder to be 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.”
While the guidelines obviously provide a medical assessor with a degree of discretion in assigning WPI to Temski scarring, it remains necessary that the MA address the criteria to such an extent that an appeal panel understands the basis of his assessment. In this case, the medical practitioners who constituted the appeal panel could not discern the basis upon which MA had allocated 1% WPI. He did not refer to any of the criteria set out in Table 14.1.
Following receipt of Dr Mastroianni’s report of his consultation with the appellant worker, the panel reconvened and discussed his findings and opinion as to assessment in respect of the surgical scar. Dr Mastroianni observed that the appellant was conscious of and able to locate the scar, and there was some colour contrast with the surrounding skin as a result of pigmentary changes. However, there were minimal trophic changes, suture marks were visible only on close inspection, the location of the scar was not visible with usual clothing, and even when the appellant wore shorts the scar was not obviously visible. There was no contour defect and no plausible effect on the appellants activities of daily living. The appellant needed no treatment and there was no adherence.
On considering these findings, the panel concluded that the surgical scar clearly fell within the descriptors for 1% WPI in Table 14.1. By contrast the findings did not readily fit with several of the descriptors for 2% WPI. The absence of clearly visible suture marks, obvious trophic changes and contour defects, and the lack of visibility of the scar with the usual clothing militated decidedly against such an allocation.
The panel noted that its assessment of scarring was identical with that reached by the MA on his assessment. In assessing 2% WPI, Dr Bodel referred to a “complex” surgical scar. This may have been an attempt to distinguish the scar from an “uncomplicated” scar. Chapter 14.6 of the Guidelines states that “uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.” But to describe scar as complex does not readily assist in determining whether the descriptors for skin impairment in Table 14.1 are present. The panel concluded that there was nothing in Dr Bodel’s description of the scar which would detract from its certification of 1% WPI.
For these reasons, the appeal panel has determined that the MAC issued on 28 January 2021 should be confirmed.
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