Water Brothers Plumbing Pty Ltd v Toseski

[2023] NSWPICMP 28

DETERMINATION OF APPEAL PANEL
CITATION:	Water Brothers Plumbing Pty Ltd v Toseski [2023] NSWPICMP 28
APPELLANT:	Water Brothers Plumbing Pty Ltd
RESPONDENT:	Zoran Toseski
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Brian Stephenson
DATE OF DECISION:	31 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Injury to left foot and consequential condition in right wrist; error in percentage attributable to eversion of left ankle corrected; employer argued that Medical Assessor (MA) should not have assessed a peripheral nerve injury not specifically referred to him, relying on Skates v Hills Industries Ltd; MA was required to assess the worker as he presented, including any sensory loss resulting from the injury to the body part referred; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 15 September 2022 Water Brothers Plumbing Pty Ltd (Water Brothers) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 August 2022. An amended MAC was issued bearing the same date.

2. Water Brothers relied on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.

3. The President’s delegate was satisfied that, on the face of the application, the ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.

4. The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Mr Toseski suffered an injury to his left foot on 7 May 2020 when he was asked to drive an excavator off a tipper truck. When the truck rolled forward, he feared for his safety and jumped off the excavator, landing on the ground. He underwent left calcaneal open reduction and internal fixation with bone grafting.

2. On 7 October 2021 his left foot gave way while down stairs at home. He tried to break his fall with his right hand and suffered right distal radius and ulnar fractures which required open reduction and internal fixation.

3. At a preliminary conference on 27 July 2022, the parties agreed on amendments to the Application to Resolve a Dispute and the matter was remitted to the President for referral to a Medical Assessor. The form of the referral was amended twice before the examination by the Medical Assessor on 1 August 2022. On that date he assessed Mr Toseski’s left lower extremity (foot and ankle), assessing 7% whole person impairment (WPI).

4. The referral was then amended again on 9 August 2022 to include an assessment for scarring and in respect of Mr Toseski’s right upper extremity (wrist). The Medical Assessor saw Mr Toseski again on 15 August, assessing 8% WPI in respect of his right wrist and 1% WPI for scarring.

5. There is no appeal with respect to the assessment of scarring under the Table for the Evaluation of Minor Skin Impairment (TEMSKI).

PRELIMINARY REVIEW

1. We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.

2. As a result of that preliminary review, we determined that the worker should undergo a further medical examination. For reasons set out below, we consider that it was open to the Medical Assessor to assess Mr Toseski’s right wrist in respect of a peripheral nerve injury but discrepancies in the history and his failure to include the reasoning he used to reach the assessment was an error. The lack of reasoning means that it was not possible to determine if his assessment was correct.

3. Dr Mastroianni conducted an examination of the worker on 19 January 2023. His report is attached to these reasons.

EVIDENCE

1. We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.

2. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but we have been considered them.

2. In summary and in submissions prepared by its solicitor, Mr Elder, Water Brothers submitted that the MAC contained demonstrable errors with respect to the calculation of the range of movement of Mr Tosevski’s left foot and in the inclusion of an assessment of a peripheral nerve (median nerve) of his right wrist, which was not within the ambit of the medical dispute between the parties.

3. With respect to the left lower extremity, Water Brothers submitted that the correct calculation for 0° range of motion for eversion of the left ankle is 2% under Table 17-12 of AMA 5 and not 5% as recorded by the Medical Assessor.

4. Water Brothers said that Mr Toseski did not claim permanent impairment as a result of peripheral nerve injury to his right wrist and that injury was not part of the medical dispute referred to the Medical Assessor, citing Skates v Hills Industries Ltd[1] where Leeming JA said:

   “The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.

   …

   The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”

   [1] [2021] NSWCA 142 at [44] and [46].

5. Water Brothers said that the claim for permanent impairment compensation was limited to the components of the assessment made by Dr Gehr on whose report Mr Toseski relied. It said that the claim with respect to Mr Toseski’s right wrist was limited was limited to an assessment of a right wrist fracture resulting in impairment due to the restricted range of motion.

6. Water Brothers said that the appropriate assessment was 12% lower extremity impairment (LEI) or 7% WPI with respect to Mr Toseski’s left ankle and 6% upper extremity impairment (UEI) or 4% WPI in respect of his right wrist, resulting in a combined assessment of 10% WPI.

7. In reply, Mr Toseski submitted (in submissions prepared by his solicitor Mr Glamcevski) that the Medical Assessor did not err in the assessment of his left ankle, assessing 5% LEI for a “moderate and severe” impairment under Table 17-12.

8. With respect to his right wrist, Mr Toseski said that the assessment of a peripheral nerve injury was within the scope of the further amended referral to the Medical Assessor.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan[2] 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.

   [2] [2006] NSWCA 284.

Left ankle

1. The Medical Assessor assessed the active range of motion of each of Mr Toseski’s ankles and set out his findings:

   “The active range of motion of his right ankle is:

Movement (right ankle)	Range °	Lower extremity impairment %
Dorsiflexion	20	0
Plantar flexion	50	0
Inversion	30	0
Eversion	10	2

2% impairment lower extremity.

The active range of motion of his left ankle is:

Movement (left ankle)	Range °	Lower extremity impairment %
Dorsiflexion	0	7
Plantar flexion	30	0
Inversion	0	5
Eversion	0	5

17% impairment lower extremity.”

1. The Medical Assessor described his examination:

   “The left tarsal tunnel was asymptomatic in terms of repeated direct pressure with negative Tinel’s sign.

   The active range of motion of his toes are all normal and equal on both feet with no signs of impingement. The tibialis posterior, tibialis anterior, and peroneal tendons of his left ankle show no sign of impingement, swelling or tenderness.

   There is a 6cm well-healed, non-adherent, barely visible surgical scar on the lateral aspect of the left ankle.

   There was a weakly positive Tinel’s sign over the sural nerve with markedly decreased almost absent sensation to pin prick in the distribution of that nerve.

   The medial and lateral plantar nerves were intact in terms of their motor and sensory function.

   The wear pattern on the soles of his feet are normal and the same.

   The colour and temperature of both feet and ankles was the same and there was no trophic changes affecting the hairs or the nail beds. There was no passive movement restriction or symptoms involving the small joints of the toes, nor was there any swelling of the soft tissues around or adjacent to the site of injury.”

2. The Medical Assessor’s explained his calculations:

   “The lower extremity was assessed as per Chapter 17, AMA 5 Guides with reference to Tables 17.1 and 17.2 on page 525 and 526 respectively.

   The current Workcover Guides direct the Assessor to utilise that methodological paradigm which produces the greatest WPI. On this occasion, noting that there were several diagnostic entities including muscle atrophy, peripheral nerve injury, and restricted range of motion, these were applied to Table 17.2.

   On this occasion, the restricted active range of motion was able to be combined with the peripheral nerve injury but the muscle atrophy was not able to be applied.

   I did consider other diagnostic entities including Complex Regional Pain Syndrome, but the clinical requirements to satisfy that definition as per the criteria on page 80 and 81, of the current guidelines, were absent.

   Based upon the range of motion methodology, Table 17.12 and 17.11 of the Guides were utilised. A deduction of 2% lower extremity impairment was made on the basis that there was some restriction of active eversion affecting the right uninjured foot. The sural nerve sensory deficit was assessed with reference to Table 17.37 on page 552 of the Guides.”

3. His calculations are set out in tabular form:

   “Chapter 17

   Ankle - Table 17.12,

   Page 537

   Table 17.11, Page 537

   7% + 10% = 17%LEI

   minus 2%LEI = 15%LEI

   Sural nerve – Table

   17.37, page 552 = 2%LEI

   15%LEI c 2%LEI =

   17%LEI = 7%WPI”

4. The Medical Assessor used Tables 17-11 and 17-12 to convert the range of motion to LEI. His calculation with respect to eversion of Mr Toseski’s right foot is correct.

5. Using Table 17-11, 0° of dorsiflexion (described in AMA 5 as extension) falls into the mild range and results in 7% LEI and 30° of plantar flexion does not result in any LEI. Under Table 17-12 0° of inversion falls into the moderate to severe range resulting in 5% LEI. The Medical Assessor measured 0° of eversion which he said resulted in 5% LEI. That is incorrect because Table 17-12 provides that a range of 0 to 10° of eversion results in a mild impairment and LEI of 2%. It was not open to the Medical Assessor to assess Mr Toseski as having moderate to severe impairment, as Mr Toseski submitted, because the table does not allow for it.

6. The correct calculation is to add 5% and 2% from Table 17-12 to 7% from Table 17-11 resulting in 14% LEI. From that sum, 2% is deducted to take account of limited eversion of Mr Toseski’s contralateral ankle, resulting in 12% LEI. That figure is combined with 2% from Table 17-37 for sensory loss in the distribution of the sural nerve, resulting in 14% LEI which converts to 6% WPI under Table 17-3.

7. Water Brother’s calculation of 12% LEI and 5% WPI was incorrect because it omitted the 2% LEI in respect of the sensory loss in the distribution of the sural nerve, in respect of which it did not make submissions.

Right wrist

1. In Skates, the worker suffered a fractured left wrist and an injury to his left ring finger. An Approved Medical Specialist (AMS), as Medical Assessors then were, concluded that Mr Skates’ whole left arm had become functionally useless and assessed 61% WPI, based on a diagnosis of complex regional pain syndrome, plus 1% for scarring. An appeal panel set aside the MAC and assessed 7% WPI I respect of the left ring finger and scarring. An application for judicial review and an application for leave to appeal followed. The decision of the Court of Appeal highlights a series of procedural errors, including that “inexplicably” Mr Skates’ left wrist was omitted from the referral and not raised by either party.

2. Mr Skates argued that the scope of the referral should not be limited to the body parts set out in the referral to the AMS and that it was appropriate for the AMS to assess the whole of his upper extremity. Basten JA said that argument should be rejected because the claim was made by reference to an injury to the left wrist, ring finger and scarring, accompanied by medical reports which supported a claim for permanent impairment in respect of those body parts and it was that claim which was referred to the AMS, requiring assessment in accordance with AMA 5 and the Guidelines.

3. Leeming JA said that he agreed with Basten JA and added further comments by way of emphasis. Water Brothers’ submissions omit the paragraph in which His Honour described the relevant medical dispute, being with respect to Mr Skates’ “left upper limb (wrist, ring finger)”. In that context, Leeming JA said that the dispute was crystallised by the correspondence and determined that the AMS had gone beyond the dispute referred to him in assessing the whole of Mr Skates’ left upper extremity.

4. The dispute referred to the Medical Assessor about the WPI of Mr Toseski’s included “right upper extremity (wrist).” Dr Gehr assessed Mr Toseski at the request of his solicitors on 13 January 2022. Dr Quain initially assessed him at the request of Water Brothers on 9 September 2021 before the fall which resulted in a consequential condition in his right wrist. He assessed Mr Toseski again on 7 March 2022 and did not consider that maximum medical improvement had been reached. He therefore did not assess WPI in respect of Mr Toseski’s right upper extremity.

5. The decision in Skates does not support Water Brothers’ argument that the dispute did not include assessment of a peripheral nerve injury in Mr Toseski’s right wrist. The dispute referred was with respect to the degree of permanent impairment resulting from the condition in his right wrist. That is the medical dispute within the meaning of s 319 (c) of the 1998 Act and what the Medical Assessor was required to assess by using AMA 5 and the Guidelines. The Medical Assessor was required to consider all of the components which might be relevant to the assessment and to assess Mr Toseski as he presented on the day of the examination.[3] In practice, the latter requirement will often result in a different assessment to that made by the parties’ independent medical examiners.

   [3] Guidelines paragraph 1.6.

6. In the same way that assessment of Mr Toseski’s left ankle included assessment of the peripheral nerves, the Medical Assessor was required to test any sensory impairment resulting from the injury and include that impairment in his assessment.

7. The Medical Assessor described Mr Toseski’s symptoms:

   “He describes his right wrist as feeling stiff and aching and he is concerned about the persisting numbness in the very tips of his middle and ring fingers.”

8. On examination the Medical Assessor noted:

   “There is some very minor decreased sensation in the tips of his ring and little fingers, it is mainly with light touch and to a lesser extent pin prick but, he does get a positive Tinel’s sign when the median nerve at the wrist is challenged.”

9. In respect of his assessment the Medical Assessor said:

   “The right upper extremity was assessed as per Chapter 16 of AMA 5 Guides with reference to the Chapters 1 to 10.

   The clinical signs were referred to the paradigm of the active range of motion and peripheral nerve deficits.

   These two paradigm assessments were combined.”

10. The Medical Assessor noted that Dr Gehr did not mention Mr Toseski’s sensory complaints to the tips of the right ring and middle finger.

11. The calculations read:

    “Chapter 2 Page 13 Page 469, 467, 474

    Figure 16.31, 16,28 & 16.37

    - 6%IUE

    Chapter 16 Peripheral nerve – Table 16.15, page 492 – 7%IUE [sic – UEI]

    7% c 6% =

    13%IUE = 8%WPI”

12. There is an inconsistency in the findings recorded by the Medical Assessor. He recorded complaints of numbness in Mr Toseski’s ring and middle fingers (median nerve) then later his ring and little fingers (ulnar nerve). He said that Tinel’s sign was positive when the median nerve was challenged. However the assessment of 7% is that applicable under Table 16-15 to the ulnar nerve, not the median nerve. The Medical Assessor did not say that he had graded the impairment under Table 16-10 of AMA 5.

13. Dr Mastroianni noted that Mr Toseski suffered sensory deficit in the distribution of the ulnar nerve and we adopt his findings. The range of movement he measured was consistent with that measured by the Medical Assessor.

14. The Medical Assessor’s assessment of 6% UEI with respect to the range of movement of Mr Toseski’s right wrist is appropriate. Table 16-15 provides an assessment of 7% UEI in respect of sensory impairment of the ulnar nerve below the midforearm. Using Table 16-10 and assessing the sensory loss as grade 2 results in 6% UEI (7 x 80%, rounded up). Those figures combine to 12% UEI which converts to 7% WPI.

15. Combining 6% in respect of Mr Toseski’s left lower extremity, 7% in respect of his right upper extremity and 1% for scarring results in 14% WPI.

16. For these reasons, we have determined that the MAC issued on 18 August 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter No:   M1-W3575/22

Appellant:   Water Bros Plumbing Pty Ltd

Respondent:   Zoran TOSESKI

Date of Determination: 24 October 2022

Examination Conducted By:

Tommasino Mastroianni

Date of Examination:

Attendance: 

19 January 2023

Zoran Toseski

1. The workers medical history, where it differs from previous records.

Not applicable.

1. Additional history since the original Medical Assessment Certificate was performed.

Not applicable.

1. Findings on clinical examination

There is a healed 6cm surgical scar on the volar aspect of the right distal forearm.

There is hypoaesthesia on the radial and ulnar aspect of the fifth digit and the ulnar aspect of the ring finger.

Tinel’s sign was positive for the ulnar nerve over Guyon’s canal causing tingling at the tips of the ring and little finger. Tinel’s sign for median nerve entrapment neuropathy was negative when palpating the wrist. Phalen’s sign for carpal tunnel syndrome was also negative.

I assess grade 2 sensory deficit (61%-80%) AMA 5 page 482 Table 16.10. Guided by the persistent symptoms of numbness and tingling in the ring and little finger and my clinical findings I assess 80% sensory loss.

Sensory deficit of the ulnar nerve below the mid-forearm equates to 7% upper extremity impairment (AMA 5, page 492, table 16-15).

80% of 7% = 5.6% which rounds off to 6%.

Right wrist movements were restricted.

Right Wrist Movements	Range	% Upper Extremity Impairment
Dorsiflexion	40°	4
Palmar flexion	60°	0
Radial deviation	10°	2
Ulnar deviation	30°	0
Total	6%

(AMA 5, pages 467 to 469, figures 16-28 and 16-31).

6% upper extremity impairment for ulnar nerve sensory deficit + 6% for ROM = 12% UEI which equates to 7% WPI.

1. Results of any additional investigations since the original Medical Assessment Certificate

Not applicable.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W3575/22
Applicant:	Zoran Toseski
Respondent:	Water Brothers Plumbing 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 Dr Peter Giblin 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)
Left lower extremity (foot & ankle)	7.5.2020	Chapter 3 p 16	Chapter 17, Table 17-11 and 17-12 p 537 Table 17-37 p 552	6%	0	6%
Right upper extremity (wrist)	7.5.20	Chapter 2 p 13	Chapter 16 figure 16.31 p 469, 16.28 p 467 & 16.37 p 473; Table 16-15 p 492 and Table 16-10 p 482.	7%	0	7%
Scarring – TEMSKI	7.5.20	Chapter 14, p74	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					14%