Ulacco v De Martin & Gasparini Pumping

DETERMINATION OF APPEAL PANEL
CITATION:	Ulacco v De Martin & Gasparini Pumping [2024] NSWPICMP 470
APPELLANT:	Vincenzo Ulacco
RESPONDENT:	De Martin & Gasparini Pumping
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Paul Curtin
DATE OF DECISION:	4 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (skin); whether Medical Assessor erred in assessing non-facial skin under the table for the evaluation of minor skin impairment (TEMSKI); whether class 2 impairment was warranted; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Mr Ulacco, appeals from the Medical Assessment Certificate of Medical Assessor Giles dated 27 June 2023.
The Medical Assessor assessed a 12% whole person impairment (skin) as a result of injury on 3 March 2011 (deemed date) due to sun exposure in the course of employment. His assessment included 5% whole person impairment in respect of facial skin, and 7% whole person impairment in respect of the remaining skin.
The appellant submits that the assessment of 7% whole person impairment for the remaining skin demonstrated error, or the application of incorrect criteria, because the evidence satisfied the criteria for a class 2 impairment under Table 8-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) (AMA5), rather than class 1 in which the worker was assessed. Class 1 provides for an assessment of whole person impairment within the range of 1% to 9%. Class 2 provides for assessment within the range 10% to 24%.
No error is alleged in respect of the assessment of facial skin.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the Guidelines.

Submissions

The parties made written submissions which have been taken into account. They are not repeated in full, but are summarised briefly below.
The appellant submits as follows:
(a)    The skin impairments observable on the appellant’s scalp and both sides of his head considered together with lesions assessed on the left forearm and back, are greater than ‘minor’. This excludes assessment in accordance with Table 14.1 of the Guidelines (the table for the evaluation of minor skin impairment (TEMSKI)).
(b)    Impairment should have been assessed under class 2 of Table 8-2 of AMA5, because:
(i)the Medical Assessor found that the changes “have caused a considerable restrictions to the normal activities of his daily life and … do not conform neatly to the TEMSKI criteria”, and
(ii)they better fit the criteria in class 2 than class 1.
(c)    A re-examination by a member of the Appeal Panel is necessary.
De Martin & Gasparini Pumping (the respondent employer) submits as follows:
(a)    If the Appeal Panel discerns error, it should not examine the worker, but assess on the papers, excluding a consideration of the neck and other components of facial anatomy in AMA5 at [11.3].
(b)    The Medical Assessor did not take a history consistent with his finding that there was a considerable restriction to the normal activities of his daily life. There was no evidence of such restrictions before him.
(c)    When Approved Medical Specialist (AMS) Dr Gillam examined the worker in 2013, she did not find any restrictions on activities of daily living. Nor did Dr Freeman or Dr Sanki, whose reports were before Dr Gillam.
(d)    In his report of 2 September 2022, Associate Professor Hamann, on whose report the [insurer] relied, assessed a class 1 impairment under Table 8-2. He noted ‘few’ restrictions on activities of daily living (ADLs).
(e)    In his report of 24 January 2023, Dr Lobel assessed a class 1 impairment, indicating that the criteria for class 2 were not satisfied, because they required limited performance of some ADLs.
(f)    There is “a lack of evidence before [Medical Assessor] Giles to demonstrate any changes with respect to the Table 8.2 components as previously considered by AMS Dr Gillam”.
(g)    The Table 8.2 components relied on by the appellant are insufficient “to elevate the appellant into Class 2”.

Consideration

Chapter 8 of AMA5 applies to the assessment of impairment of the skin system, subject to the modifications made by Chapter 14 of the Guidelines.
Table 8-2 of AMA5 divides impairment into five classes in ascending order of the degree of whole person impairment. Classes 1 and 2 provide for ranges of whole person impairment from 1% to 9% and 10% to 24% respectively. The criteria for each class are set out in the Table.
Table 14.1 of the Guidelines (TEMSKI) is an ‘extension’ of class 1 of Table 8.2: Guidelines at [14.7]. It divides class 1 into five subclasses of impairment within the range 0% to 9% whole person impairment, in ascending order of severity. The fifth subclass defines the criteria in the range 5% to 9% whole person impairment.
As indicated, the Medical Assessor assessed a 7% whole person impairment in respect of non-facial skin. It follows that he must have applied the fifth subclass in TEMSKI. Contrary to the appellant’s submission, it is not “equivocal from the MAC as to whether the MA applied Class 1 of Table 8-2 or a rating from the 5^th column of the TEMSKI Scale set at Table 14.1”. Skin impairment in the range 0% to 9% falls to be assessed in accordance with Table 14.1.
At [9a], the Medical Assessor gave the following reasons for assessing non-facial skin in that way – emphasis added:
“The changes to the skin elsewhere, including the scalp, are apparent and Mr Ulacco can locate them. There are no stitch marks, no contour deformities and no area of skin which adheres to the underlying structures but the changes have caused a considerable restriction to the normal activities of his daily life and they require constant surveillance and treatment. In my opinion, these changes do not conform neatly to the TEMSKI criteria but, in my opinion, they have caused 7% whole person impairment.”
The relevance of the absence of adherence to underlying structures was explain at [9c], in the context of discussing Dr Hamann’s assessment:
“The face should be assessed separately to the skin elsewhere, but it cannot be assessed as causing a Class 2 impairment unless there is some loss of the supporting structures and that is not the case here.”
For the reasons below, a class 2 impairment does not require that there be adherence to, or loss of, underlying or supporting structures.
The task for the Medical Assessor was to assess whether the criteria for a class 1 or class 2 impairment under Table 8-2 were met. If the criteria for class 1 were met, he was required to assess impairment in accordance with the TEMSKI (Table 14.1), by applying the criteria in each subclass to determine into which subclass the effects of injury best fit. If the criteria for a class 2 impairment in Table 2 were satisfied, he was required to assess whole person impairment within the range 10% to 14%.
The Guidelines do not expressly say whether the criteria for class 1 impairment in Table 8-2 must be met before TEMSKI is applied, or whether the criteria in TEMSKI are to be applied without first considering the criteria in class 1 of Table 8-2. Nothing turns on it, as the criteria in TEMSKI are consistent with those for a class 1 impairment under Table 8-2. Satisfaction of the criteria in any subclass of TEMSKI will satisfy the criteria for class 1 in Table 8-2.
For the reasons he gave, the Medical Assessor found that the criteria for class 2 were not met, and proceeded to assess in accordance with Table 14.1.
The criteria for a class 2 impairment under Table 8-2 are as follows:
(a)    skin disorder signs and symptoms present or intermittently present;
(b)    limited performance of some ADLs, and
(c)    may require intermittent to constant treatment.
Contrary to the reasons given by the Medical Assessor, these criteria do not include a requirement that there be “some loss of the supporting structures”, or an “area of skin which adheres to the underlying structures”. Loss of supporting structures forms one of the criteria for assessment of facial disfigurement in Table 6.1 of the Guidelines (class 2), but has no application in the assessment of the skin. The application of such an additional criterion to an evaluation of whether the requirements for a class 2 impairment were met, amounted to the application of an incorrect criterion. Error is demonstrated on the face of the certificate, necessitating that it be set aside.
Having regard to the findings of the Medical Assessor, in our view the criteria for a class 2 impairment (Table 8-2) were satisfied. His findings on examination, and the photographs which he included as part of the Medical Assessment Certificate, demonstrate that skin disorder signs were present. Criterion (a) was satisfied. The Medical Assessor found that “the changes have caused a considerable restriction to the normal activities of his daily life”. Criterion (b) was satisfied. He also found that “the changes … require constant surveillance and treatment”. Criterion (c) was satisfied.
The satisfaction of all three criteria necessitated assessment within class 2 of Table 8-2. The omission to make such an assessment also demonstrates error.
One of the criteria for subclass 5 of TEMSKI is that “no treatment, or intermittent treatment only [is] required”. As indicated, the Medical Assessor found that the changes required constant surveillance and treatment. That criterion was not satisfied. In our view, it was not reasonably open to the Medical Assessor to find that the criteria for a subclass 5 impairment in the TEMSKI were satisfied, as he did by necessary implication, or to assess within the range for a subclass 5 impairment. His doing so also demonstrates error.
That is so, even if neither AMS Dr Gillam in 2013, nor previous assessors Dr Freeman or Dr Sanki, found any restriction in ADLs. It was the Medical Assessor’s task to assess the worker as he presented at examination on 23 June 2023, as he did. He was not bound to accept findings made by others in 2013 or earlier.
For the same reasons, he was not bound to accept or agree with the class 1 assessments made by Associate Professor Hamann in September 2022 or by Dr Lobel in April 2023.
Much of the respondent’s submissions amounts to an assertion of error in the Medical Assessor’s finding that “the changes have caused a considerable restriction to the normal activities of his daily life”. As the respondent does not appeal from the assessment of the Medical Assessor, or from any finding made by him including that finding, and the appellant has not alleged error in respect of that finding, the Appeal Panel has no power to revoke the Medical Assessment Certificate on the basis that there was no evidential basis for the finding. As indicated, the making of that finding caused criterion (b) of Class 2 to be satisfied. In any event, as the Medical Assessment Certificate must be set aside for other reasons, the Appeal Panel has made its own assessment, including an assessment of restrictions on activities of daily living.
The respondent’s submissions make reference to evidence of treatment without specifying its relevance. If it argues that the Medical Assessor’s finding that “the changes … require constant surveillance and treatment” was not supported by, or was contrary to, the evidence, the reasoning in the preceding paragraph applies. The finding that the changes required constant surveillance and treatment caused criterion (c) of class 2 to be satisfied.
The Appeal Panel referred to the worker for examination to one of its members, Medical Assessor Curtin. His report follows.
“1.     The workers medical history, where it differs from previous records
The history is largely unchanged. Mr Ulacco commenced work in 1968 aged 20 years, shortly after arriving in Australia from Italy. He worked as a labourer laying concrete with De Martin & Gasparini for at least 30 years, after which his duties also included part-time truck driving. In 2006 after a back injury he became a traffic controller and eventually retired from the workforce in 2012 . It is clear that his work involved considerable exposure to solar radiation. There is no evidence that Mr Ulacco was ever treated for any skin condition prior to commencing work.
Solar induced skin lesions started to appear on his face in 1998, and these were initially treated by his GP Dr Rahman, and subsequently by another GP, Dr Sanki. The documentation suggests that his skin condition has become more of a problem in the past five or six years. A report dated 13/01/2011 by Dr Suzanne Freeman, Dermatologist, refers to 4 skin lesions removed from Mr Ulacco’s face the previous year by Dr Sanki, but apart from that, there had only been one occasion about five years beforehand when he had lesions on his face and scalp treated with liquid nitrogen.
The documents include records from Dr Sanki covering the period 2014 to 10/9/2019. On the 28/5/2014 he attended for laser treatment of ‘multiple areas of keratoses and a BCC nose and forehead’. There is no further mention of any skin cancer treatment until the 17/04/2018 when he had laser treatment for skin cancer. In 2019, he attended Dr Sanki on 11 occasions, of which 6 were related to skin cancer which appear to have been treated with applications of Efudix cream.
The documents include records from a Dermatologist, Dr Paul Weller, covering the treatment for Mr Ulacco in the period 4/11/2019 to 15/11/2021. In that time he removed BCCs from the left temple and right inner canthus, and a melanoma in-situ lesion was removed from his back. There is also a reference to cryotherapy treatment carried out on one occasion on the 15/11/2021.
Mr Ulacco also attended another Dermatologist, Dr Iris Weingarten, at the CBD skin Cancer clinic where he attended on four occasions in 2020 and received treatment with Efudix cream and underwent a shave biopsy of the melanoma in situ on his back.
There are no records of any treatment provided over the past three years. Mr Ulacco said that he has continued to be reviewed by Dr Weller every three months and has received cryotherapy treatment at intervals. He said that he was not aware of any skin lesions that had been surgically removed in the past three years.
2.      Current symptoms and effects on Activities of Daily Living (as listed in AMA 5).
Self care, teeth, personal hygiene.
Mr Ulacco said that he was aware of some facial disfigurement due to scarring from previous treatment and also due to the presence of skin lesions. He said that he was not unduly upset or embarrassed about his facial appearance. He was aware of the need to avoid undue exposure to direct sunlight. If he was planning to go outside, he said he would apply sunscreen to his face and scalp, and he also said that he always wore a hat when we went outside. He said that he did not apply any regular topical treatment to his face or scalp. He said that he continued to consult Dr Weller every three months, and that on those occasions he would often receive cryotherapy treatment which could result in multiple small healing lesions for two or three weeks, some of which lesions would require dressing.
Communication, writing, typing seeing, hearing speaking.
None of these are affected by his skin condition.
Physical activity: Standing, sitting, reclining, walking, climbing stairs.
Mr Ulacco said that he lived in a house with his wife, and that he was able to carry out normal domestic duties, such as lawnmowing, although he was not as strong as he had been a few years ago. He still enjoys gardening although he would stay indoors on a hot day. The physical findings were broadly consistent with these complaints.
Sensory function: Hearing, seeing, tactile feeling, tasting, smelling.
He said that his scalp is sometimes itchy, and that if he scratches it, it is easy to disturb a crust which can cause minor bleeding.
Non-specialised hand activities: Grasping, lifting, tactile discrimination
None of these are affected by his skin condition.
Travel: Writing, driving, flying.
Mr Ulacco said that he still continues to drive. He said that he was able to travel to Italy for a visit four years ago.
Sexual function.
This issue was not discussed with Mr Ulacco.
3.      Findings on clinical examination.
Mr Ulacco was a moderately overweight Caucasian man of 75 years. He had a fair complexion, a well trimmed grey beard, and a scalp almost devoid of hair apart from a fringe cut short. He had a BMI of 31.7 (94 kg and 173 cm)
There was some minor deformity of the nasal tip and the right cheek as a result of surgical scarring. There were multiple solar keratoses, some of which were ulcerated, distributed on his face and especially on his scalp, which was thin and atrophic. There was uneven pigmentation and erythroplasia together with evidence of rosacea on his cheeks. There was a small BCC just behind his right ear and another one on the upper neck, just behind the left ear. There were large, darkly pigmented seborrhoeic keratoses on the lateral scalp, particularly on the left side.
There were a few keratoses on the left side of his neck, but otherwise, his chest and abdomen were pale and showed evidence of moderate solar exposure only. His back, forearms and hands were lightly tanned with some solar lentigenes and uneven pigmentation, but with little evidence of the keratotic change visible on his face and scalp. There was a fine line, pale transverse scar extending for 4 cm in his upper back where the in-situ melanoma had been removed. There was no evidence of any recurrent melanotic change.
His legs were relatively unaffected by actinic damage.
5.      Comments on Whole Person Impairment
This appeal is required to address impairment due to scarring and disfigurement of the skin, as distinct from scarring and disfigurement of the face. The bodily skin, also includes the skin of the scalp, which in this case was the area on Mr Ulacco’s body which was most severely affected by solar damage.
The WorkCover Guidelines 4th Edition direct the assessor to table 8-2 in AMA 5, which describes five classes of permanent impairment which are determined by three components, namely signs and symptoms of skin disorders, limitations in the activities of daily living and the requirement for treatment. For Class1 impairments the TEMSKI chart (Guidelines P 74) is to be used to further define the precise level of impairment. The other classes are largely separated by the extent to which activities of daily living (ADLs) have been impaired.
Eight groups of ADLs are listed in table 1-2 on page 599 of AMA5. The Guidelines also state that the skin is regarded as a single organ, and that the scars should be measured together rather than assessing individual scars separately.
The documents provided suggest Mr Ulacco requires regular but not constant treatment. That treatment in recent years has largely been by nonsurgical means, although at the present time he currently has two small lesions requiring surgical excision. As it stands his ADLs are affected to the extent of having to present every three months for treatment which is usually non-invasive, and for having to avoid undue exposure to sunlight. These restrictions are sufficient to satisfy the requirement for Class 2 impairment that there has been limitation in performance of some of the activities of daily living. The nature of his skin condition is such that the impairment is rated at the lower end of the available scale at 10% WPI.”

Assessment of the Appeal Panel

Having regard to his specialist expertise and experience, the Appeal Panel accepts the clinical findings of Medical Assessor Curtin. Those findings demonstrate that “Skin disorder signs and symptoms [are] present”. Criterion (a) of Table 8.2 is satisfied.

The only limitations in ADLs elicited by the Medical Assessor were his having to avoid gardening on a hot day to avoid undue sun exposure, and the need to apply sunscreen and a hat when going outdoors. Though at the low end of the spectrum, there is at least a limitation on the activity of gardening, and on going outdoors on hot days generally. We are satisfied that there is at least “limited performance of some activities of daily living”. Criterion (b) of Table 8.2 is satisfied.
We agree that criterion (c) is also satisfied, because Mr Ulacco requires regular but not constant treatment. It follows that he falls to be assessed within class 2.
Within the range of 10% to 14% whole person impairment, we assess 10% whole person impairment, because the signs and symptoms of skin disorder, the limitations on his ADLs, and his requirement for treatment, all fall within the low range of the spectrum for a class 2 impairment.
We revoke the Medical Assessment Certificate of Medical Assessor Giles, and replace it with the attached Medical Assessment Certificate.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3194/23
Applicant:	Vincenzo Ulacco
Respondent:	De Martin & Gasparini Pumping

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 Giles 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	Sub-total/s % WPI (after any deductions in column 6)
The face	3/3/11	Chapter 6 page 34 paragraph 6.4 Table 6.1	Chapter 11.3 pages 255-256 Table 11-5	5%	0	5%
The skin	3/3/11	Chapter 14 pages 73-74 Table 14.1	Chapter 8.7 page 178 Table 8-2	10%	0	10%
Total % WPI (the Combined Table values of all sub-totals)					15% WPI

[2024] NSWPICMP 470

4 June 2024