Wyborn v St Andrew's Village Ballina Ltd
[2022] NSWPICMP 331
•18 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wyborn v St Andrew's Village Ballina Ltd [2022] NSWPICMP 331 |
| APPELLANT: | Dylan Charlie Wyborn |
| RESPONDENT: | St Andrews Village Ballina Ltd |
| Appeal Panel: | Member Jane Peacock Medical Assessor Paul Curtin Medical Assessor Mark Burns |
| DATE OF DECISION: | 18 August 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Ear, Nose and Throat and related structures; appellant alleged error and assessment on the basis of incorrect criteria; table 6.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) provides the “criteria for rating permanent impairment due to facial disorders and/or disfigurement”; The Medical Assessor erred and made an assessment on the basis of incorrect criteria when he assessed the appellant under Class 1 as opposed to Class 2 of Table 6.1 of the Guidelines because the appellant has suffered loss of supporting structure of part of the face which necessitated replacement with a prothesis; on the basis of this finding of error, a re-examination was conducted; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 April 2022 Mr Dylan Charlie Wyborn (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael McGlynn, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 March 2022.
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,
· 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 of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (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 the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel found error for the reasons explained below.
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.
Further medical examination
Dr Paul Curtin of the Appeal Panel conducted an examination of the worker on 12 August 2022 and reported to the Appeal Panel on 15 August 2022.
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, 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.
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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 22 May 2015
· Body parts/systems referred: Ear, Nose, Throat and related structures
· Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. TMJ - mastication
22/05/2015
Ch 6, paragraph6.9
Ch11,
T11-7 p262
13%
0%
13%
2. Face - scarring
22/05/2015
Ch 6, Table 6.1, page 34
AMA5 Table 11-5 is replaced by WC Guides Table 6.1
& TEMSKI
1%
0%
1%
3. Trigeminal Nerve – right 1st & 2nd Divs
22/05/2015
Ch 5, Paragraph 5.13,page 32
Ch 13, Table 13-11, page 331
5%
0%
5%
Total % WPI (the Combined Table values of all sub-totals)
18%WPI
The worker appealed.
In summary, the appellant submitted that the MA has erred as follows:
(a) the assessment was on the basis of incorrect criteria because the MA erred in the assessment of the appellant’s facial disfigurement as Class 1 when he should have assessed Class 2 on the basis of Table 6.1 of the Guidelines because the appellant has suffered a “loss of supporting structure of part of face (albeit replaced with a prothesis”.
(b) The MA has made a demonstrable error because he is required to use the method of assessment that yields the highest degree of permanent impairment. The MA erred in disregarding an assessment under Table 6.1 and reverting to The Table for Evaluation of Minor Skin Impairment (TEMSKI) facial scarring.
(c) The MA failed to give proper reasons and engage with the evidence “as to why the appellant should not have the ‘loss of supporting structure of part of the face’ considered when assessing this impairment under Table 6.1.
In summary, the respondent submitted that the MA did not err or make an assessment on the basis of incorrect criteria and accordingly the MAC should be confirmed. In summary, the respondent submitted as follows:
(a) it was open to the MA to assess the appellant’s facial disfigurement as Class 1 as the appellant has not lost a supporting structure of part of his face.
(b) In the alternative, if the Appeal Panel is satisfied that the right right temporomandibular joint (TMJ) replacement with a prothesis does satisfy Class 2 criteria of Table 6.1 of the Guidelines, then an assessment of the appellant’s impairment is at the lower end of that range being 6% whole person impairment and does not rise to the highest end of that range being 10% whole person impairment.
(c) It is not open to a MA to provided two separate assessments for the same facial scarring in circumstances where they have applied Class 2 of Table 6.1 of the Guidelines which already encompasses cutaneous disorders.
(d) There is no medical evidence that the right TMJ is a supporting structure of part of the face and there is no indication in the MAC that the MA considered that the appellant had lost a supporting structure of part of the face. Therefore the MA was not obliged to provide his reasons as to why he did not consider that the appellant had lost a supporting structure of part of his face.
The MA took a history of injury and resultant surgery consistent with the other evidence as follows:
“Dylan Wyborn stated he sustained facial injuries when working at Boronia Nursing Home on 22 May 2015. He was punched in the face by a resident. He sustained a dislocation of right temporomandibular joint (TMJ). He attended Ballina Hospital where the TMJ dislocation was reduced under sedation.
Following this he developed pain in the region of the right TMJ. He was referred to Dr Bilski, maxillofacial surgeon, and had conservative treatment together including arthrocentesis and steroid injection into the right TMJ. His condition did not improve.
Dr Bilski referred him to Dr Dimitroulis, maxillofacial surgeon and in 10 July 2018 Mr Wyborn underwent right TMJ arthrotomy, discectomy and fat graft. His condition persisted and on 19 July 2019 Dr Dimitroulis replaced the right TMJ was with a joint prosthesis.”
The MA recorded his findings on examination as follows:
“Dylan Wyborn was 179 cm tall and weighed 90 kg.
He had a fair skin colour and short length full facial beard and moustache.
There was no visible facial skeletal deformity or asymmetry.
There was a pre-auricular scar running from right temple to lower border of the tragus, 50 mm x 3 mm, slightly hyperpigmented with some colour contrast, flat, with no visible stitch marks, no trophic features, and no adherence. On the right anterior neck there was a transverse scar 30 mm x 4 mm, hypopigmented with some colour contrast, flat, with no visible stitch marks, no trophic features, and no adherence.
Maximum jaw opening was to 10 mm between the anterior teeth. His teeth were in good condition with good hygiene. The upper right incisor tooth angled slightly towards the left.
There was loss of sensation in the lateral half of right forehead and right mid face in the sensory distribution of 1st and 2nd divisions of right trigeminal nerve.”
The MA summarised the injuries and diagnosis as follows:
“Right temporomandibular joint dislocation sustained in the workplace incident on 22 May 2015.
As a result of this injury Dylan Wyborn developed severe right TMJ dysfunction. He has undergone multiple treatments finishing with replacement of the right TMJ.
He has impaired mastication, impaired sensation and right trigeminal nerve distribution, and visible surgical scarring affecting activities of daily living”
The MA explained his assessment of impairment as follows:
“i) NSW Workers Compensation Guidelines 4th Edition and the American Medical Association 5th Edition of the Guides to Evaluation of Permanent Impairment (AMA5) are silent on jaw injuries. Temporomandibular joint dysfunction can affect mastication resulting in dietary restrictions. AMA5 Table 11-7 page 262 allows for an impairment assessment of 0% to 19% WPI (modified by NSW Workers Compensation Guidelines 4th Edition paragraph 6.9) when ‘diet is limited to semisolid or soft foods’.
Dylan Wyborn has diet restricted to soft and semi-solid food with restricted jaw movement and chronic facial pain exacerbated by biting and chewing food. I assess the condition at the low end of the upper third of this range as it is not the worst possible case; at 13% WPI.
ii) Facial Scarring is assessed using NSW Workers Compensation Guidelines 4th Edition Chapter 6, pages 34, paragraph 6.1. This directs that AMA5 Table 11-5, page 256 be replaced by Table 6.1 on page 34 of the Guidelines. The facial impairment is Class 1 as there is facial abnormality involving cutaneous structures with visible scarring of the right face. The range of Class 1 Facial Disfigurement is 0%-5%WPI.
NSW W/C Guidelines 4th Ed Table 6.1 does not provide guidance on the level of impairment between 0% & 5%WPI. Facial scarring can also be assessed as a Class 1 Skin Disorder as there are signs and symptoms present, and few limitations on activities of daily living and no or intermittent treatment is required. The range of Class 1 is 0%-9%WPI. The Table for Evaluation of Minor Skin Impairment (TEMSKI) is used to rate Class 1. Dylan Wyborn conscious of facial scarring; there is some colour contrast with the surrounding skin; he can easily locate the scarring; there are no trophic features; no visible suture marks; anatomic location of the site is usually visible; no contour defect; minor limitation of few ADL; no treatment is required; no scar adherence. The best fit is 1%WPI, due to facial scarring.
iii) Trigeminal nerve assessment is as directed in NSW Workers Compensation Guidelines 4th Edition paragraph 5.13, page 32, which directs AMA5 Table 13-11, page 331 be used adding ‘sensory loss or dysaesthesia’ after ‘neuralgic pain’. There is mild impairment in my opinion as there is sensory loss with some paraesthesia. This is a Class 1 Impairment. The range is 0% to 14%WPI. NSW Workers Compensation Guidelines 4th Edition direct that the impairment percentages for the three divisions be apportioned with extra weighting for the first division. In my opinion the impairment is in the lower 1/2 of this range as the areas affected are approximately half of the sensory area of each affected nerve division. There is 5%WPI due to trigeminal nerve dysfunction.”
Table 6.1 of the Guides provides the “criteria for rating permanent impairment due to facial disorders and/or disfigurement” as follows
| Class 1 0–5% impairment of the whole person | Class 2 6–10% impairment of the whole person | Class 3 11–15% impairment of the whole person | Class 4 16–50% impairment of the whole person |
| Facial abnormality limited to disorder of cutaneous structures, such as visible simple scars (not hypertrophic or atrophic) or abnormal pigmentation (refer to AMA5 Chapter 8 for skin disorders) or mild, unilateral, facial paralysis affecting most branches or nasal distortion that affects physical appearance or partial loss or deformity of the outer ear | Facial abnormality involves loss of supporting structure of part of face, with or without cutaneous disorder (eg depressed cheek, nasal, or frontal bones) or near complete loss of definition of the outer ear | Facial abnormality involves absence of normal anatomic part or area of face, such as loss of eye or loss of part of nose, with resulting cosmetic deformity, combine with any functional loss, eg vision (AMA4 Chapter 8) or severe unilateral facial paralysis affecting most branches or mild, bilateral, facial paralysis affecting most branches | Massive or total distortion of normal facial anatomy with disfigurement so severe that it precludes social acceptance or severe, bilateral, facial paralysis affecting most branches or loss of a major portion of or entire nose |
The MA erred and made an assessment on the basis of incorrect criteria when he assessed the appellant under Class 1 as opposed to Class 2 because the appellant has suffered loss of supporting structure of part of the face which necessitated replacement with a prothesis. The appellant has suffered loss of the mandibular condyle and condylar neck on the right side which involves a significant loss of supporting structure of part of the face and which resulted in replacement with a prothesis. In these circumstances a rating on the basis of correct criteria qualifies the appellant for assessment under Class 2. On the basis of this finding of error, a MA member of the Appeal Panel, Dr Curtin, was appointed to conduct a re-examination.
Dr Curtin examined the appellant on 12 August 2022 and reported to the Appeal Panel on 15 August 2022 as follows:
“REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: MI-W4160/21
Appellant: Dylan Charlie Wyborn
Respondent: St Andrews Village Ballina Ltd
Examination Conducted By: Dr Paul Curtin
Date of Examination: 12 August 2022
1. The workers medical history, where it differs from previous records
The history is largely unchanged. Because the history of jaw dislocation following trauma seemed unusual to this assessor, further enquiries were made regarding the circumstances of the original injury. Mr Wyborn said that there was no previous history of any spontaneous jaw dislocation, nor had he ever sustained dislocation of joints elsewhere on his body. He said that when he was struck in the face on the 22/05/2015, he felt immediate right sided facial pain and could not close his mouth properly. He said that in the course of the incident he also strained his neck and back. He attended a radiologist in Ballina and imaging was carried out (not sighted in the documents, but noted in GP records) which confirmed a dislocation. He then attended Ballina hospital where the dislocation was reduced. His jaw discomfort settled to some extent, but the neck and back problems persisted for several weeks causing him some difficulty in returning to his job in aged care. His GP notes record that he has given a short course of prednisolone, recommenced on dexamphetamine and also started on antidepressants. His neck and back improved, but three months after the accident, symptoms of right facial pain and restricted jaw movement deteriorated, causing him to seek further treatment. Mr Wyborn said that he required opiate analgesics for about three years until he eventually underwent the TM joint implant on the 19/07/2019. He was initially delighted with the results of this surgery, with improvement in mastication and jaw opening, although the surgery appeared to result in some sensory loss on the right side of his face. Unfortunately the situation deteriorated over the ensuing six months with the recurrence of pain and restricted jaw opening which led to his subsequent surgical treatment. Mr Wyborn lives in Brisbane and has not seen his treating surgeon Dr Dimitroulis, who is in Melbourne, since 2019, and he said that he could not afford the expense involved, expenses which have not been met by insurance.
Mr Wyborn said that in childhood he was diagnosed with ADHD and took dexamphetamine for some years until about the age of 14 when he rebelled against the idea of medication. His academic performance subsequently suffered and he left school before completing year 12. In May 2016 he was referred to a clinical psychologist for treatment of a post-traumatic stress disorder. Consultation notes from that treatment record that Mr Wyborn had admitted the regular use of cannabis, together with some experience of MDMA (ecstasy) and LSD. A report dated 25/06/2019 from Dr Mark Scurrah, consultant Psychiatrist, diagnosed chronic post-traumatic stress disorder with depressive symptoms, and polysubstance abuse which existed prior to the assault.
Mr Wyborn says that his current symptoms of ongoing jaw discomfort are alleviated by the regular use of medicinal cannabis (prescribed by Dr Jared Pezzulo , a GP in Brisbane). He said that he takes this wherever he feels the need arise. He said that he also uses cannabis oil, and he continues to take dexamphetamine. He said that he is currently employed full-time as a manager for a medical cannabis dispensing pharmacy. A detailed pharmaceutical review dated 30/04/2021 (M. Hijazi) in the documentation concludes with the words ‘There is sufficient evidence to suggest that Dylan’s chronic jaw problems and his need for further revision is linked to his use of illicit and pharmaceutical drugs’
2. Current symptoms.
Mr Wyborn said that he continues to suffer from a constant dull ache on the right side of his jaw, together with sharp pain in the right TM joint if he attempts to bite anything hard. He also has restricted jaw opening, and the combination of these symptoms significantly restricts his dietary options. He is effectively confined to a soft diet. He said that he was unable to manage to eat a steak. He said he was able to manage lettuce and tomato but could not eat anything hard such as a carrot. His usual diet consisted of things like chicken and rice, curries, soups and pasta. Mr Wyborn said that he was also aware of altered sensation on the right side of his face.
3. Findings on clinical examination.
Mr Wyborn was a fit looking Caucasian man of 25 years. He had dark hair, a fair complexion and was clean shaven. He had a pleasant manner and was cooperative with the assessment. He was slightly overweight with a BMI of 26.8 (85 kg and 178 cm). I note that in his GP records he was recorded at 120 kg when he was aged 14 years.
There was no obvious facial deformity. The chin was midline and did not deviate on opening. Facial movements were normal and symmetrical.
In the pre-auricular skin on the right side, there was a 4 cm vertical scar the upper half of which was hidden under the temporal hairline. The scar was flat, soft, non-tender with no obvious suture marks. In the upper neck just beneath the right angle of the jaw there was a fine line horizontal scar extending 22 mm. The scar was pale, soft and flat and quite difficult to see.
Jaw opening was restricted to a maximum of 10 mm between the tips of the incisor teeth. The right TM joint was quite tender to palpate during its limited movement. The preauricular area could be palpated without undue discomfort with the teeth in occlusion. Mr Wyborn was not able to produce any lateral movement of his lower jaw. He had a complete dentition in good condition with good oral hygiene. He came into a class I occlusion although with some occlusal irregularity between the posterior teeth on the left side.
Detailed sensory testing of the right side of the face was carried out using light touch and two point discrimination. There appeared to be reduced sensitivity in a localised area of the right cheek in front of the year and in the skin of the temple immediately above the ear. There was normal sensation of the ear and ear canal, and normal sensation of the right forehead, anterior face, lower jaw and lips.
4. Comments on Whole Person Impairment.
The WorkCover Guidelines in chapter 14 direct that ‘For cases of facial disfigurement refer to table 6.1 in the Guidelines’. The This table provides the criteria for rating facial disfigurement into 4 classes with increasing levels of permanent impairment. The Class 2 category (6-10% WPI) applies when the facial abnormality involves loss of supporting structure of part of the face with or without cutaneous disorder. In this case loss of the mandibular condyle and condylar neck on the right side does involve a significant loss of supporting structure of part of the face. Such a loss would normally result in noticeable chin deviation and derangement of the dental occlusion. He has had a prosthetic reconstruction, the future of which is uncertain, and he has lost normal movements of the chin and therefore significant alteration in his appearance. Because his facial appearance at rest is undisturbed and because the small scars on his face and neck are not particularly noticeable, impairment is rated at the lower end of the scale at 6% WPI.
His limited jaw opening and right sided TM joint pain has resulted in dietary restriction and in regard to this WorkCover Guidelines direct the assessor to AMA5 table 11-7 which provides an impairment range of 5-19% when the diet is limited to semisolid or soft foods. The Guidelines also state that when using this table, the first category should allow for 0-19% rather than 5-19%. The history given by Mr Wyborn and the findings on examination suggest that his diet is completely restricted to soft food and therefore he qualifies for the maximum impairment allowable in this category, namely 19% WPI.
It is curious that the assessment of facial sensory nerve dysfunction on this occasion differs considerably from findings reported in the certificate of assessor McGlynn and in the reports Prof David and Dr Curtis. These previous reports all implicated the first and second divisions of the trigeminal nerve, without providing any explanation as to how these nerves might have been injured, considering they are located remotely from the surgical site at the right TM joint. Assessment of sensory loss or dysaesthesia are dependent on the subjective responses of the patient which can be influenced by the presence of pain or psychological disturbance. When the current assessment was carried out, Mr Wyborn was in a comfortable and relaxed state, was fully cooperative and reasonably consistent responses were obtained. The relatively limited area of altered sensation on the right side of the face could best be explained by injury to the auriculotemporal nerve (a branch of the third division of the trigeminal)) which passes in close relation to the neck of the mandibular condyle on its way to carry sensation from skin over the temple. The nerve normally also supplies sensation to the ear, which in this case was unaffected. It is not clear how the facial skin could be affected, but it is known that the anatomy of this nerve can be quite variable1.
With regard to these sensory changes, the WorkCover Guidelines (para 5.13, P 32) direct the assessor to AMA5 table 13-11p331 and indicates that the words ‘sensory loss or dysaesthesia’ should be added to the table after the words ‘neuralgic pain’ in each instance. As the sensory loss appears to be both localised and mild in degree, the impairment falls into the Class I category which offers an impairment range of 0-14% WPI. The mandibular division of the trigeminal nerve can account for no more than 30% of trigeminal nerve impairment. It would be reasonable to allow the maximum value of 14%, 30% of which is 4.2%. This should be reduced to 1% because the auriculotemporal nerve is one of four sensory branches of the mandibular division, the other branches supplying the lower jaw and teeth, tongue, chin and lower lip.
Combining the impairments results in a total of 25% WPI.
1. Gülekon N, Anil A, Poyraz A, Peker T, Turgut HB, Karaköse M. Variations in the anatomy of the auriculotemporal nerve. Clin Anat. 2005 Jan;18(1):
15-22Stern RS, Weinstein MC.”
The Appeal Panel adopts the findings and the report of Dr Curtin.
On this basis, the Appeal Panel will revoke the MAC and issue a new MAC certifying a whole person impairment of 25% as a result of injury on 22 May 2015.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 March 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 after 1 January 2002
Applicant: | Dylan Charlie Wyborn |
Respondent: | St Andrews Village Ballina Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael McGlynn 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. TMJ - mastication | 22/05/2015 | Ch 6, paragraph6.9 | Ch11, T11-7 p262 | 19% | 0% | 19% |
| 2. Face – scarring/disfigurement | 22/05/2015 | Ch 6, Table 6.1, page 34 | AMA5 Table 11-5 is replaced by WC Guides Table 6.1 & TEMSKI | 6% | 0% | 6% |
| 3. Trigeminal Nerve – right 3rd Div | 22/05/2015 | Ch 5, Paragraph5.13,page 32 | Ch 13, Table 13-11, page 331 | 1% | 0% | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 25% | |||||
0