Vesovski v Flat Glass Industries Ltd
[2021] NSWPICMP 33
•23 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Vesovski v Flat Glass Industries Ltd [2021] NSWPICMP 33 |
| APPELLANT: | Trajce Vesovski |
| RESPONDENT: | Flat Glass Industries Ltd |
| Appeal Panel: | Principal Member John Harris Dr David Crocker Dr James Bodel |
| DATE OF DECISION: | 23 March 2021 |
| catchwords: | WORKERS COMPENSATION- Appellant suffered a left shoulder injury which required surgery with resultant portal scars; AMS assessed 14% for two body parts (upper extremity and hypertension) and 0% for the scars; the appeal submissions were limited to the assessment made by the AMS of 0% for the scars; Held- the AMS made findings on the characteristics of the scars which fell within the criteria for 0% WPI; the issue of whether one of the scars was “quite visible”, as the appellant submitted, or “barely visible”, as the AMS found, was a matter of clinical judgement; the finding by the AMS was consistent with the photograph; no demonstrable error had been established; Vannini v Worldwide Demolitions Pty Ltd applied; the appellant’s submission that the AMS had misapplied paragraph 14.6 of the fourth edition guidelines was also rejected; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
Mr Trajce Vesovski (the appellant) suffered an accepted injury to the left shoulder in the course of employment with Flat Glass Industries Ltd (the respondent) on 18 April 2017.
A claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made by letter dated 2 June 2020.[1] The s 66 claim was based on the reports of Dr Gehr dated 12 May 2020[2] and Dr Herman, Cardiologist dated 30 March 2020.[3]
[1] Application to Resolve a Dispute (Application), p 9.
[2] Application, p 12.
[3] Application, p 24.
Dr Gehr assessed the appellant impairment of the left upper extremity at 11% whole person impairment (WPI) and the skin at 2% WPI. Dr Herman provided an assessment in relation to the hypertension.
Dr Breit, Orthopaedic Surgeon, was qualified by the respondent and provided a report dated 14 July 2020.[4] Dr Breit assessed the appellant at 7% WPI for the left shoulder and 0% for the scar.
[4] Reply p 1.
By letter dated 23 July 2020 the respondent denied that the hypertension was secondary or consequential to the work injury. It also disputed the level of permanent impairment.
The liability issue was listed before a Commission Arbitrator who determined that the hypertension was consequential to the accepted left shoulder injury.[5]
[5] Vesovski v Flat Glass Industries Ltd [2020] NSWWCC 408.
The Registrar then referred the medical dispute to Dr Mark Burns, an Approved Medical Specialist (AMS).
The AMS examined the appellant and provided the Medical Assessment Certificate dated 25 January 2021 (the MAC). The AMS assessed the appellant as suffering from 4% WPI for the left upper extremity, 10% WPI for hypertension and 0% WPI for the scar. The combined assessment was 14% WPI.
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[6] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[7]
[6] The 4th edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998.
[7] Clause 1.1 of the fourth edition guidelines.
THE APPEAL
On 15 February 2021, the appellant filed an Application to Appeal Against a Medical Assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission).
The WorkCover Medical Assessment Guidelines (the Guidelines) set out the practice and procedure in relation to appeals to Medical Appeal Panels under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The appellant claims that the medical assessment of the scar should be reviewed on the ground that the MAC contains a demonstrable error and/or the assessment was made on the basis of incorrect criteria within the meaning of s 327(3) of the 1998 Act. No submissions were directed to establishing error in the assessment of the left upper extremity and/or the hypertension.
The Appeal was filed within 28 days of the date of the MAC. The submissions in support of the grounds of appeal are referred to later in these Reasons.
The Appeal attached a supplementary report of Dr Gehr dated 6 February 2021. No application was made to admit the report. No reference was made to either s 327(3)(b) or s 328(3) and it is otherwise unclear on what basis the report is admissible.
Insofar as the appeal contests the assessment of the scars, the supplementary opinion of Dr Gehr notes the difference between his opinion and that provided by the AMS differs “in how either of us described the scar”.
Beside the fact that the appellant did not make relevant submissions as to admissibility, the report does not have any particularly probative value as to how the AMS erred in making the assessment of 0% WPI for the scars.
PRELIMINARY REVIEW
The Appeal Panel (AP) conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. As a result of that preliminary review, the AP determined, for the reasons provided subsequently, that no ground of appeal had been established.
The AP is now constituted as part of the Personal Injury Commission although the appeal was filed when the AMS issued his decision in the Workers Compensation Commission.
EVIDENCE
The AP has before it all the documents that were sent to the AMS for the original assessment and has referred to portions of the evidence and taken them into account in making this determination.
Dr Gehr provided a report dated 12 May 2020 following an examination conducted on video on that day. The doctor noted the appellant underwent left shoulder surgery on 30 October 2017.
Dr Gehr noted the scars arose from arthroscopic portals and described the scar in the following terms:[8]
“From WorkCover Guidelines, page 74, table 14.1, using TEMSKI, he is conscious of the scar, noticeable colour contrast, able to easily locate it, suture marks apparent, minor limitation of ADLs, no treatment plan, no adherence.”
[8] Application, p 20.
Dr Breit examined the appellant in July 2020. The doctor stated:[9]
“Contrary to the report by Dr Gehr (aka Dr Sherry) the arthroscopy portal scars are barely visible; they do not cause him any concern, nor do they in any way interfere with ADLs. I have attached a photo.”
[9] Reply, p 3.
The coloured photograph attached to the appellant’s submissions shows a barely visible scar on the anterior portion of the left shoulder with good colour contrast.[10]
[10] The AP notes that the photograph depicts what appears to be the right shoulder. As the photograph has been submitted by the appellant, we assume that there has been an inversion when the photograph was taken and that it accurately represents the left shoulder.
RELEVANT FINDINGS BY THE AMS
The AMS made the following examination findings on the scars.[11]
“Mr Vesovski had difficulty in finding the 3 portal scars, which were over his left shoulder. This was because the scars were barely visible. The anterior scar was 2.5cms in length and had a good colour contrast with the surrounding skin. This was the scar that he was able to localise himself. There was no evidence of contour defect and barely visible suture marks. The scar would have been difficult to see wearing normal clothing even if he was at the beach. It was not attached to the underlying structures and had no impact on his activities of daily living. He reported that the scar required no treatment.
Slightly lateral to the anterior scar was a further portal scar of approximately 1.5cms. A third portal scar was noted over the posterior aspect of the left shoulder and was also 1.5cms. Both of these scars would not have been visible wearing normal clothing and were difficult to find even when looking for them. Mr Vesovski was not particularly conscious of any of the scars and could not localise these 2 scars.”[11] MAC, p 4.
The AMS provided further reasons of his assessment when he referred to the opinion expressed by Dr Gehr. Relevantly the AMS started:[12]
“I note the Independent Medical Examination report of Dr Gehr, Orthopaedic Surgeon dated 12 May 2020…. I note that Dr Gehr also found that he had significant scarring, which was not present at today’s consultation. He is no longer conscious of the arthroscopic scars over his left shoulder and in fact was unable to localise 2 of them. Suture marks were not apparent on today’s examination and there was no limitation by the scars on activities of daily living. No treatment was required and there was no adherence. Certainly, under neither the TEMSKI table nor Paragraph 14.6 of the New South Wales Compensation Guidelines (4th Edition) would he have any assessable impairment for scarring.”
[12] MAC, p 6.
The AMS otherwise stated that he agreed with Dr Breit’s opinion that there was no assessable impairment for scarring.[13]
[13] MAC, p 6.
GROUND OF APPEAL
Appellant’s submissions
The appellant referred to the findings made by the AMS and submitted that they were “contradictory”. He submitted:[14]
“Initially he says that the claimant ‘had difficulty finding the 3 portal scars’ but from what he says further down it seems that he was able to locate the anterior scar but ‘could not localize these two scars’ referring to the two smaller scars. It is not surprising that he could not localize one of these scars, as he could not see it as it was on the posterior aspect of his shoulder.”
[14] Appellant’s submissions, G(b).
The appellant submitted that the AMS’s description of the anterior scar was wrong as it was “quite visible”. The AMS erred in finding that the scars were almost invisible, and the appellant could not locate the scars.
The appellant further submitted that the AMS had “misconstrued the effect of paragraph 14.6 of the Guidelines”. It was submitted that the paragraph only restates the TEMSKI scale and that a surgical scar can have a 0% assessment but “does not say that a surgical scar cannot have a percentage rating”.
It was submitted that the correct assessment is 1% WPI under the TEMSKI scale.
Respondent’s submissions
The respondent submitted that the comments of the AMS were not contradictory. When read in context the comments can be interpreted as “saying that the worker had difficulty locating the scars generally but was able to locate one of these scars.”[15]
[15] Respondent’s submissions, paragraph 13.
The respondent submitted that the assessment of the scar is a “best fit”. On the basis of the photograph and the findings by the MAS, the assessment of 0% WPI is appropriate and represents the best fit. Furthermore, the opinion of Dr Gehr was provided in May 2020 and does not represent the clinical position as the appellant presented to the AMS.
The AMS did not misconstrue paragraph 14.6 of the fourth edition guidelines as he did not say that the scar cannot have a permanent impairment rating. The respondent submitted:
“At Part 10(b) of the MAC the AMS clearly says the best fit for the Appellant’s scar in accordance with TEMSKI is 0% WPI. The only reference to paragraph 14.6 of the Guidelines is to say that they are uncomplicated surgical scars and so would not of themselves rate as an impairment. This is clearly in keeping with paragraph 14.6 and the TEMSKI scale.”
The respondent referred to the decision of Malpass AJA in Mahenthirarasa v State Rail Authority of New South Wales[16] where his Honour stated that a difference of opinion did not amount to a demonstrable error. In UGL Rail Services Pty Ltd v Attard[17] (Attard) Davies J expressed similar views when his Honour stated that matters of clinical judgment “ought not be cavilled with”.
[16] [2007] NSWSC 22.
[17] [2016] NSWSC 911 at [41].
The respondent submitted that the appellant has failed to establish a demonstrable error. The AMS is obliged to assess the appellant using his clinical judgement and is not obliged to accept the opinions of qualified doctors.
Reasons
Table 14.1 of the fourth edition guidelines sets out the criteria for the assessment of minor skin impairment known as TEMSKI. The range of assessment is from 0% WPI to 9% WPI. The relevant tables for minor skin impairment assessed at either 0%, 1% or 2% is as follows:
The note to Table 14.1 provides:
“This table uses the principle of ‘best fit’. You should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (describes) the impairment. Refer to 14.8 regarding the application of this table.”
Paragraph 14.8 of the fourth edition guidelines provides:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chose category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.”
The AMS made a number of findings that were not the subject of contest in the appeal submissions. Those findings were:
(a) the scar had no contour defect;
(b) barely visible suture marks;
(c) good colour contrast;
(d) no attachment to the underlying structures;
(e) no impact on his activities of daily living;
(f) the scar required no treatment, and
(g) the scar would have been difficult to see wearing normal clothing even if he was at the beach.
These findings are all consistent with the photograph relied upon by the appellant.
The glossary to AMA 5 provides an inclusionary definition to the meaning of “Activities of Daily Living”.[18] The definition relates to several distinct activities and includes the matters set out in Table 1-2 of AMA 5. Indeed the “Principles of Assessment” in paragraph 8.1 of AMA 5 direct the medical assessor to the Glossary which refers to the definition of common terms and Table 1-2.[19]
[18] AMA 5, p 599.
[19] AMA 5, p 174.
Dr Gehr opined that the scars caused a “minor limitation of ADLs” without providing any reasoning behind this conclusion. There is no medical basis to conclude that these scars would have any effect on the activities of daily living.
There is reference by the AMS to three scars. The AMS stated that two of the scars “would not have been visible wearing normal clothing and were difficult to find even when looking for them.” He also stated that the appellant “could not localise these 2 scars”.
The appellant’s submission that he was unable to locate one of the scars because it was on the posterior aspect of the shoulder does not detract from the finding made by the AMS that these two scars were “difficult to find even when looking for them”. Whilst that finding was contested by the appellant, there is no proper basis to support its argument that those two scars were clearly visible.
On the findings made by the AMS, those two scars do not satisfy any of the criteria for an assessment other than 0% WPI.
The appellant was able to locate a third scar when he was assessed by the AMS and this scar is seen in the photograph. However, we do not accept the appellant’s submission that the reasoning provided by the AMS was “contradictory”. We accept the respondent’s submissions articulated at paragraph 31 herein and do not accept that the AMS’s reasons were contradictory.
The nature of the appellant’s submission that the language used by the AMS was “contradictory” also raises the need for caution in the terms expressed by Mason P in Marina Pitsonis v Registrar of the Workers Compensation Commission when his Honour stated:[20]
“The reasons of an administrative decision-maker (especially one who is not a judge) are not to be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ (see Minister for Immigration and Ethnic Affairs v Wu(1996) 185 CLR 259 at 271-2, approving Collector of Customs v Pozzolanic(1993) FCR 280 at 287). A court should exercise restraint lest it mistakes looseness in language for errors of substance.”
[20] [2008] NSWCA 88; McColl JA and Bell JA (as their Honours then were) agreeing at [31].
Similar observations were made by Handley AJA in Lukacevic v Coates Hire Operations Pty Limited[21] and recently by the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd (Vannini).[22]
[21] [2011] NSWCA 112 at [107], Hodgson JA agreeing.
[22] [2018 NSWCA 324 at [1], [94] and [113]
The appellant also disputed the adjective used by the AMS in describing the third scar as “barely visible”. The appellant submitted that the anterior scar was “quite visible”.[23]
[23] Appellant’s submissions, paragraph G(c).
The AMS is entitled to use his clinical judgement in describing the scar. The opinion expressed by the AMS was otherwise consistent with the photograph and the fact that there was “good colour contrast with the surrounding skin”.[24]
[24] MAC p 4.
The concept of “demonstrable error” was discussed by the Court of Appeal in Vannini where Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales[25] a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[26]
[25] [2008] NSWCA 101.
[26] Vannini at [86].
The “pre-eminence of the clinical observations” was emphasised in Ferguson v State of New South Wales[27] when Campbell J referred with approval to NSW Police Force v Daniel Wark[28]. These observations are taken from the principles set out in clause 1.6 of the fourth edition guidelines. They are also consistent with the observations in Attard.
[27] [2017] NSWSC 887 at [23].
[28] [2012] NSWWCCMA 36 at [33].
In Parker v Select Civil Pty Ltd[29] Harrison AsJ also applied these observations when analysing whether an Appeal Panel lawfully allowed an appeal by substituting its finding of class 2 for a finding of class 3 made by the AMS for one of the PIRS categories. Her Honour stated:[30]
“It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error.”
[29] [2018] NSWSC 140.
[30] At [71].
Whilst these decisions relate to the assessment of different classes for the various PIRS scales, they have similar application to a particular assessment under TEMSKI because the medical assessor is required to apply the principle of best fit. Having examined the photographs, we agree with the observations made by the AMS.
As a general proposition many scars have characteristics that fall within different assessments under TEMSKI.
In the present case the findings made by the AMS as set out at paragraph 39 herein fall within 0% WPI. Even adopting the adjective used by the appellant of the description of the scar that it is “quite visible”, something which we do not accept, there remains the fact that the scars’ characteristics principally falls within those matters set out under 0% WPI. It was clearly open for the AMS based on the overall characteristics to find that the best fit for the scars was 0% WPI. For these reasons we do not accept that the finding by the AMS of 0% WPI for the scars is either a demonstrable error or the application of incorrect criteria.
The appellant otherwise submitted that the AMS had misapplied paragraph 14.6 of the fourth edition guidelines which provides:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for surgical procedures do not, of themselves, rate an impairment.”
The AMS did not misapply paragraph 14.6 of the fourth edition guidelines. After stating that the “best fit” was 0% WPI, the AMS then “additionally” noted that the three “almost invisible portal scars would be uncomplicated scars for standard surgical procedures”.[31]
[31] MAC, p 5.
The AMS did not suggest, as the appellant suggested, that “a surgical scar cannot have a percentage rating”.[32] The AMS made findings consistent with the TEMSKI criteria and found that on a best fit basis the scars were assessed at 0% WPI. He then correctly applied paragraph 14.6 and independently noted that “uncomplicated scars” from standard surgical procedures do not rate an impairment.
[32] Appellant’s submissions, paragraph G(d).
There is no application of incorrect criteria in the way the AMS assessed the scars and how he referred to paragraph 14.6 of the fourth edition guidelines.
We reject the appellant’s grounds of appeal.
DECISION
The MAC is confirmed.
John Harris
Principal Member
Dr David Crocker
Medical Assessor
Dr James Bodel
Medical Assessor
23 March 2021
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