United Group Rail Services Pty Ltd v Attard

DETERMINATION OF APPEAL PANEL
CITATION:	United Group Rail Services Pty Ltd v Attard [2022] NSWPICMP 97
APPELLANT:	United Group Rail Services Pty Ltd
RESPONDENT:	Daniel Attard
APPEAL PANEL:	Member Deborah Moore Dr Paul Curtin Dr Tim Anderson
DATE OF DECISION:	27 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Appellant noted the Medical Assessor (MA) failed to refer to its IME report which claimed that the respondent had not reached maximum medical improvement (MMI); Panel confirmed failure to do so is a demonstrable error; re-examination required; respondent suffered from chronic recurrent dermatitis; Panel found MMI had been reached and that the MA’s findings regarding the effects on daily activities was consistent with the evidence; Held- Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 June 2021 United Group Rail Services Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr John Giles, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 28 April 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, 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.
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, 4^th ed 1 April 2016 (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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination. The Panel determined that the MA made no reference to a report of Associate Professor Shumack dated 26 April 2021 even though it was sent to him by the Personal Injury Commission”.
Failure to consider that report is a demonstrable error.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Paul Curtin of the Appeal Panel conducted an examination of the worker on 5 May 2021 and reported to the Appeal Panel

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA erred in finding that the worker’s condition of chronic dermatitis affecting both hands had reached maximum medical improvement (MMI) as required by paragraphs 1.15 and 1.16 of the Guidelines. In addition, the appellant submits that there is no evidence supporting a change in the worker’s condition and activities of daily living (ADL’s) since the MAC issued by Dr Sippe in 2014.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of his skin condition resulting from a deemed date of injury of 19 March 2012.
The MA obtained the following history:
“Mr Attard is a trained boilermaker and in 1997, he was employed by United Group Rail Services, at Auburn. In 1998, he was asked to run the paint workshop, which he did for about eighteen months. In this work, he had to clean the paint guns with a special paint wash and although he wore gloves, they leaked and, for about an hour each day, his hands were wet. It was around this time that he developed contact dermatitis involving both of his hands.
In about 2000, he was referred to a dermatologist, contact dermatitis was diagnosed and he was prescribed a topical steroid cream; he is now managed by his local doctor.
Because of his dermatitis, which has never really abated, he stopped working at the workshop and had about ten years working in sales for a gutter protection firm during which time his dermatitis improved although it never went away. Because he could not survive on the wages he received, he returned to boiler making part-time but he now works for himself doing whatever work he can whenever his dermatitis has abated. Here I will enclose some representative photographs of his dermatitis taken over the years.
Mr Attard’s condition has deteriorated over the past twelve months. Because of the Covid19 pandemic, he is expected to often use alcoholic sanitiser on his hands and, as this has exacerbated his condition, he regularly washes his hands with Dove soap because it is very gentle and it also includes a moisturiser. He told me he can work now, but if his hands flare up, he has to stop working until they heal and this never takes less than two weeks.”
Present treatment was noted as follows:
“Mr Attard is not having any regular treatment. He will use Diprosone ointment during an exacerbation of his dermatitis and although his hands will heal faster with the ointment, the skin becomes more fragile and the dermatitis flares up more easily.”
Present symptoms were described as: “Recurrent blister formation on his hands, both palmar and dorsal surfaces, associated with skin cracking, bleeding and infection.”
The MA added: “Social activities/ADL: He used to do archery but he can no longer do it because of the problems with his hands; he now does target shooting.”
Findings on examination were reported as follows:
“Mr Attard was a pleasant, co-operative man of stated age. He told me his dermatitis was in a relatively quiescent phase. The dorsum of his hands was more involved than the palmar surface and the left hand was more severely affected than the right.
The skin on his hands was thickened and dry and some cracking was evident on the dorsal surfaces as shown in the photograph below (photographs not included here).”
The MA summarised the injuries and diagnoses as “Contact dermatitis involving both surface of both hands; the forearms are not involved.”
He added: “Mr Attard appeared to be a very reasonable man, he did not appear to be exaggerating the problems caused by his skin condition and the appearances are consistent with the clinical history.”
When asked: “Have all body parts/systems stabilised/reached maximum medical improvement?” the MA said:
“Unfortunately, Mr Attard’s condition is a chronic one which is prone to exacerbations and remissions, so it cannot strictly be considered to have stabilised; however, as there will be less than 3% change in impairment over the next twelve months, for the purposes of this report it can be considered to have stabilised and to have reached maximum medical improvement.”
The MA assessed 18% WPI. He explained his calculations as follows:
“In assessing the impairment here, I have referred to examples in AMA5. Two examples are given on page 181, 8-8 & 8-9, both of which have been assessed as causing 15% WPI but, in my opinion, Mr Attard’s impairment is greater than this; however, it is not as bad as that in Examples 8-10 & 8-11 which are assessed as causing 20% WPI, so, in my opinion the ‘best fit’ for the impairment caused by his injury would be 18%.”
In commenting upon other medical opinions, the MA said:
“I perused all the documents provided but the most relevant ones were the reports by Dr Michael McGlynn, Plastic Surgeon, dated 20th February 2019 and particularly 7th October 2020 because that is more recent and my opinion about the impairment I have assessed is exactly the same as that assessed by him.”
Clearly no reference was made to the report of Dr Shumack dated 26 April 2021, also more recent than the reports referred to by the MA.
Dr Shumack considered that the respondent had not reached MMI.
The appellant submits as follows:
“The opinion of Associate Professor Shumack if accepted, militates in favour of a finding that the worker’s condition has not reached MMI.
The MAC makes no reference to the report of Associate Professor Shumack and more importantly the opinion that he expresses.
By(incorrectly) stating that Dr McGlynn’s reports were the most recent reports available to him suggests that he either didn’t see or didn’t consider A/Prof Shumack’s opinion which clearly post-dated the examination and report of Dr McGlynn.
The reasons given rely upon the recency of Dr McGlynn’s report. If that is an appropriate rationale for acceptance of or an agreement with a particular medical opinion, by that rationale that of A/Prof Shumack should prevail.
The appellant acknowledges that the task of the MA is not to choose between competing clinical opinions of medical practitioners but to form his or her own clinical judgment. However, in this instance the MA has his expressed his opinion based on the recency of Dr McGlynn’s opinion. Thus, having embarked on the process of assessment by relying, at least in part, on the qualified medical opinion of one party, the Medical Assessor was obliged to consider the opinion of the other party’s medical expert.
The late Dr Sippe, a dermatologist and AMS (as he then was) issued a MAC dated 15 December 2014 in previous…proceedings. A copy of that MAC was provided to the MA in this matter as it was attached to the Application to Resolve a Dispute. Dr Sippe assessed the worker at the time as having 13% WPI. The basis of that assessment was on Class 2, 10%-24% Impairment of the Whole Person. In coming to that conclusion, Dr Sipe stated as follows: ‘The pattern of his dermatitis appears to be fairly constant and as such I feel can be estimated. He has limitations in some activities of daily living but does require intermittent constant treatment. He has some restrictions on the use of his hands but is able to function at work, recently working as a boiler make cutting steel, when he suffered his industrial accident.’
Dr Sippe states in his MAC the following: ‘My comments differ slightly from that expressed by Dr Freeman, While he does have significant dermatitis, he has been able to work recently so that while he has restrictions, the restrictions are not at the level that prevent him from using his hands or engaging in work activities.’
There is no evidence supporting a change in the worker’s condition and activities of daily living since the MAC issued by Dr Sippe in 2014.
The MA in this matter has made his assessment on incorrect criteria by assessing the worker in accordance with examples 8-10 & 8-11 on page 181 of AMA5.”
In his report of 26 April 2021 Dr Shumack said:
“The worker has an irritant contact dermatitis involving both hands. This has been fluctuating in intensity since 2000… Persistent chronic irritant contact dermatitis can occur when irritation occurs on the hands and can become persistent. This is the likely scenario in Mr Attard’s case as he has undertaken quite a number of jobs which are irritating as far as his hands are concerned…
The worker has not been consistent with the treatment of his hand dermatitis. This should involve the regular use of moisturising agents and the fairly regular although intermittent use of strong topical steroids.
I do not believe the worker has reached maximum medical improvement. The worker has not seen a treating dermatologist for many years, and does not use thick moisturisers on a regular basis and has not maximised the use of topical steroids such as Diprosone OV ointment.
I believe the worker needs to be reviewed by a treating dermatologist for consideration of patch testing to rule out the possibility of an allergic reaction to a chemical present in his regular environment. The worker also needs to see a treating dermatologist to maximise appropriate therapy to his chronic irritant dermatitis involving the hands…”
Given the issues raised on appeal, the Panel agreed that Mr Attard should be re-examined.
Due to the COVID situation, this did not occur until 5 April 2022.
Dr Curtin of the Panel carried out the re-examination and reported to the Panel as follows:
“The history is largely unchanged although some additional details have emerged. The history of dermatitis on both hands dates back to 1998 when he was working for United Group Rail Services at Auburn…
Contact dermatitis was eventually diagnosed by a Dermatologist, Dr Allan Cooper, in 2000 and he had to take time off work to enable his hands to recover. Ever since then recurrent episodes of dermatitis have prevented him from pursuing his occupation as a boilermaker/fitter in any full-time position for an extended period…
In December 2000 he was reviewed by Dr Cooper, who carried out patch testing which was negative to standard allergens., (This is not surprising, considering that the agents that cause blistering on his hands don’t have the same effect if applied elsewhere on his body).
Dr Edmund Lobel, Dermatologist, reported on Mr Attard in 2011 that he had ‘persistent post occupational dermatitis’ which was a contact dermatitis that could continue even after the withdrawal of the offending contactant. He also reported at that time that the dermatitis was confined to the dorsum of both hands. Mr Attard now says that the dermatitis can also affect the palms of his hands, and when that occurs the condition is particularly painful and disabling.
Mr Attard believes that there has been a deterioration in his condition since the previous Certificate was issued in 2014. He says that the recovery time has lengthened once a flareup has occurred, and that as a result he is unable to work for longer periods. The Covid pandemic which commenced at the beginning of 2020 brought additional problems. He found that his hands were particularly sensitive to sanitising sprays or solutions. He had to rely on others to do his shopping because he felt unable to comply with the sanitising requirements of most shops.
Current symptoms and effects on Activities of Daily Living
Mr Attard said that at the moment there was no active dermatitis and his hands felt comfortable. Currently he is working on structural steel frames for two home units, and after fabrication he will go on site to install them. He is extremely careful however, to avoid contact between his hands and a wide range of products that can precipitate a dermatitis flareup. He avoids all detergents and for domestic cleaning purposes will use a small amount of vinegar dissolved in a bucket of water. When using his dishwasher, he uses tongs or a wand to manage detergents. If he uses rubber gloves, he will first wash out the inside of the gloves to remove any powder. He is unable to tolerate latex gloves. In order to wash his car he finds it necessary to go to an automatic car wash. The report of Dr Schumack has recommended the regular use of moisturisers but Mr Attard has found that he is unable to tolerate even such simple agents as sorbaline and Vaseline. He has found some moisturising relief by showering with Dove soap. He is unable to use other soaps, even the bland glycerin- based baby soaps. He cuts his hair very short to avoid the need to use any shampoos. He won’t apply sunscreen to his face or body using his fingers. He will either use gloves or get his son to apply it.
When a flareup occurs, for a few days he will use a strong topical steroid (Diprosone OV) which he will apply at the end of the day, and leave undisturbed overnight. It is then a matter of waiting for the dermatitis to subside. It is during this time that his sleep is likely to be disturbed by pruritus. He reports waking in the morning to find his bedclothes bloodstained from inadvertent scratching during the night. His skin condition has resulted in disruption of his social and recreational activities. He feels that the various lifestyle restrictions which have resulted were a factor in the breakup of his marriage in 2012. Those restrictions have also impacted on his hobbies of archery and target shooting. He would like to compete in competitive archery, but he can never be sure of being fit when the competitions occur. Target shooting is not a problem in itself, but he has to delegate the cleaning and maintenance of his gun because of intolerance to the cleaning agents…
Findings on clinical examination.
(In addition to the teleconference, Mr Attard also supplied various photographs taken of his hands during an acute flareup in the period 2019-2020, and these photographs are attached). Mr Attard attended the teleconference promptly and was cheerful and cooperative throughout the interview. He appears to be a heavily built Caucasian man with fair skin. His scalp is shaven and he wears a short beard.
The condition of his hands was very similar to the photographs supplied by Dr Giles in his Certificate. There was no actual inflammation or ulceration but the skin on the dorsum of the hand was thickened, roughened and swollen in a patchy fashion. There did not appear to be any restriction of movement. Mr Attard said that the dermatitis when it occurs never extends above the level of the wrist.
The acute phase photographs supplied by Mr Attard show lichenification and patchy ulceration on the dorsum of the left hand and fingers. There was also a 4 x 3 cm patch of dermatitis on the thenar eminence on the palm and the volar aspect of the little finger.
Comments on the issues raised in the s237 Decision of the Dispute Support Officer
There were concerns that the Certificate of Dr Giles was unclear as to whether Mr Attard’s condition had reached a state of maximum medical improvement, particularly in view of the report of A/Prof Schumack which suggested that treatment options had not been exhausted, and that therefore further improvement was a possibility. The management options suggested by A/Prof Schumack included patch testing, the rigorous use of moisturiser and the regular application of a high-strength topical steroid. As noted above, Mr Attard underwent a patch testing program when his condition first appeared and the results were unhelpful. Mr Attard is also emphatic that his hands are intolerant of a wide range of products including moisturisers. He does use a high-strength topical steroid when the flare ups occur, but then only sparingly, because he says that the steroid makes his skin fragile and easily damaged by his heavy manual work. It appears to this assessor that over a 24 year period, Mr Attard has learned how to manage his unusual skin condition with some success, while at the same time being gainfully employed in the occupation for which he was trained. Mr Attard has arrived at this point with the benefit of advice from a number of Dermatologists since his condition first appeared (Dr Allan Cooper 2000, Dr Edmund Lobel 2011, Dr S. Freeman 2012, Dr D Gillam 2013 and Dr J Sippe 2014). There is evidence that the dermatitis of his hands has persisted and is still current. The question of deterioration since 2014 appears to rely on the opinion of Mr Attard himself. His condition appears to satisfy the definition of maximum medical improvement found in the Workers Compensation Guidelines, that is, that the condition is well stabilised and unlikely to change substantially in the next year with or without medical treatment…”

The Panel accepts the findings and conclusions of Dr Curtin.
We are satisfied that Mr Attard has reached MMI, notwithstanding the opinion of Dr Shumack which we have carefully considered.
As regards the issue that there is no evidence supporting a change in the worker’s condition and ADL’s since the MAC issued by Dr Sippe in 2014, we note that the MA accepted the account provided by Mr Attard as to the impact on his ADL’s.
For example, the MA noted “although his hands will heal faster with the ointment, the skin becomes more fragile and the dermatitis flares up more easily” and “recurrent blister formation on his hands, both palmar and dorsal surfaces, associated with skin cracking, bleeding and infection.”
This clearly has an impact on his ADL’s.
Of more significance however is the MA’s comment that:
“Mr Attard’s condition has deteriorated over the past twelve months. Because of the Covid19 pandemic, he is expected to often use alcoholic sanitiser on his hands and, as this has exacerbated his condition, he regularly washes his hands with Dove soap because it is very gentle and it also includes a moisturiser. He told me he can work now, but if his hands flare up, he has to stop working until they heal and this never takes less than two weeks.”
We agree that, as Dr Curtin noted, “The question of deterioration since 2014 appears to rely on the opinion of Mr Attard himself.” However, there seems to us to be no reason why we should not accept his account, particularly in light of the MA’s observation that:
“Mr Attard appeared to be a very reasonable man, he did not appear to be exaggerating the problems caused by his skin condition and the appearances are consistent with the clinical history.”
For these reasons, the MAC issued on 28 April 2021 should be confirmed.

[2022] NSWPICMP 97

27 April 2022