Thomson v Bevchain Pty Ltd
[2021] NSWPICMP 82
•1 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Thomson v Bevchain Pty Ltd [2021] NSWPICMP 82 |
| APPELLANT: | Geoffrey Thomson |
| RESPONDENT: | Bevchain Pty Limited |
| APPEAL PANEL: | Member Catherine McDonald Dr David Crocker Dr J Brian Stephenson |
| DATE OF DECISION: | 1 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Application of TEMSKI; no dispute that worker suffered 10% WPI as a result of an injury to his shoulder and subsequent surgery; he argued that the AMS should also have allowed 1% under TEMSKI in respect of scars from arthroscopy ports; Held- no error in assessment of 0% for scarring; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 March 2021 Geoffrey Thomson lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 16 February 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 was 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 grounds 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
Mr Thomson was employed by Bevchain Pty Ltd (Bevchain) as a truck driver. He suffered an injury to his left shoulder on 7 September 2018 when he pulled down the roller door on his truck.
On 19 February 2019, Dr T Yeoh undertook arthroscopic rotator cuff repair, biceps tenodesis and subacromial decompression.
There is no dispute that Mr Thomson suffers 10% whole person impairment as a result of the injury, that assessment having been made by Dr R Pillemer (qualified by his solicitors),
Dr M Hyde Page (qualified for Bevchain), and the AMS.Mr Thomson argues that the AMS erred in not making an assessment of 1% under the Table for the Evaluation of Minor Skin Impairment (TEMSKI). If the AMS had made that assessment, Mr Thomson’s WPI would have been 11% and he would have been entitled to permanent impairment compensation.
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 the assessment made by the AMS does not disclose an error.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the AMS 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.
In submissions prepared by his solicitor, Mr Bannister, Mr Thomson submitted, that the AMS was dismissive in his attitude to his scarring when he said that the scars were uncomplicated scars from a common procedure and did not warrant an assessment of WPI. He submitted that the AMS was required to address each of the criteria in the TEMSKI and that, if he did so, he would have assessed 1% as A/Prof A Meares did.
In reply and in submissions prepared by its solicitor, Mr Michael, Bevchain submitted that the AMS had appropriately assessed the scarring, noting that the scars were barely visible on images which appeared to have been significantly enlarged.
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[1] 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.
[1] [2006] NSWCA 284.
The MAC
Because there is no dispute about the assessment of Mr Thomson’s left upper extremity, it is appropriate to set out only those parts of the MAC which deal with scarring. The AMS did not obtain a history of any symptoms resulting from the scars. He said:
“Scarring. The small arthroscopic scars are very indistinct, quite difficult to identify and are untethered. They have no effect on his activities of daily living and are usually well covered. Mr Thomson just happens to have a very fair (Nordic) skin and prefers to remain covered as much as possible against solar radiation. Therefore, according to the criteria in the SIRA Guidelines Page 74, Table 14.01, it is assessed that he has 0% whole person impairment for the surgical scarring.”
With respect to A/Prof Meares’ report, the AMS said:
“Specialist Plastic Surgeon, Dr Allan Meares in his report of 19/08/20 advises 1% whole person impairment for the scarring. In his report, Prof Meares describes very limited features associated with the arthroscopic scarring. With the greatest of respect, bearing in mind that these are uncomplicated standard surgical scars for a very common procedure, I am not persuaded that they actually do justify a whole person impairment greater than 0%.”
The AMS noted that Dr Hyde Page assessed 0% for scarring.
The Guidelines
The Guidelines provide in paragraph 14.6:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”Paragraph 14.8 provides:
“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.”
The TEMSKI sets out five criteria to be considered. The first is a description of the scar and includes whether or not a worker is conscious of it, the colour match with the surrounding skin, whether the worker can locate the scar, whether there are trophic changes and whether staple marks or sutures are visible. The other criteria are the location – including whether or not the scar is clearly visible with usual clothing, whether there is a contour deficit, whether there is an impact on the activities of daily living, whether treatment is required and whether there is adherence to the underlying structures.
The range of possible assessments begins with 0%, consistent with paragraph 14.6.
Evidence
Mr Thomson did not say anything about scarring when describing his current condition in his statement. There is nothing in the records of his general practitioner nor those of Dr Yeoh to show that the scar has required more than normal post-operative care. On 25 March 2019 Dr Parmar noted “good healing”. The physiotherapy reports in April and July 2019 do not mention the scars.
In his report dated 19 August 2020, A/Prof Meares said:
“There are a number of port scars around his left shoulder from his endoscopic surgery on 19 February 2019.
On the lateral aspect of his shoulder is a vertical small port scar that is pale with a colour contrast to surrounding skin and the scar measures 5 mm x 1 mm.
There are four other pale scars on the anterior aspect of his left shoulder fairly close to each other. They are pinker than the surrounding pinkish pale skin and each of these measures 5 mm x 1 mm. These scars can just be seen from a distance of two metres.”
Dr Hyde Page said in his report dated 7 October 2020:
“Dr Alan Meares, Plastic Surgeon, has done a report in August 2020. He gives a level on 1 % WPI for multiple small surgical scars around the left shoulder. This is based on TEMSKI scale. When I assessed Mr Thomson today, he said that he was not conscious of the scars and he could not really locate them. Because of his skin, which does not suntan easily and he has a lot of blemishes and freckles, the very small arthroscopic scars are really not visible and certainly difficult to find. In view of all this, using TEMSKI scale I have concluded that he has 0% WPI from scarring.”
There are several photographs of the scars in the file and most of them have been enlarged. Whilst the quality of the photographs is not high, they are sufficient to show that the scars are as described by the AMS.
Consideration
The submissions made on behalf of Mr Thomson are merely to the effect that the AMS should have made a higher assessment.
The AMS was required to exercise his clinical judgement in making an assessment on the day that Mr Thomson presented for examination. The task of an Appeal Panel is to consider whether there was an error in that assessment and the application of the Guidelines.
The AMS considered the provisions of Chapter 14 and the TEMSKI. He made his assessment by reference to the Table and to paragraph 14.6. He explained why his assessment was different to that of A/Prof Meares. Based on the description by the AMS, assessment of 0% was the “best fit” as required by the TEMSKI.
There was no demonstrable error in the assessment of scarring made by the AMS.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 February 2021 should be confirmed.
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