Tradieh v LM Hayter & Sons Pty Ltd
[2024] NSWPICMP 710
•10 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tradieh v LM Hayter & Sons Pty Ltd [2024] NSWPICMP 710 |
| APPELLANT: | Sarah Tradieh |
| RESPONDENT: | LM Hayter & Sons Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 10 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Assessment of the lower extremities and scarring; worker appealed alleging error in failing to explain why differed from the independent expert qualified on behalf of the appellant; Held – Medical Appeal Panel found reasons adequate and no error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 July 2024 Ms Sarah Tradieh (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 June 2024.
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.
Rule 128 of 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 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 that she be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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 by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 3.8.18
· Body parts/systems referred: Left Lower Extremity (Ankle)
Right Lower Extremity (Ankle & Hip)
Consequential Scarring
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) |
| Right Lower Extremity | 3.8.18 | Chapter 3, pp 13-23 | Chapter 17, 17.2f, Tables 17-9, 17-11 & 17-12, pp 533-538; Table 17-3, pg 527; | 11% | ¾ | 11% |
| Left Lower Extremity | 3.8.18 | Chapter 3, pp 13-23 | Chapter 17, 17.2f, Tables 17-11 & 17-12 pp 533-538; Table 17-3, pg 527; 17.2l, Table 17-37, pp 552; Chapter 16, Table 16-10, pg 482 | 2% | ¾ | 2% |
| Scarring (TEMSKI) | 3.8.18 | Chapter 14, Table 14.1, pp 73-76 | Chapter 8, Table 8-2, pp 178-189 | 1% | ¾ | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
The worker appealed.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:
(a) in failing to explain why he differed from Dr Gehr the independent medical examiner (IME) who was qualified to provide an opinion on behalf of the appellant, and
(b) in assessing 1% whole person impairment (WPI) for scarring when he should have assessed 2% WPI.
In summary, the respondent LM Hayter & Sons Pty Ltd submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
The Medical Assessor recorded the following history:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Tradieh stated that on 3.8.18 she had accidentally trodden on a piece of bark on the edge of a concrete footpath with her left foot which “folded under me”. She consequently fell forward heavily onto her hands, knees and abdomen.
She stated that she was wearing steel-capped boots at the time of the incident.
She reported this at work and subsequently drove home with difficulty.
Subsequent review took place with a General Practitioner. Investigations were attended.
Treatment included use of a moon boot and a single crutch.
There was a subsequent return to work to perform “light duties” and reduced hours.
Ms Tradieh stated that on 1.1.19 her crutch slipped causing her to sustain a twisting injury of the right ankle with pain arising to the region.
Further medical review took place.
She indicated that she was subsequently referred to an Orthopaedic Surgeon at the Royal Prince Alfred Hospital. Nil surgery was advised.
There was nil subsequent return to work.
Ms Tradieh was referred to Dr Brian Martin, Consultant Orthopaedic Surgeon of Penrith/ Rouse Hill.
I have noted the medical report (12.2.19) prepared by Dr Martin which indicates the following diagnoses:
Previous inversion injury of the left ankle with the following:
· Lateral talar dome osteochondral lesion
· Likely neuropraxia superficial peroneal nerve and sural nerve
· Peroneus brevis tendon tear
Ms Tradieh proceeded to surgery performed of the left ankle. I have noted the operation report dated 17.6.20 with the procedure being outlined as follows: Left ankle arthroscopy with debridement talar chondral lesion and peroneus longus to peroneus brevis transfer.
Further surgery was performed on 26.8.20. I have also reviewed the operation report pertaining to this with the following outlined as having been performed: Ankle arthroscopy with debridement of chondral lesion and microfracture; peroneus brevis debridement and repair; right ankle lateral ligament reconstruction (Brostrom) and augmentation with internal brace.It is apparent that this second operation was associated with a wound infection and the development of a deep venous thrombosis.
A third surgical procedure was performed on 27.5.21. Based upon a review of the operation report, it is evident that this had included the following: Left ankle arthroscopy and debridement of lateral talar dome lesion; sural nerve neurolysis and neurotomy; peroneal tendon debridement; lateral ligament reconstruction (Bronstrom with internal brace).
Ms Tradieh stated that following the first and second surgical interventions, she was transferred for rehabilitation at the Baulkham Hills Private Hospital.
Injection procedures had also been conducted.
Based upon a review of the referral documentation, it is evident that input had been provided by Dr John Obeid, Consultant Physician of Bella Vista.
Medical treatment had also been provided by Dr Sushama Deshpande, Pain Consultant of Penrith/Gregory Hills. Dr Deshpande had prescribed various pain modifying medications. Injection procedures were also proceeded with.
Ms Tradieh stated that on 16.8.22 she had sustained a fall at home landing heavily on her right knee. This caused her to experience significant pain to the region of the right hip. Medical review was attended and investigations performed.
· Present treatment:
Ms Tradieh reported that she is on the following therapeutic agents: Pristiq, duloxetine, gabapentin, Naprosyn, Metformin, MS Contin, Panadol, Ozempic injections and vitamin preparations.
She attends her General Practitioner approximately every three months. There has been nil recent review with Dr Martin. She has been attending Dr Deshpande on a monthly basis.
There has been nil recent physiotherapy treatment that had earlier been conducted at various times. She reported that she endeavours to undertake home-based exercises. She has also previously undertaken pool-based activities.
There had earlier been input from a Psychologist and Psychiatrist.
She utilises hot packs on an occasional basis.
· Present symptoms:
Ms Tradieh reports constant variable pain to the region of the right hip which she reports is evident more to the right upper buttock region and right groin/anterior upper thigh. This is evident from a moderate to “strong” degree. She reports associated limitation with active range of motion pertaining to the region as a consequence of pain.
Ms Tradieh also reports intermittent pain on a daily basis with associated limitation with active range of motion at the right ankle. She attributes limitation with movement as a consequence of pain, swelling and a cramping sensation.
She is also troubled by ongoing variable pain at the left ankle of lesser degree as compared to the contralateral side.
Ms Tradieh also reports hypoaesthesia to the lateral aspect of the right ankle and hindfoot regions.
She reports that she is conscious of the surgical scars. These are reportedly sensitive to touch. She avoids wearing shoes other than Ugg boots or thongs in this respect.
Ms Tradieh considers that she is irritable and suffers from anxiety and depression.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Tradieh confirmed that she had sustained sprain injuries of both ankles when playing netball a number of years ago. She stated that those injuries had fully resolved in the short term.
See further incidents arising as documented above on 1.1.19 and 16.8.22.
Ms Tradieh reports variable low back pain with radiation to the lower limbs posteriorly arising since the subject incident.
· General health:
I have noted that she has been diagnosed as suffering from Type II diabetes mellitus.
She reports significant weight gain since the subject incident.
She indicates that she suffers from asthma and occasionally utilises a Ventolin inhaler.
She reported that she had suffered post-natal depression.
With respect to other surgical procedures, she reported that she had undergone bilateral tonsillectomy and adenoidectomy in childhood. She has also undergone nail procedures pertaining to her feet. She reported that she has undergone two surgical procedures in relation to the right knee (approximately 2010 and 2011). Variable discomfort persists pertaining to this region.
· Work history including previous work history if relevant:
It has been indicated that Ms Tradieh had been employed as a Machine Operator/Labourer working on a full-time basis with LM Hayter & Sons Pty Ltd of Werombi. She had reportedly commenced that employment in approximately 2016. That employment ceased in 2019.
There has been nil subsequent employment.
With respect to previous employment, Ms Tradieh stated that she had undertaken other labouring duties for approximately six months.
Prior to that time, she worked as a Butcher for approximately 15 years
Earlier positions related to various jobs undertaken with Bi-Lo and McDonald’s.
With respect to educational background, she reported that she had undertaken studies at TAFE in relation to community service and case management. She had also commenced studies pertaining to social work at the University of Western Sydney (incomplete).
Ms Tradieh had attended secondary school to Year 10.
I have noted that she holds a standard type C driver’s licence.
· Social activities/ADL:
Ms Tradieh is in a regular relationship. She has a son of 24 years.
She reported that she had smoked approximately 25-30 cigarettes per day but ceased in January 2024. She reported that she has a moderate alcohol intake.
Concerning sports, hobbies and interests, she reported that she had earlier enjoyed ‘four-wheel driving’ and camping.
With respect to activities of daily living, she reported that she has sleep disruption as a consequence of pain and ‘worry’.
Right hip and low back pain arises with more extended sitting postures. She is limited with standing.
She has difficulty with walking and stair use.
Ms Tradieh stated that she has difficulty with a range of household chores. Some assistance is provided by her partner.
She lives in a freestanding home with four bedrooms and two bathrooms. There is lawn front and back. She stated that the lawn is only mown infrequently.
Ms Tradieh stated that she has difficulty with most tasks in relation to dressing, undressing and showering.”
The Medical Assessor made the following comment in relation to special investigations:
“It has been indicated that Ms Tradieh did not have with her any radiological investigations at the time of the assessment. Copies of radiological reports have been reviewed contained in the referral documentation.”
The Medical Assessor conducted an examination and recorded his findings as follows:
“Ms Tradieh was a cooperative woman in nil apparent physical distress while at rest. Difficulty was apparent with positioning for the physical examination.
She was informed that I would require her full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for her.
Her weight was 145kg, lightly clothed, with a height of 162cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 49-64kg.
Ms Tradieh exhibited a slow symmetric but antalgic gait when observed walking within the confines of my office.
Girth measurements within the lower limbs were approximately as follows: 69.5cm (right thigh); 70cm (left thigh); 50cm (right calf); 50cm (left calf).
Active range of motion was assessed at both hips with use of a goniometer with maximal findings noted as follows:
Hip Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
65°
80°
Extension
0°
0°
Adduction
15°
25°
Abduction
45°
60°
Internal Rotation
35°
55°
External Rotation
30°
60°
Diffuse poorly localised tenderness was reported with palpation overlying the right hip.
Active range of motion was assessed in a similar manner at both ankles with maximal findings noted as follows:
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion (extension) | 10° | 15° |
| Plantarflexion | 45° | 45° |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 5° | 15° |
| Eversion | 0° | 0° |
Diffuse tenderness was reported with palpation pertaining to both ankles/hindfeet more laterally to the region of the left ankle.
Nil obvious soft tissue swelling was evident.
Motor system examination demonstrated normal tone and reflexes. Power testing was limited as a consequence of pain.
A healed oblique surgical scar of approximately 11cm was noted to overlie the lateral aspect of the right ankle. This had some variability with respect to pigmentation. Probable suture marks were present. Two healed portal surgical scars were noted anteriorly pertaining to this region.
With respect to the left ankle, a scar of approximately 7cm was noted to be present laterally. This had a similar appearance to that of the right side. Two anterior portal surgical scars were also evident to the region.
Ms Tradieh reported some alteration in sensation overlying the scars.
Hypoaesthesia was also stated to be present with light touch and point pressure sensation to the lateral aspect of the right foot and extending more posteriorly.
The Babinski responses were normal with both toes downgoing.”
The Medical Assessor summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
Based upon a review of the referral documentation and operative findings, it is evident that Ms Tradieh sustained talar dome trauma and that pertaining to the peroneal tendon in relation to the left ankle. Arthroscopic surgery was required. Further surgery was indicated pertaining to the region. The treating surgeon had indicated that the requirement for further surgery was as a consequence of the following: Left ankle talar dome lesion; sural nerve neuroma; recurrent left ankle instability; peroneus longus and brevis tendinopathy.
I have had the opportunity of reviewing the nerve conduction study of 28.7.22. The findings of this were consistent with trauma having been sustained affecting the sural nerve of the left lower extremity.
There is post-operative surgical scarring bilaterally.
· consistency of presentation:
Ms Tradieh presented with a straightforward and undemonstrative manner. There were nil overt features of embellishment upon the history or augmentation on the physical examination. As such, it is considered that consistency was present.”
The Medical Assessor explained his assessment of permanent impairment as follows:
“The facts on which I have based my assessment of whole person impairment are:
History, physical examination and referral documentation.
1. REASONS FOR ASSESSMENT
a. My opinion and assessment of permanent impairment
It is evident that an opinion has been sought in relation to a determination pertaining to multiple regions with reference to the relevant guides. A final combined whole person impairment of 14% has been determined.
In making this assessment, I have taken account of the following matters:
History, physical examination and referral documentation.
b. An explanation of my calculations (if applicable)
With respect to the region of the right lower extremity and taking into account limitation with active range of motion at the right hip, a 20% lower extremity impairment is determined.
With respect to the non-affected contralateral side, a potential 5% lower extremity impairment is apparent. The Guides indicate that where findings are noted to the non-affected contralateral side, this should be deducted from the region in question. As such, a 15% lower extremity impairment is determined pertaining to the right hip.
With respect to the region of the right ankle/hindfoot and taking into account limitation with active range of motion, a 14% lower extremity impairment is determined.
When the above impairments are combined, a 27% lower extremity impairment is determined which converts to 11% whole person impairment.
With respect to the left lower extremity and taking into account the region of the ankle pertaining to limitation with active range of motion, a 4% lower extremity impairment is determined.
It has been indicated that a peripheral nerve injury is also evident in relation to this region with respect to the sural nerve. When taking into account this sensory impairment, a 2% lower extremity impairment is determined. With reference to Table 16-10 (pg 498) of AMA 5, it is considered that a grade 3 deficit of 60% is applicable. When 60% is taken of 2%, a 1.2% finding is determined which rounds down to 1% lower extremity impairment.
When the lower extremity impairments of 4% and 1% are combined, a 5% lower extremity impairment is determined which converts to 2% whole person impairment.
With respect to scarring and reference to the TEMSKI table contained in the Workers Compensation Guidelines, it is evident that there are some pigmentary changes present and evidence of suture marks. There is nil loss of contour. The scars are present to regions that would be apparent if wearing shoes such as sandals. It is not considered that the scars are negatively impacting upon activities of daily living. There is nil underlying adherence. Taking the above into account, a 1% whole person impairment is determined with respect to these.
When taking into account the whole person impairments of 11%, 2% and 1%, a final combined whole person impairment of 14% is determined.
It is considered that there is nil evidence of a pre-existing injury or condition that needs to be taken into account by way of contributory impairment that would necessitate any deductions.”
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“I have had the opportunity of reviewing the medical report (5.6.23) prepared by
Dr Eugene Gehr, Consultant Orthopaedic Surgeon of Sydney. The doctor alludes to multiple impairments pertaining to the regions of the right hip, right ankle, left ankle and with respect to scarring. A final combined whole person impairment of 30% is documented. Respectfully, it is apparent that Dr Gehr had not combined the lower extremity impairments with respect to the right lower extremity and then converted this to a whole person impairment.I have also reviewed the medical reports (29.8.23, 5.10.23) prepared by Dr Richard Powell, Consultant Orthopaedic Surgeon of Sydney. In relation to the right lower extremity, he had not considered that an injury had arisen as a consequence of work pertaining to the right hip. As such, a right lower extremity impairment with respect to limitation with active range of motion at the ankle/hindfoot was documented of 3% WPI.
In relation to the left lower extremity, he had taken into account limitation with active range of motion at the ankle/hindfoot and peripheral nerve injury such that a 4% whole person impairment is documented. He had outlined a 1% whole person impairment with respect to scarring. An overall 8% whole person impairment is documented.
I have reviewed the various documentation prepared by Ms Tradieh’s treating health professionals.
Other relevant administrative documentation has also been inspected.
Various radiological reports have also been reviewed.”
The appellant complains on appeal that the Medical Assessor did not adequately explain why he differed from Dr Gehr. The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings. His examination findings differ from those recorded by Dr Gehr. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no further explanation that is required.
The appellant submitted that the Medical Assessor erred in the assessment of scarring at 1% WPI and he should have assessed 2% WPI.
The examination findings in relation to scarring are set out above as is the history pertaining to consciousness of the scarring and impact on activities of daily living (ADLs).
The Medical Assessor assessed 1% WPI as the best fit with the following reasoning:
“With respect to scarring and reference to the TEMSKI table contained in the Workers Compensation Guidelines, it is evident that there are some pigmentary changes present and evidence of suture marks. There is nil loss of contour. The scars are present to regions that would be apparent if wearing shoes such as sandals. It is not considered that the scars are negatively impacting upon activities of daily living. There is nil underlying adherence. Taking the above into account, a 1% whole person impairment is determined with respect to these.”
The criteria for rating impairment for scarring is in the Guides at Table 14.1 which is the able for the evaluation of minor skin impairment (TEMSKI).
It sets out criteria for 1% WPI as follows:
| Claimant is conscious of the scar(s) or skin condition. Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes. |
| Claimant is able to locate the scar(s) or skin condition. |
| Minimal trophic changes. |
| Any staple or suture marks are visible. |
| Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/ hairstyle |
| Minor contour defect |
| Negligible effect on any ADL. |
| No treatment, or intermittent treatment only, required. |
| No adherence. |
And for 2% WPI as follows:
| 2% WPI |
| Claimant is conscious of the scar(s) or skin condition. Noticeable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes. Claimant is able to easily locate the scar(s) or skin condition. Trophic changes evident to touch. Any staple or suture marks are clearly visible. |
| Anatomic location of the scar(s) or skin condition is usually visible with usual clothing/hairstyle. |
| Contour defect visible. |
| Minor limitation in the performance of few ADL. |
| No treatment, or intermittent treatment only, required. |
| No adherence. |
The Guides specify that the table uses the principle of “best fit” requiring the Medical Assessor to assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. This is exactly what the Medical Assessor has done here applying his clinical judgment to assess the best fit given the impairment criteria. It is not possible to point to one criteria (impact on ADLs because the scar can be seen when sandals are worn) and say there is an error because this is specified in the 2% table because there are findings that relate to both the 1% criteria and the 2% criteria and the Medical Assessor had to make a clinical judgment as to the best fit. He assessed 1% WPI as the best fit and the Appeal Panel can discern no error and no application of incorrect criteria. The Appeal Panel considers that the Medical Assessor’s findings on the day of examination are consistent with a 1% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 June 2024 should be confirmed.
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