Valesini v Startrack Express Pty Ltd
[2023] NSWPICMP 572
•14 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Valesini v Startrack Express Pty Ltd [2023] NSWPICMP 572 |
| APPELLANT: | Daniel Valesini |
| RESPONDENT: | Startrack Express Pty Ltd |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 14 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker sustained injury to his left lower extremity (ankle and foot) and consequential condition of his right lower extremity (ankle), and TEMSKI scarring in the course of his employment; approved Medical Assessor (MA) assessed 8% whole person impairment (WPI) and issued Medical Assessment Certificate (MAC) on 22 December 2016; worker made a further claim for WPI and MA assessed 13% WPI and issued a MAC on 3 June 2021; the parties had agreed that the worker’s WPI as a result of TEMSKI scarring was 1%; Certificate of Determination (COD) was issued on 14 September 2021, in respect of 14% WPI; the worker, having undergone surgery to his right ankle, sought a reconsideration of the MAC dated 3 June 2021 and revocation of the COD; on 8 June 2023, the COD was revoked, and the matter remitted to the President; the worker lodged an appeal on the grounds that there had been a deterioration in his condition that resulted in an increase in the degree of permanent impairment; and the availability of additional relevant information; both the worker and the employer relied on additional evidence; the Appeal Panel determined to admit the additional evidence of both the worker and the employer; the Appeal Panel considered that there had been a deterioration in the worker’s condition and therefore error had been established; it was considered necessary for the worker to undergo a re-examination by a Medical Assessor member of the Appeal Panel; MA of the Appeal Panel assessed 9% WPI; Held – MAC dated 3 June 2021 revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant, Daniel Valesini (Mr Valesini) sustained injury to his left ankle and foot and a consequential condition of his right ankle on 6 September 2011.
The appellant claimed permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury to his left lower extremity (ankle and foot) and right lower extremity (ankle) and TEMSKI scarring.
On 13 December 2016, the appellant was examined by Approved Medical Specialist (AMS) Dr Ian L Meakin.
Dr Meakin issued a Medical Assessment Certificate (the first MAC) on 22 December 2016. He assessed the appellant with 8% whole person impairment (WPI) as a result of injury to his left lower extremity; right lower extremity; and TEMSKI scarring.
The appellant made a further claim for permanent impairment compensation on 22 October 2020.
On 27 April 2021, with the consent of the parties, Member Deborah Moore remitted the matter to the President for referral to a Medical Assessor for assessment of WPI as a result of injury to the right lower extremity (ankle) as a result of injury on 6 September 2011.
Member Moore noted that the parties had agreed on the permanent impairment as a result of injury to the left lower extremity (ankle) and TEMSKI scarring.
The appellant was again examined by Dr Meakin, Medical Assessor, on 25 May 2021.
Dr Meakin issued a MAC (the second MAC) on 3 June 2021. He assessed the appellant with 13% WPI as a result of injury to the left lower extremity (ankle) and right lower extremity (ankle).
On 14 September 2021, Principal Member Bamber issued a Certificate of Determination (the first COD). Startrack Express Pty Ltd (the respondent) was to pay to the appellant, pursuant to s 66 of the 1987 Act, the sum of $20,350 in respect of 14% WPI resulting from injury on 6 September 2011.
Principal Member Bamber’s reasons for the first COD were that the second MAC had certified 13% WPI, comprising 6% WPI of the left lower extremity and 7% WPI of the right lower extremity. The parties had agreed that the appellant’s WPI as a result of scarring was 1% in relation to the injury on 6 September 2011. The combined total WPI was therefore 14% (6% of the left lower extremity; 7% of the right lower extremity; and 1% scarring).
On 27 March 2023, the appellant sought a reconsideration of the second MAC and revocation of the first COD. The application was made on the basis that there had been a deterioration in his condition, within the meaning of s 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The matter was referred to Member Burge to determine whether the first COD could be revoked, pursuant to s 57(1) of the Personal Injury Commission Act 2020 (the 2020 Act).
On 8 June 2023 Member Burge issued a COD (the second COD), in which he made the following orders:
“(a) The COD dated 14 September 2021 is revoked pursuant to s 57(1) of the 2020 Act;
(a) The matter is remitted to the President to determine:
(i)If at least one of the grounds for appeal specified in s 327(3) of the 1998 Act has been made out, and, if so
(ii)Whether the matter can be referred for further assessment of permanent impairment as an alternative to appeal as provided for by s 329(1) of the 1998 Act.”
On 15 June 2023, the appellant was directed to lodge and serve an Application to Appeal Against a Decision of Medical Assessor.
On 28 June 2023, the appellant lodged an Application to Appeal Against a Decision of Medical Assessor, on the following grounds:
(a) deterioration of the appellant’s condition that results in an increase in the degree of permanent impairment (s 327(3)(a) of the 1998 Act), and
(b) the availability of additional relevant information that was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against (s 327(3)(b) of the 1998 Act.)
On 13 July 2023, the respondent lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.
The Delegate of the President determined on 26 July 2023 that a ground of appeal pursuant to s 327(3)(a) of the 1998 Act was capable of being made out. She was satisfied that the appellant’s argument that his degree of permanent impairment had deteriorated since the last medical assessment was capable of being made out.
The Delegate therefore referred the appeal to a Medical Appeal Panel.
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 Procedural Direction PIC7.
The appellant did not request that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination, because the Appeal Panel found error. Because it found error, the Appeal Panel’s power to require a re-examination was enlivened. Absent a finding of error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the appellant to determine whether a ground of appeal has been made out: New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales.[1]
[1] [2013] NSWSC 1792.
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) Operation Summary of Dr Ozan Amir dated 27 October 2021;
(b) report of independent medical examiner Dr Sikhander Khan dated 24 May 2022, and
(c) appellant’s statement dated 18 December 2022.
The respondent conceded that the appellant had available additional and relevant information that was not available to him at the time of the assessment by Dr Meakin in June 2021 [sic: 25 May 2021].
The respondent submitted that, equally, it had a report from Dr John Bosanquet dated 30 September 2022 that also met the relevant test, and which it sought to be considered by the Appeal Panel.
The Appeal Panel determined that the fresh evidence of both the appellant and the respondent should be received on the appeal.
The evidence post-dates the second MAC and therefore was not evidence that was available to the parties before the medical assessment appealed against, nor could it reasonably have been obtained before that medical assessment. It is relevant to the determination of the appeal.
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.
In addition, the Appeal Panel has before it the fresh evidence of the appellant and the respondent referred to above.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a) the appellant’s bilateral lower extremities have deteriorated to a degree that indicates 18% WPI and therefore warrants a revocation of the COD certifying 14% WPI;
(b) the Court of Appeal determined in Riverina Pines Pty Ltd v Workers Compensation Commission [sic: Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors][2] “to the effect” that deterioration as used in s 327(3)(a) of the 1998 Act means a deterioration from the degree of permanent impairment certified by a MAC since the examination on which it was based, and
(c) the appellant’s submissions clearly satisfy ss 327(a) and (b) [sic: ss 327(3)(a) and (b)] of the 1998 Act.
[2] [2007] NSWCA 149.
The respondent’s submissions included the following:
(a) Dr Bosanquet, in his report dated 30 September 2020, assessed the appellant with 4% WPI, being 2% WPI for each of the right and left lower extremities (ankles). Based on this report, there had been no deterioration in the appellant’s condition.
(b) In the (second) MAC, Dr Meakin assessed WPI of 6% for the left lower extremity (ankle) and 7% for the right lower extremity (ankle).
(c) In his report dated 13 October 2020, Dr Khan assessed WPI of 7% for the left lower extremity (ankle), 7% for the right lower extremity (ankle) and 1% for scarring.
(d) In his report dated 24 May 2022, Dr Khan assessed WPI of 7% for the left lower extremity (ankle), 10% for the right lower extremity (ankle) and 2% for scarring.
(e) Comparing Dr Khan’s assessments, he did not assess any deterioration in terms of impairment of the left ankle and scarring to the left ankle. On that basis, the appeal should be confined to the right lower extremity (ankle) and scarring of the right ankle.
(f) The appellant did not make out the grounds of appeal under s 327(3) of the 1998 Act, the appeal should be dismissed, and the original MAC should be confirmed.
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 ground(s) of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[3] 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.
[3] [2006] NSWCA 284.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW[4]. The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
[4] [2008] NSWCA 116.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[5] Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
[5] [2013] SC 1792.
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, below.
Under “History relating to the injury”, at p 2 of the MAC the Medical Assessor said:
“Mr Valesini returned to see Dr Rizkallah on 10 July 2019 because of continuing discomfort in relation to his left and indeed his right heel at the site of the tendo Achilles insertion. He stated he had been receiving physiotherapy since late 2018 with no benefit and had received a cortisone injection into the right heel, again with no improvement. Dr Rizkallah ordered an ultrasound of the right tendo Achilles insertion, which he reported as unremarkable in a letter back to the local practitioner. Dr Rizkallah suggested a continued non-operative treatment course involving physiotherapy and anti-inflammatory medication. He suggested no more cortisone injections.”
Under “Present treatment”, at p 3 of the MAC, the Medical Assessor said:
“Mr Valesini is under no formal treatment at the present time and had not returned to work. He reports significant discomfort over the area of the right heel and a lesser discomfort relating to the left heel. He has recently been seen by independent medical specialists.”
Under “Findings on physical examination”, at p 3 of the MAC, the Medical Assessor said:
“All deep tendon reflexes in the right and left lower extremities are symmetrically present and equal. There are no abnormalities of tone or sensation. He has symmetrically equal right and left great toe power referencing flexion and extension and also subtalar joint eversion and inversion.
One notes the healed longitudinal scars over the anterior and anterolateral aspect of the left leg consistent with the cruciate ligament reconstructive surgery and the subsequent insertion of the intramedullary tibial nail. One notes that there is no asymmetrical wasting of the right or left calf measured at maximum circumference. One notes that the left thigh at 10 cm above the patella is 1.0 cm less than the right side, consistent with the previous history of significant knee surgery.
There is also a 5.0 cm scar over the posterolateral aspect of the left ankle consistent with the surgical intervention that had been performed by Dr Rizkallah. The scar is not tethered to the deeper structures and only minimally pigmented with some atrophic changes. The scar is less than 0.5 cm wide and is visible when not wearing a sock and when viewed posteriorly. Mr Valesini states, however, that he is conscious of the scar.
There is equal leg length on formal examination.
On visual inspection of the right and left lower extremities there is no significant swelling. There is a calcaneal bone boss associated with the right consistent with a Haglund’s deformity. This of course is not present on the left side, where there has been surgical removal. There appears to be no inflammatory change associated with the skin around the scar relating to the left ankle or indeed with the skin relating to the right ankle. As stated, there is no local heat or swelling.
Active range of motion of the right and left ankle and subtalar joint reveals the following:
Ankle
Right
Left
Dorsiflexion
10°
10°
Plantar Flexion
20°
20°
Eversion
10°
20°
Inversion
20°
20°
There is also noted to be a full range of right and left great and lesser toe movements symmetrically.
There were no other findings on examination.”
Under “summary of injuries and diagnoses” at p 5 of the MAC, the Medical Assessor wrote:
“Mr Valesini experienced discomfort relating to his left ankle and hind foot in approximately August 2011 during the course of his working duties with an accepted injury date of 6 September 2011. Because of non-improvement with conservative treatment he underwent surgical intervention under the care of Dr Sherif Rizkalleh, orthopaedic surgeon. Surgical intervention occurred on 8 March 2012. Although there was initial significant improvement of symptoms, according to both Mr Valesini and the letters from Dr Rizkalleh back to the referring doctor, such improvement did not last. There has been continued low grade deterioration since that time. Some months after the initial onset of symptoms there were also similar symptoms noted in the right posterior ankle area with a clinical and radiological diagnosis similar to that on the left side. There has been no surgical intervention on the right side. There has been assessment by a Dr Ozan Amir, podiatric surgeon, on 21 February 2020, who suggested that there should be consideration for surgical intervention on the right side. Mr Valesini has not been able to return to work.”
Under “Reasons for assessment” at p 6 of the MAC, the Medical Assessor wrote:
“a. Assessment of Impairment is performed with reference to the American Medical Association guides for the evaluation of permanent impairment, 5th Edition and the NSW Workers Compensation guidelines for the evaluation of permanent impairment, 4th Edition, which was reissued on 1 March 2021.
In making that assessment I have taken account of the following matters: -
b. An explanation of my calculations (if applicable)
Left & Right Lower Extremity (Ankle):
At the time of today’s assessment there is no limp relating to the left or right lower extremity and no leg length inequality. The significant surgical interventions relating to the left knee are the cause of the left thigh wasting. At the time of today’s assessment there is restriction of active range of motion of both the right and left ankle and subtalar joints. Therefore, with reference to Figures 17.11 and 17.12 AMA 5 and the current Work Cover Guidelines, the following lower extremity impairment is noted:
Ankle
Right
Lower Extremity Impairment
Left
Lower Extremity Impairment
Dorsiflexion
10°
7°
10°
7°
Plantar Flexion
20°
7°
20°
7°
Eversion
10°
2°
20°
0°
Inversion
20°
2°
20°
2°
Total
18%
16%
With reference to Table 17.3 AMA 5, an 18% lower extremity impairment equates with 7% whole person impairment, right lower extremity.
Again, with reference to Table 17.3 AMA 5, a 16% lower extremity impairment equates with 6% whole person impairment, left lower extremity.
It has been accepted that the right lower extremity injury is a consequential condition relating to the initial traumatic event to the left lower extremity on 6 September 2011.”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions, as well as the evidence referred to above.
The appellant submitted that there had been a deterioration in the degree of permanent impairment certified by a MAC since the examination on which it was based. The respondent submitted that Dr Khan did not assess any deterioration in terms of impairment of the left ankle and scarring to the left ankle. On that basis, the appeal should be confined to the right lower extremity (ankle) and scarring of the right ankle.
The Appeal Panel considered that there had been a deterioration in the appellant’s impairment, and therefore error had been established. It was considered necessary for the appellant to undergo a re-examination by a Medical Assessor member of the Appeal Panel.
Dr Tommasino Mastroianni of the Panel was requested to undertake a re-examination of the appellant. He undertook the examination and reported to the Panel as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL
Matter Number: M2-W705/21
Appellant: Daniel Valesini
Respondent: Startrack Express Pty Ltd
Date of Determination: 27 September 2023
Examination Conducted By: Dr Tommasino Mastroianni
Date of Examination: 27 September 2023
Attendance: Daniel Valesini
1. The worker’s medical history, where it differs from previous records.
The worker’s history differs from previous records of Assessor Ian Meakin’s Medical Assessment Certificate dated 3 June 2021. Since the Certificate was issued the claimant has had surgery by Dr Ozan Amir (Podiatric Surgeon).
2. Additional history since the original Medical Assessment Certificate was performed.
Mr Valesini had surgery for right insertional Achilles calcinosis on 27 October 2021.
3. Findings on clinical examination
The claimant walked normally with no limp. He dressed and undressed without any difficulty. He says the scar in the right heel hurts. On direct questioning he said that he is not really conscious of the scars as you can’t see them when he is wearing shoes and socks.
On formal examination his gait changed from a normal gait to a waddle, but as he leaves the examination room, his gait was again normal.
He was able to walk on his heels without difficulty, but has difficulty walking on his toes. He partially squats.
Examination of the heels reveals healed surgical scars. The left heel scar is more matured than the right heel scar.
There is a non-tender 5cm healed surgical scar over the left Achilles tendon. There is no obvious pigmentation, minor trophic changes, no suture marks and no tethering.
There is a 6cm scar over the right Achilles tendon. There are trophic changes, contour defect distally and some tethering. The scar is red/inflamed and tender in the middle 2/3rds.
The calves were measured and were of equal size.
Ankle and hindfoot movements were measured with a goniometer.
Dorsiflexion and plantar flexion were measured with the leg straight and the knee flexed at 45°. Dorsiflexion in both ankles was 5° with the knee extended and the knee flexed (average 5°). On the left side plantar flexion was 20° with the leg straight and 30° with the knee flexed (average of 25°). The right ankle had the same readings: 20° with leg straight and 30° with the knee flexed. The average readings for ankle extension and plantar flexion are recorded in the table.
Ankle and Hindfoot Movements
Movement
Right
% Lower Extremity Impairment
Left
% Lower Extremity Impairment
Extension
5°
7
5°
7
Plantar flexion
25°
0
25°
0
Inversion
10°
2
15°
2
Eversion
10°
2
10°
2
Total
11%
Total
11%
11% lower extremity impairment equates to 4% WPI (AMA 5, page 537, 17-11).
As a result of the restricted ankle and hindfoot movements I assess 4% WPI for the left lower extremity and 4% WPI for the right lower extremity.
Under the best-fit principle of the TEMSKI classification the claimant best fits the descriptors for 1% WPI.
The claimant is not conscious of the scars. Some parts of the scars have colour contrast with the surrounding skin, the claimant is able to locate the scars, there are minimal trophic changes but no suture marks are visible. The location of the scars is not usually visible with usual clothing, there is minor contour defect, and negligible effect on ADLs. No treatment is required and there is some adherence.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.”
Therefore, the Appeal Panel agreed with the Medical Assessor that the appellant had 4% WPI for the left lower extremity; 4% WPI for the right lower extremity; and 1% WPI for TEMSKI scarring, resulting in a total of 9% WPI.
Scarring as the result of an injury is assessed under the body part “Skin” and rated as 0% to 4% under TEMSKI. Dr Khan used incorrect methodology in assessing each of the appellant’s scars separately, and then adding the assessments.
The Medical Assessor assessed both the appellant’s left lower extremity (ankle) and right lower extremity (ankle). Based on his findings, there had been an improvement in the appellant’s impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 June 2021
should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W705/21 |
Applicant: | Daniel Valesini |
Respondent: | Startrack Express Pty Ltd |
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 Ian L Meakin 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Left lower extremity (ankle) | 6/09/2011 | AMA %, Chapter 17 page 537, Table 17-11 | 4 | 0 | 4 | |
| 2. Right lower extremity (ankle) | AMA 5, Chapter 17 page 537, Table 17-11 | 4 | 0 | 4 | ||
| 3. TEMSKI Scarring | 6/09/2011 | AMA 5, Chapter 8, NSW workers compensation guidelines for the evaluation of permanent impairment. Fourth edition, Chapter 14, Table 14.1 | 1 | 0 | 1 | |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
0
4
0