Storm v Programmed Skilled Workforce

DETERMINATION OF APPEAL PANEL
CITATION:	Storm v Programmed Skilled Workforce [2024] NSWPICMP 6
APPELLANT:	William Storm
RESPONDENT:	Programmed Skilled Workforce Limited
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Michael McGlynn
MEDICAL ASSESSOR:	Henley Harrison
DATE OF DECISION:	9 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal in respect of the impairment assessment for facial disfigurement; assessment on the basis of incorrect criteria alleged; Appeal Panel satisfied as to error; Medical Assessor assessed class 1 but this was held to be incorrect as the appellant qualified for an assessment of facial disfigurement class 2 due to loss of skeletal support for part of the face as a result of loss of upper front teeth and alveolar process; class 2 provides a range of 6 to 10% whole person impairment (WPI) and as the loss is the lower end of that scale the Appeal Panel assessed 6% WPI which is in accordance with the assessment of both the IME qualified on behalf of the appellant Dr Curtis who assessed 6% WPI and that of Professor David, the IME qualified on behalf of the respondent who also assessed 6% WPI for facial disfigurement; in these circumstances the Appeal Panel did not consider it necessary for the worker to be re-examined and the Appeal Panel, consistent with the evidence before it, also assessed class 2 at 6% WPI for facial disfigurement; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 September 2023 Mr William Storm (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Brain Williams, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 August 2023.
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, 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 Procedural Direction PIC7.
The appellant requested a re-examination by a medical assessor member of the Appeal Panel. However, even though the Appeal Panel found error, a re-examination was not considered necessary as there was sufficient material before the Appeal Panel for it to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of the appellant and statement of Amie Storm both dated 5 September 2023
The appellant submits that the evidence is relevant because it goes to the adequacy of the Medical Assessor’s assessment.
The appellant submits that the evidence was not available and could not reasonably have been obtained.
The Appeal Panel determines that the evidence should not be received on the appeal. The Appeal Panel has found error and there is sufficient material before the Appeal Panel for it to make a determination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor 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 Medical Assessor that are relevant to the appeal are set out, where relevant, 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.

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 matter was referred to the Medical Assessor which he records in his MAC as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·        Date of injury: 16.9.2015
·        Body parts/systems referred:
oENT related structures
oRight and Left trigeminal nerve dysfunction
oFacial Disfigurement
·        Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:

Body Part or system

Date of Injury

Chapter, page and paragraph number in NSW workers compensation 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. Sense of Smell

16.9.

2015

Chapter 6, para 6.15

Chapter 11, para 11.4c and para 11.5, table 11.10

4%

0%

4%

2. Air Passages

Chapter 6, table 6.2

3%

0%

3%

3. Sense of Taste

Chapter 6, para 6.15

Chapter 11, para 11.4c, para 11.5

0%

0%

0%

4. Facial Disfigurement

Chapter 6, para 6.4, Table 6.1

1%

0%

1%

5. Trigeminal Nerve

Chapter 5, para 5.13

p331, Table 13-11

8%

0%

8%

Total % WPI (the Combined Table values of all sub-totals)

16%

The worker appealed. The appeal concerns only the assessment of 1% whole person impairment (WPI) for facial disfigurement.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and made demonstrable errors which included the following:
(a)    by failing to consider the report of Professor David the independent medical expert (IME), qualified on behalf of the employer, who assessed facial disfigurement at Class2 (6% WPI);
(b)    by failing to explain why his opinion differed from Dr Curtis, the IME qualified on behalf of the appellant, who assessed Class 2 for facial disfigurement (7% WPI)
(c)   by failing to adequately explain his reasoning why he did not find Class 2 for facial disfigurement, that is why it he did not classify the facial disfigurement as a loss of supporting structure in the face, and
(d)    by failing to assess Class 2 in accordance with the correct criteria in the Guides, that is a loss of the supporting structure of the face (Table 6.1 of the Guidelines).
The respondent employer, Programmed Skilled Workforce Limited (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make a demonstrable error and the MAC should be confirmed.
The Appeal Panel was satisfied that error had been made by the Medical Assessor because he did not make an assessment on the basis of correct criteria.
In respect of facial disfigurement the Medical Assessor recorded a history as follows:
“Trigeminal Nerve (history and examination)/Facial Disfigurement
The right side of his hard palate and right upper gum are numb, as well as an anterior area of the left upper gum.
The right side of his nose and medial aspect of right cheek and most of the upper lip on both right and left sides are numb. The right upper and lower buccal mucosa are numb, as well as part of the medial aspect of the right lower jaw where a graft was harvested.
He has pain in the right upper jaw twice a week varying from 5-60 minutes. He said it is like an infected tooth.
It is painful when eating hard food and is treated with Panadol and Endone.
He has a horizontal scar on his upper lip which is 1.5cm in length and well healed.
The nasal dorsum is midline, lingual sensation is normal bilaterally.”
The Medical Assessor assessed 1% or Class 1 for facial disfigurement. Class 1 allows a range of 0% to 5% WPI. The appellant submitted it should have been Class 2 which allows a range of 6% to 10% WPI.
The Medical Assessor explained his assessment of 1% for facial disfigurement as follows:
“Facial Disfigurement
Using the NSW workers compensation guidelines for the evaluation of permanent impairment, 4th edition, 1st April 2016, reissued 1.3.21, Chapter 6, para 6.4, Table 6.1 Class 3 allows 11-15%WPI where there is absence of normal anatomic part or area of the face. This criteria is not met.
Class 2 allows 6-10%WPI where there is loss of supporting structure of part of the face, with or without cutaneous disorder. This criteria is not met.
Class 1 allows 0-5%WPI for facial abnormality limited to disorder of cutaneous structures, such as visible simple scars (not hypertrophic or atrophic) or abnormal pigmentation or mild, unilateral facial paralysis affecting most branches, or nasal distortion that affects physical appearance, or partial loss or deformity of the outer ear. This criteria is met. He has a 1.5cm horizontal well healed scar on his upper lip. I have assessed it as 1%WPI.”
The Medical Assessor must form an independent assessment on the date of examination. He is required however to have due regard to the other evidence before him and provide a brief explanation of why his opinion differs. The Medical Assessor made the following comments:
“Statement by Mr W Storm 28.10.2022
Comment
I have read and considered this statement.
Report by Dr N Curtis 28.1.21
Comment
I have read and considered this report.
Report by Dr R Payten 27.8.21
Comment
I have read and considered this report. I prefer my history, examination and assessment.
Dr Payten assessed 3% due to nasal airway obstruction, 3% for partial loss of olfaction and 10% for trigeminal nerve sensation on the right side and 5% on the left side.
Dr Payten states ‘He has no abnormality of taste’.
Report by Dr T Raj 8.11.21
Comment
I have read and considered this report. I prefer my history, examination and assessment.
Dr Raj states ‘The left trigeminal nerve was normal’.
Dr Raj states ‘Taste sensation was clinically normal’.
Dr Raj states ‘He had partial anosmia’.
Dr Raj states ‘... there was no obvious clinical obstruction ….’.
Dr Raj states ‘Only the right trigeminal function has been affected by the injury, and only this impairment is assessed’. Dr Raj assessed the impairment at 3%.”
The appellant submitted that Dr Curtis, the IME qualified on behalf of the appellant had assessed 7% WPI for facial disfigurement at Class 2. The appellant is incorrect in the submission that Dr Curtis assessed 7% WPI for facial disfigurement because Dr Curtis in his report dated 28 January 2021 made the following assessments:
· facial Disfigurement Class 2 (6%-10%WPI) with loss of bony structure of anterior maxilla causing 6% WPI, and
· impaired mastication causing 7% WPI.
The appellant points out that Professor David, the IME qualified on behalf of the employer had also assessed Class 2 for facial disfigurement at 6% WPI. The appellant pointed out that the Medical Assessor does not refer to Professor David’s report at all. The Appeal Panel notes that Professor David in his report dated 7 December 2021 made the following assessments:
· facial Disfigurement Class 2 loss of bony structure of anterior maxilla causing 6% WPI, and
· impaired mastication causing 7% WPI.
In contrast, the Medical Assessor assigned 1% WPI to facial disfigurement stating that there is Class 1 facial disfigurement (0–5% WPI) facial abnormality, namely a 1.5cm horizontal well-heeled scar on his upper lip. However, his examination makes no mention of loss of skeletal support for part of the face. Whilst the Medical Assessor acknowledges that he has seen the report of Dr Curtis, he makes no comment about the contents of that report and why his assessment for facial disfigurement differs. He makes no mention at all of the report of Professor David. This is particularly relevant given that both IMEs qualified on behalf of each party have made the same assessment of Class 2 for facial disfigurement at 6% WPI. Whilst it is the case that the Medical Assessor has to come to his own independent assessment on the day of examination, that assessment must be made on the basis of correct criteria.
Table 6.1 of the Guidelines provides the correct criteria to be used in the assessment of facial disfigurement and provides as follows:
Table 6.1: Criteria for rating permanent impairment due to facial disorders and/or disfigurement

Class 1

0–5% impairment of the whole person

Class 2

6–10% impairment of the whole person

Class 3

11–15% impairment of the whole person

Class 4

16–50% impairment of the whole person

Facial abnormality limited to disorder of cutaneous structures, such as visible simple scars (not hypertrophic or atrophic) or abnormal pigmentation (refer to AMA5 Chapter 8 for skin disorders)

or

mild, unilateral, facial paralysis affecting most branches

or

nasal distortion that affects physical appearance

or

partial loss or deformity of the outer ear

Facial abnormality involves loss of supporting structure of part of face, with or without cutaneous disorder (eg depressed cheek, nasal, or frontal bones)

or

near complete loss of definition of the outer ear

Facial abnormality involves absence of normal anatomic part or area of face, such

as loss of eye or loss of part of nose, with resulting cosmetic deformity,

combine with any functional loss, eg vision (AMA4 Chapter 8)

or

severe unilateral facial paralysis affecting most branches

or

mild, bilateral, facial paralysis affecting most branches

Massive or total distortion of normal facial anatomy with disfigurement so severe that it precludes social acceptance

or

severe, bilateral, facial paralysis affecting most branches

or

loss of a major portion of or entire nose

Class 2 applies when there is loss of the supporting structure of part of the face with or without cutaneous disorder (e.g. depressed cheek, nasal or frontal bones).
The appellant has had teeth removed and there is erosion of the bone around the partial denture. This means the appellant has loss of bony structure in the anterior maxillary region and associated dentition. That is, there facial abnormality with loss of supporting structure of part of the face. This qualifies for an assessment of Facial Disfigurement Class 2 due to loss of skeletal support for part of the face as a result of loss of upper front teeth and alveolar process. Class 2 provides a range of 6 to 10% WPI and as the loss is the lower end of that scale, the Appeal Panel assesses 6% WPI which is in accordance with the assessment of both the IME qualified on behalf of the appellant Dr Curtis who assessed 6% WPI (when his report is read correctly) and that of Professor David, the IME qualified on behalf of the respondent who also assessed 6% WPI for facial disfigurement. In these circumstances the Appeal Panel did not consider it necessary for the worker to be re-examined and the Appeal Panel, consistent with the evidence before it, also assesses Class 2 at 6% WPI for facial disfigurement.
This means that the combined values of the assessments equates to 19% WPI and the Appeal Panel will accordingly revoke the MAC and issue this new assessment of 19% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 August 2023 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:	W2381/23
Applicant:	William Storm
Respondent:	Programmed Skilled Workforce 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 Brian Williams 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 NSW workers compensation 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. Sense of Smell	16.9. 2015	Chapter 6, para 6.15	Chapter 11, para 11.4c and para 11.5, table 11.10	4%	0%	4%
2. Air Passages	Chapter 6, table 6.2	3%	0%	3%
3. Sense of Taste	Chapter 6, para 6.15	Chapter 11, para 11.4c, para 11.5	0%	0%	0%
4. Facial Disfigurement	Chapter 6, para 6.4, Table 6.1	6%	0%	6%
5. Trigeminal Nerve	Chapter 5, para 5.13	p331, Table 13-11	8%	0%	8%
Total % WPI (the Combined Table values of all sub-totals)					19%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002

[2024] NSWPICMP 6

9 January 2024