Wolper Jewish Hospital v Bohlock
[2023] NSWPICMP 347
•21 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wolper Jewish Hospital v Bohlock [2023] NSWPICMP 347 |
| APPELLANT: | Wolper Jewish Hospital |
| RESPONDENT: | Lee-Anne Elke Bohlock |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 21 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) erred by assessing respondent’s impairment due to scarring as 4% whole person impairment (WPI); Appeal Panel found (MA) did not err as his findings relating to the features of the appellant’s scars were best reflected by the criteria in Table 14.1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 for 3-4% WPI; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 May 2023 the appellant, Wolper Jewish Hospital, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
RELEVANT FACTUAL BACKGROUND
The appellant employed the respondent, Lee-Anne Elke Bohlock, as a nurse from around 2012. On 9 September 2017, Ms Bohlock caught her left foot on a food trolley, whilst performing her duties, causing her to trip and fall. The fall caused pain in her left foot. She continued to work her shift and her shifts over the ensuing few weeks but with increasing symptoms in her left ankle and achilles tendon area. Her general practitioner (GP) referred her for an ultrasound of her left ankle which revealed a partial tear of her achilles tendon. She was initially treated conservatively with physiotherapy and an injection of steroid. That did not relieve her symptoms.
In January 2018 she consulted orthopaedic surgeon Dr Andrew Wines who carried out a percutaneous debridement of her left Achilles with a PRP injection. That also did not relieve her symptoms. She sought a further opinion from orthopaedic surgeon Dr John Rooney whom she consulted in October 2018. On 15 November 2018 Dr Rooney performed a left achilles tenoplasty with debridement. That resulted in improvement of symptoms, but did not fully relieve her symptoms. In April 2021 Dr Rooney performed a calcaneal osteotomy and Achilles tendon reconstruction in her left ankle.
Ms Bohlock developed pain in her right achilles tendon due to non-weight bearing on her left foot. Dr Rooney diagnosed this as a right achilles tendinopathy with a retrocalcaneal bursitis and a calcaneal osteophyte. On 16 May 2019 Dr Rooney performed an achilles tenoplasty, an excision of the retrocalcaneal bursa and a calcaneal osteotomy.
Relying on a report of orthopaedic surgeon Dr Zbigniew Poplawski dated 10 June 2022, who assessed the respondent to have 16% whole person impairment (WPI) from her injury, the respondent claimed from appellant compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act). Subsequent to that, the appellant’s insurer organised for the respondent to be examined by orthopaedic surgeon Dr Richard Powell who, in a report dated 24 November 2022 advised he assessed the respondent had 2% WPI from her injury.
On 1 December 2022 the appellant’s insurer wrote to the appellant notifying her under s 78 of the 1998 Act that it disputed it was liable to pay her compensation under s 66 of the 1987 Act in response to her claim. It advised her its reasons for that were that under s 66 of the 1987 Act her permanent impairment was required to be greater than 10% in order to be entitled to compensation for permanent impairment and that Dr Powell had assessed her to have 2% permanent impairment.
A medical dispute consequently arose between the appellant and the respondent.
The appellant thereupon initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation under s 66 of the 1987 Act. A delegate of the President referred the matter to the Medical Assessor. The body parts listed in that referral that the Medical Assessor was asked to assess were “left lower extremity, right lower extremity, scarring (TEMSKI)”.
As said, the Medical Assessor issued a MAC in response to that referral on 11 May 2023. In that he certified he assessed the appellant had 15% WPI from her injury, comprising 6% WPI relating to the left lower extremity, 5% WPI relating to the right lower extremity and 4% WPI relating to scarring.
The appellant takes no issue in its appeal against the MAC regarding the Medical Assessor’s assessment of the respondent’s permanent impairment relating to her right and left lower extremities. The appellant’s challenge relates only to the Medical Assessor’s assessment of the respondent’s permanent impairment relating to scarring.
With respect to that, the Medical Assessor recorded in Part 5 of the MAC that he found from his examination of the respondent that she had 10cm scars along the posterolateral border of her achilles tendon that were broadened, coloured and had obvious areas along them of lateral thickness wear. The Medical Assessor also recorded that there was a 6cm scar laterally over the left calcaneus.
Under the heading “present treatment”, the Medical Assessor reported that the respondent’s principal problem was fragility of her wounds bilaterally which caused the respondent to be careful with her footwear so as not to irritate her wounds. The Medical Assessor noted that the respondent’s principal problem “relates to footwear rubbing on her scars”.
The Medical Assessor recorded under the heading “Social activities/ADL” that the respondent is restricted with respect to gardening and yard maintenance and has difficulty gardening and mowing her lawn. The Medical Assessor noted that the respondent is unable to walk on uneven ground or on the beach and can no longer undertake gym based exercises due to the pain in her feet.
The Medical Assessor said that he assessed the respondent’s permanent impairment relating to her scarring in accordance with Table 14.1 of the Guidelines and that he rated her impairment as 4% WPI “given the trophic changes, contour defects, tethering and physical irritation from footwear”. He observed that his assessment differed from Dr Poplawski’s assessment and explained that he had “given a higher impairment for scarring, given the scar fragility”.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is for two reasons. Firstly, the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment. Secondly, absent the Appeal Panel finding error in the MAC, the Appeal Panel’s power to examine the appellant is not enlivened.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that what the Medical Assessor recorded in the MAC regarding the respondent’s restriction in her activities of daily living (ADLs) is a consequence of the respondent’s physical injuries and not the respondent’s scarring. The respondent submitted that the Medical Assessor did not explain what he meant by “fragility” of the scarring. The appellant submitted that that term “is not a recognised measure of ADLs under Table 1-2 of the glossary of AMA5”.
The appellant submitted that the respondent’s need to be careful with her footwear rubbing her wounds is also not a “recognised measure” of ADLs. The appellant suggested that the Medical Assessor’s use of the term “fragility” might be a reference to “trophic changes” but submitted it is not relevant to ADLs. The appellant submitted that the Medical Assessor did not reveal within the MAC what activities the respondent was unable to do or had difficulty doing due to her scarring, as distinct from the respondent’s injuries.
The appellant submitted that in accordance with Table 4.1 of the Guidelines for an assessment to be made that a worker has 3-4% WPI due to scarring a finding is required that exposure to chemical or physical agents causes a temporary increase to a worker’s limitation in ADLs. The appellant submitted that there is no evidence of the respondent being exposed to chemical or physical agents such that there would be a temporary increase in the limitations she had with ADLs.
In reply, the respondent submits that the Medical Assessor made detailed findings relating to her scarring. The respondent submitted that the Medical Assessor justified why she met the criteria detailed in Table 14.1 for an assessment to be made that she had 3-4% WPI due to her scarring.
The respondent noted that the Medical Assessor found that she has to be careful with her footwear so as not to irritate her wounds and that fulfilled the requirement that she is conscious of her scars or skin condition.
The respondent noted that the Medical Assessor found that her scars have colour and are easily identifiable because they are broadened and have varying areas of lateral thickness wear, trophic changes and contour defects. The respondent submitted that this fulfilled the requirement that the scar has easily identifiable colour contrast.
The respondent noted the Medical Assessor’s findings that her scars were irritated when wearing footwear, are 10cm long, broadened, coloured and have obvious areas along the lateral thickness of wear, have trophic changes and contour defects, and have tethering. She submitted these findings fulfilled the requirement that her scar is easily locatable.
The respondent also submitted that the Medical Assessor’s findings within Part 10 b. of the MAC met the requirements that her scars have trophic changes evident to touch, that her scars or suture marks are clearly visible, that her scars have a contoured defect which is easily visible and that her scars have some adherence to underlying structures.
The respondent referred to photos of her scars attached to her Application to Resolve a Dispute (ARD), which documents were forwarded to the Medical Assessor. The respondent submitted that what was shown therein indicated she met the criteria that the anatomic location of her scars is such that they are visible with usual clothing and hairstyle.
The respondent referred to the Medical Assessor’s finding that she has to be careful with her footwear so as not to irritate her wound. The respondent commented that her restriction in the use of footwear had an impact on her gardening, walking, running and going out. The respondent submitted that the Medical Assessor found that a physical agent, that is shoes, increased the limitation of her ADLs. The respondent submitted that this met the criteria set out in table 14.1 for ADL/treatment with respect to a rating of 3-4% WPI.
The respondent submitted that the Medical Assessor gave clear and consistent and coherent reasons for rating her scarring as 4% WPI and, consistent with clause 14.8 of the Guidelines, used his clinical judgment to determine that her scars best fit the criteria for a 3-4% WPI rating.
FINDINGS AND REASONS
The procedures on appeal are contained in s328 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.
The Appeal Panel is of the view that the Medical Assessor applied the correct criteria to make his assessment of the respondent’s WPI relating to her scarring, and this is because he used the criteria set out in chapter 14 of the Guidelines, specifically the criteria within Table 14.1. Accordingly, the Appeal Panel finds that the appellant has not established the ground for appeal provided in s 327(3)(c) of the 1998 Act.
The Appeal Panel also considers that the Medical Assessor has not made any error by rating the respondent’s permanent impairment from her scarring as 4% WPI. The Appeal Panel considers, when the MAC is read as a whole, that the findings the Medical Assessor made justify his assessment of the respondent’s permanent impairment relating to scarring. Further, when the MAC is read as a whole, the Medical Assessor has adequately explained his assessment.
The Medical Assessor noted that the respondent has to be careful with her footwear so as not to irritate her wounds. That clearly indicates that the respondent is conscious of her scars. Further, the fact that the respondent is conscious of the irritation of her scars from footwear also means that she is easily able to locate the scars.
The Medical Assessor found that the respondent’s scars were coloured. Consequently, the respondent’s scars had identifiable colour contrast. The Appeal Panel observes that the photos of the respondent’s scars attached to the ARD show colour contrast.
The Appeal Panel also observes from these photos that the respondent’s scars have clearly visible suture marks and that the location of these scars would be clearly visible in usual clothing, such as a dress or shorts or summer or beach attire.
The Medical Assessor noted within 10b of the MAC that the scars had trophic changes and contoured defects.
The Medical Assessor recorded that the respondent’s principal problem relates to what he termed to be the fragility of her wounds bilaterally which results in her having to be careful with the footwear she wears so as not to irritate the wounds. He noted that the respondent has a problem with footwear rubbing on her scars. The Medical Assessor recorded that the respondent is restricted with respect to her gardening and yard maintenance and is unable to walk on uneven ground or on the beach.
The Medical Assessor recorded the respondent’s principal problem relates to the fragility of her scars. The Appeal Panel understands that to mean that the respondent’s scars can be easily irritated and damaged. That would have an effect on her ADLs, as the Medical Assessor found, specifically with respect to gardening, yard maintenance and walking.
The Appeal Panel observes that the respondent’s scars affect her ADLs, as that term is defined in Table 1-2 of AMA5, in that they affect her walking and hence her physical activity. Further, the definition provided in AMA 5 for ADLs is not exhaustive. The examples it provides for physical activity are accordingly not exhaustive. Consequently, the respondent’s difficulty with gardening and lawn maintenance is also a limitation on her ADLs, of which account must be taken with respect to the assessment of her permanent impairment due to scarring.
The Appeal Panel considers that the restriction the respondent has with respect to her ADLs may be partly due to the pain she experiences from the injury to her achilles tendon. But it is also due in part to her scars. Further, the fact that her footwear can irritate her scar indicates that a physical agent, that is her footwear, may temporarily increase her limitation with her activities of daily living.
The Medical Assessor noted that the respondent’s scars have tethering. This means that there is some adherence between the scars and underlying structures.
Given all that, the Appeal Panel considers that the Medical Assessor did not err with respect to the exercise of his clinical judgment in determining the features of the respondent’s scars are best reflected by the criteria set out for a 3-4% WPI rating in Table 14.1 of the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 April 2023 should be confirmed.
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