Willis v Bomack Holdings Co Pty Ltd
[2022] NSWPICMP 473
•21 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Willis v Bomack Holdings Co Pty Ltd [2022] NSWPICMP 473 |
| APPELLANT: | Richard John Willis |
| RESPONDENT: | Bomack Holdings Co Pty Limited |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Frank Bors |
| MEDICAL ASSESSOR: | Ian Wechsler |
| DATE OF DECISION: | 21 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Assessment of loss of sight under the table of disabilities following an injury to the right eye on 1 July 1994; Medical Assessor (MA) assessed 70% loss of vision of the right eye and then deducted 40% that being the monetary value in the Table of Disabilities for loss of sight of one eye; Held –Panel agreed that MA erred in making that deduction; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 September 2022 Richard John Willis (Mr Willis) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Steiner, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 August 2022.
The respondent to the appeal is Bomack Holdings Co Pty Limited (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, 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 is conducted in accordance with the Table of Disabilities.
RELEVANT FACTUAL BACKGROUND
Mr Willis sustained an injury, namely, loss of vision in his right eye, on 1 July 1994 when he was sharpening tools on a large disc and foreign bodies went into the right side of his face and in his right eye.
Mr Willis was paid lump sum compensation for 50% loss of vision in the right eye in proceedings in the Compensation Court of New South Wales in Matter No 4397/2002.
In a Complying Agreement, dated 29 November 2011, Mr Willis was paid compensation for an additional 5% loss of vision in the right eye.
On 1 June 2020 Mr Willis filed an Application to Resolve a Dispute in the Personal Injury Commission (Commission) claiming weekly benefits, medical expenses and lump sum compensation in respect of 75% loss of sight in the right eye.
The matter was referred to Medical Assessor Michael Steiner, on 16 March 2022 for assessment under the Table of Disabilities of the loss of vision in the right eye (date of injury 1 July 1994).
The MA examined Mr Willis on 18 August 2022 and assessed 28% permanent loss of efficient use or impairment of the right eye in respect of the injury on 1July 1994.
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.
Mr Willis did not request that he be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Willis to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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.
The MAC
The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
Mr Willis’ submissions include the following:
(a) Dr Michael Delaney, in his report of 7 November 2019, found that Mr Willis had a 65% impairment of vision due to the effects of his reduced visual acuity, and a 10% impairment due to glare intolerance, making a total impairment of vision of 75%.
(b) The MA in the MAC dated 19 August 2022 stated “Using then Table of the Royal Australian and New Zealand College of Ophthalmologists there is 70% impairment of right vision…”
(c) The assessment by the MA should not refer to whole person impairment (WPI) but to the “Table of Disabilities” which was applicable prior to 2002.
(d) The MA incorrectly multiplied the 70% impairment of the right vision by the 40% which is the monetary value for loss of sight of one eye to incorrectly provide “a MAC of 28%”. Mr Willis agreed with the assessment of 70% loss of vision in the right eye.
(e) As the injury occurred in 1994, the 100% impairment of vision in the right eye would amount to $52,160. If the MA‘s assessment was correct, Mr Willis would be entitled to $52,160 x 70% which would equal $36,512 less the previous s 66 benefit paid, that is, $22,000. Therefore, Mr Willis would be entitled to an additional amount of $14,512.
(f) Dr Delaney also provided an opinion that Mr Willis had suffered 10% impairment of vision due to glare intolerance, which was added to the 65% permanent impairment of vision, resulting in Dr Delaney assessing 75% permanent impairment of vision in the right eye. The MA did not deal with this claim of 10% impairment of vision due to glare intolerance.
The respondent’s submissions include the following:
(a) The reference to "Whole Person Impairment" in the MAC instead of the "Table of Disabilities” was a typographical error that can be cured by s 329 of the 1998 Act. The assessment was made using the Table of Disabilities.
(b) The MA referred to the method of assessment being under the Table of Disabilities and any reference to 'whole person impairment' was simply an adoption of the standard format of a MAC of the Commission. The method of assessment as referred to in the MAC details of matters referred for assessment correctly noted method of assessment Table of Disabilities. The reference to a whole person impairment in paragraph 10 was simply a typographical error that can be corrected pursuant to s 329 of the 1998 Act. The error in the MAC did not result in the assessment being made on the basis of incorrect criteria or the MAC containing a demonstrable error.
(c) The MA incorrectly multiplied the 70% of impairment of right eye by 40% (which was the monetary value for loss of sight one eye) to incorrectly provide a “MAC of 28%” impairment of right eye. Again, this could be cured by s 329 of the 1998 Act.
(d) In relation to the second ground of appeal the respondent agreed that the MAC provided an assessment of 70% loss of vision of right eye. The MA provided an incorrect test in arriving at 28% impairment using both the table of College of Ophthalmologists and the Table of Disabilities. The error in the MAC could again be cured by the provisions of s 329 of the 1998 Act on the basis of a reconsideration.
(e) The MA did not assess impairment right eye loss of glare intolerance as assessed by Dr Delaney. Loss of glare intolerance appeared to relate to assessments using the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Ed (AMA 4) and not to assessments under the Table of Disabilities.
(f) Mr Willis relied upon the report of Dr Delaney, who provided an opinion that Mr Willis suffered a 10% impairment of vision due to glare intolerance. Dr Delaney, in report of 7 November 2019, referred to AMA 4 in assessment of permanent impairment vision. AMA 4 specifically relates to a WPI and would not be relevant to an assessment under the Table of Disabilities. Dr Delaney also made reference to the scale issued by Royal Australian College of Ophthalmologists that was attached to the report but not attached to the Application to Resolve a Dispute.
(g) Pursuant to the Royal Australian College of Ophthalmologists Impairment Guide the ophthalmologist should assess visual field impairment in all cases. The MA clearly made the assessment in accordance with the Table of Royal Australian and New Zealand College of Ophthalmologists. The findings on physical examination at paragraph 5 of the MAC took into consideration special investigations as referenced in paragraph 6 of the MAC and in accordance with the Table of Royal Australian and New Zealand College of Ophthalmologists. The assessment was correctly based on the visual acuity and the appearance of the right eye and thus was not assessed on the basis of incorrect criteria nor did the MAC contains a demonstrable error.
(h) The MA assessed Mr Willis in accordance with the Table of Disabilities by reference to his medical examination, applied correct criteria and the MAC did not contain a demonstrable error.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). 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.
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 [2013] SC 1792 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.
The MAC
Under “History relating to the injury”, the MA wrote:
“He was sharpening tools on a large disc and felt foreign bodies go to the right side of his face and in his right eye. The right eye became sore and then settled. For a while he did nothing but then the vision became blurred and he saw Dr Atkins and was told he had a penetrating injury of the cornea with an intralenticular foreign body and was developing a cataract”.
Under “Findings on physical examination”, the MA wrote:
“His uncorrected vision is 6/24-1 on the right and 6/6-4 on the left. On the right the vision could not be improved. On the left he has mild astigmatism and corrects to 6/5. With a reading addition appropriate to his age his right vision can only be improved to N18 whereas the left can be corrected to N5.
Near the centre of the cornea was a corneal scar and underlying this there was a dense localised opacity in the crystalline lens both anteriorly and posteriorly. The fundi were normal and the left eye was normal in all respects. His intraocular pressures were normal”.
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote “He has had an intraocular foreign body which has resulted in a secondary cataract.”
Under “Reasons for Assessment”, at 10(c) the MA wrote:
“a. My opinion and assessment of whole person impairment
28%
In making that assessment I have taken account of the following matters:-
The assessment is based on the visual acuity and the appearance of the right eye.
b. An explanation of my calculations (if applicable)
Using the Table of Disabilities loss of sight of one eye has a maximum payable of 40%.
Using then the Table of the Royal Australian and New Zealand College of Ophthalmologists there is 70% impairment of right vision and 70% of 40% gives rise to a 28% impairment using both the Table of College of Ophthalmologists and the Table of Disabilities
Worksheet /actual calculations attached? No.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I agree with the other medical opinions but I note that Dr Delaney does not reference the Table of Disabilities.
d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable”.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Discussion
The Appeal Panel reviewed the evidence in this matter.
Dr Delaney, in his report of 7 November 2019, made the following findings on examination:
“The uncorrected vision was 6/24 in the right eye and 6/9 in the left in the distance and J18 in the right and J16 in the left for near. With the appropriate spectacle correction the vision in the right eye could not be improved in the distance, but the left eye could be improved to 6/6. The near vision could only be improved to J16 in the right eye, but to J2/4 for near in the left with an increased presbyopic reading addition. The muscle balance, pupil reactions and intraocular pressures were normal in both eyes. Examination of the anterior segment showed a small scar in the cornea of the right eye that had not changed from its appearance when he was seen on the two previous occasions as documented in my reports. Mr Willis had a dense anterior and posterior subcapsular cataract in the right eye. There was a trace of nuclear sclerosis (early physiological cataract formation) in the left eye but this was not clinically significant. The ocular media and fundi were otherwise normal. An OCT examination of the retina showed no abnormalities”.
Dr Delaney made the following assessment of permanent impairment of vision:
“At the present time, Mr Willis has a slowly progressing cataract which has caused some slow but further deterioration in the vision in his right eye. He does however still maintain some vision and is not totally blind.
This impairment of the Visual System is based on the American Medical Association's Guides IV Edition, Chapter 8. There is a 69% impairment of vision of the right eye due to reduced visual acuity (Table 3, 8/212). This impairment of vision must be combined with a further 10% impairment of vision due to the effects of his glare intolerance caused by the cataract (Paragraph 3, 8/209). When these two impairments are combined there is a 72% impairment of vision of the right eye. These impairments have caused an 18% impairment of the visual system (Table 7, 8/219-221) which is a 17% whole person impairment (Table 6, 8/218).
As the injury occurred at work in 1984, the assessment is based on the scale issued by the Royal Australian College of Ophthalmologists, now attached for your information. I refer you to my previous reports, in particular the report of 20 September 2011 in which Mr Willis was noted to have a 55% impairment of vision of the right eye based on the RACO's assessment of permanent impairment of vision. As his cataract has now progressed and his vision deteriorated as well as there being increased glare intolerance, the following reassessment has been made. Mr Willis currently has a 65% impairment of vision due to the effects of his reduced visual acuity and a 10% impairment of vision due to the glare intolerance, making a total impairment of vision of 75%. As noted previously, should Mr Willis undergo cataract surgery, this impairment and his WPI will need to be reassessed three months after completely all treatment. I note that Mr Willis has already been awarded a 55% loss of the right eye as noted above. This loss of vision of the right eye has increased for the reasons noted above”.
Dr Stern in his report of 22 January 2020 made the following findings on examination:
“Unaided visual acuity right eye distance 6/18, reading J 14 and left eye 6/6 and J 12. With correction of a moderate myopic astigmatic error in the right eye and hypermetropic astigmatic error in the left eye for the distance, the visual acuity was right eye unchanged at 6/18 and left eye 6/5. With an appropriate reading correction visual ·acuity right eye J 10, left eye J2. The lids and anterior segments and anterior chambers were normal in each eye. The left cornea was normal. There was a right para-central scar and in a similar position in the central anterior cortex, there was a white dense circular cataract with similar less dense change in the central nucleus. From the anterior cataract, there was a fine strand that led to a large dense central posterior sub-capsular cataract. The vitreous was normal in each eye. There was moderate nuclear lens change and fondi including optic discs, macu!as and retinas, were normal in each eye. Computerised visual fields (Humphrey 30-2) were normal in each eye. There were some fixation losses in each eye in the performance of the test”.
Dr Stern expressed the following “opinion and prognosis”:
“The initial injury in 1994 appears to have been due to a small high speed inert foreign body penetrating the right eye through the right cornea· and anterior and posterior lens. It has left a residual central corneal opacity and right anterior and posterior cataract. The media and fundus including retina, macula and optic disc, appeared normal. His vision has worsened over the years and he has an increasing glare problem. He is also aware of an appearance of a white spot in the pupillary area. All of these injuries are directly due to the accident.
His refractive error for the distance may have been worsened by the right corneal scar but the main cause of his reduced visual acuity is his worsening right cataract. His presbyopia is constitutional, however, the corrected visual loss for near in the right eye is directly due to the right corneal scar and cataract. Likewise, his glare problem is directly due to these conditions and, therefore, related to the accident”.
Dr Stern made no assessment of impairment.
Assessment of loss of sight in respect of an injury before 1 January 2002 is made under the Table of Disabilities. The Royal Australian College of Ophthalmologists Tables are identical with the Table of Disabilities and used by ophthalmologists in making an assessment of loss of sight under the Table of Disabilities.
The MA assessed 70% impairment of right vision. The MA found that Mr Willis’ right vision both corrected and uncorrected was 6/24 minus 1 which was between 6/24 and 6/36. Under the Royal Australian College of Ophthalmologists Table 6/24 is 65% loss, 6/36 is 75% loss and 6/24 minus 1 is halfway between the two and therefore 70% impairment.
Mr Willis submitted that the MA incorrectly multiplied the 70% impairment of the right vision by the 40% which is the monetary value for loss of sight of one eye to incorrectly provide “a MAC of 28%”.
The respondent agreed that the MA incorrectly multiplied the 70% of impairment of right eye by 40% (which is the monetary value for loss of sight one eye) to incorrectly provide 28% impairment of right eye but said this could be cured by s 329 of the 1998 Act on the basis of a reconsideration.
The Appeal Panel agreed with the parties that the MA applied an incorrect test in arriving at 28% impairment by using both the Table of College of Ophthalmologists and the monetary value in the Table of Disabilities.
The Appeal Panel found that the MA made a demonstrable error and made the assessment was made on the basis of incorrect criteria in that he applied an incorrect test in arriving at 28% impairment by using both the Table of College of Ophthalmologists and the monetary value in the Table of Disabilities. The Appeal Panel determined that Mr Willis should be assessed as having 70% impairment of the right eye.
The next ground of appeal related to glare intolerance. Dr Delaney had provided an opinion that Mr Willis had suffered 10% impairment of vision due to glare intolerance, Mr Willis submitted that the MA did not deal with this claim of 10% impairment of vision due to glare intolerance.
The Appeal Panel noted that Dr Delaney in his report of 7 November 2019 made assessments both under the Table of Disabilities and of WPI. He referred to AMA 4 in assessment of WPI of Mr Willis’ vision. AMA 4 specifically relates to the assessment of WPI and would not be relevant to an assessment under the Table of Disabilities.
The Royal Australian College of Ophthalmologists Percentage Incapacity – A Guide to Members (the Guide) provided:
“A. Reduced Visual Acuity
The Council of the College is of the opinion that assessment of loss of visual acuity should be given based on both corrected and uncorrected vision; an opinion as to whether percentage loss of vision should be assessed on corrected vision should be stated, and related to the opinion of the cause of loss of vision, in each individual case.”
The Guide made no reference to glare intolerance and provided for assessment on the basis of reduced visual acuity. The Guide did not provide for an assessment of impairment of vision due to the glare intolerance.
Unlike AMA 4, which provides for an additional award for glare intolerance, an assessment under the Table of Disabilities does not provide for an additional weighting for glare intolerance. The Appeal Panel agreed with the approach taken by the MA, that was, to make no additional award for glare intolerance.
The Appeal Panel found no error in the MA’s assessment in relation to glare intolerance. The Appeal Panel was satisfied that the MA had applied the correct criteria.
The Appeal Panel noted that in Mr Willis’ submissions he argued that the assessment by the MA should not refer to WPI but to the “Table of Disabilities” which was applicable prior to 2002. The Appeal Panel considered that was a typographical error arising from the use of template, but it did not result in any further error in the assessment as the MA did make the assessment under the Table of Disabilities as required for an injury before 1 January 2002.
In summary, the assessment under the Table of Disabilities of the loss of vision to the right eye was 70%.
For these reasons, the Appeal Panel has determined that the MAC issued on
19 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 PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
Matter Number: | 3412/20 |
Applicant: | Richard John Willis |
Respondent: | Bomack Holdings Co Pty Limited |
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 Michael Steiner and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Loss of vision to the right eye | 1/7/94 | 70% | 0% | 70% |
0
2
0