Younan v Sealcorp Australia Pty Ltd
[2022] NSWPICMP 481
•24 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Younan v Sealcorp Australia Pty Ltd [2022] NSWPICMP 481 |
| APPELLANT: | Patrick Younan |
| RESPONDENT: | Sealcorp Australia Pty Ltd |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Brian John Stephenson |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 24 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Right lower extremity injury; the appellant appealed on the basis that the Medical Assessor (MA) was in error in not referring to a critical piece of evidence being the report of Dr Guirgis which supported the claim for permanent impairment; the MA does not need to refer to each piece of evidence; in any event, the assessment by Dr Guirgis is plainly in error in circumstances where he has assessed impairment on the basis of a fracture with displacement; the radiological investigations to which the MA has had proper regard show that the fracture has been anatomically united using internal fixation devices; this means it is not displaced and cannot be rated for impairment based on displacement which is how Dr Guirgis rated the impairment; he also gave an impairment rating based on chondral loss when in fact there is no radiological evidence of chondral loss; chondral loss can only be assessed on the basis of radiological evidence; the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed do not permit a diagnosis based estimate to be combined with impairment from Range of Movement (ROM); Held – the MA has correctly assessed impairment on the basis of loss of ROM and the Appeal Panel can discern no error. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 August 2022 Younan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 August 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.
The appellant sought a re-examination. As a result of it’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could discern no error in the assessment and absent a finding of error the Appeal Panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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, where relevant, in the body of this decision.
SUBMISSIONS
The appellant made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The Sealcorp Australia Pty Ltd (the respondent) despite being given the opportunity to do so, did not file a notice of opposition and hence made no submissions.
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:
“● Date of injury: 22 November 2017.
· Body parts/systems referred: right lower extremity (ankle, scarring)
· Method of assessment:Whole Person Impairment.”
The MA issued a MAC certifying 7% whole person impairment as a result of injury on 22 November 2017 comprising 6% WPI in respect of the right lower extremity and 1% WPI in respect of scarring.
The appellant appealed.
The appellant submitted, in summary, that the MA made a demonstrable error and/or made an assessment on the basis of incorrect criteria because he failed to consider critical evidence, namely the report of Dr Guirgis, which founded the appellant’s claim for lump sum compensation.
Dr Guirgis assessed 15% WPI as a result of injury on 22 November 2017. The appellant submitted that the MA only referred in the MAC to the reports of Dr Bodel and Dr Vote.
The role of the MA is to conduct an independent assessment on the day of examination. The role of the MA is to conduct an independent assessment on the day of examination. The MA is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the MA. He need not refer to every piece of evidence. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment in accordance with the criteria in the Guidelines.
The MA said he had regard to all of the documents that were in evidence before him and he itemised what he considered most relevant as follows:
“All of the documents referred by the Commission were studied in detail. The following were considered particularly relevant for this assessment:
DATE
AUTHOR
SPECIALITY
COMMENTS
17/06/21
Patrick Younan
Applicant
Personal statement.
22/10/20
Dr James Bodel
Orthopaedic Surgeon
Scarring 2%. Full description of reduced range of movement of the right ankle complex although no WPI has been calculated. (Using these figures, the whole person impairment from this range of movements would be 7% WPI.)
01/03/21
24/02/22
Dr James Vote
Scarring 2%. Range of movement partially described. WPI given at 8% from Table 17-33 on Page 547 but this is not specified further.
”
The MA took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Younan described that on 22/11/2017, while working on a stairway, his work colleague was startled by a cat which had suddenly emerged. The work colleague had tumbled backwards on the stairs, landing on top of Mr Younan’s right lower leg causing a severe fracture of the ankle complex.
He was taken by ambulance to Bankstown Hospital where he came under the care of Specialist Orthopaedic Surgeon, Dr Christopher Reitz. His clinical management consisted of internal fixation which remains. The original injury was described as a ‘tri-malleolar’ fracture of the ankle.
He had a protracted rehabilitation and never progressed very satisfactorily. He continues to have gross dysfunction of the right ankle complex.
· Present treatment:
He takes analgesics. There is no other current treatment for the ankle complex.
· Present symptoms:
Pain in the right ankle with restriction of movement. There was also gross restriction of mobility. He can only walk for about half an hour. Stairs are managed singly. Occasionally, the right ankle swells. This occurs more with usage.
· Details of any previous or subsequent accidents, injuries or conditions:
None have been identified.
· General health:
Mr Younan is taking antidepressants. He is also on beta-blockers which apparently are associated with an anxiety condition as well.
· Work history including previous work history:
Mr Younan left school and became an apprentice Carpenter. He then worked for the Sealcorp Group for about 5 years. There has been no further work or training for work since this injury.
· Social activities/ADL:
Mr Younan is single and without dependents. He continues to live with his parents in the family home together with another brother and sister. Everybody in the family home is fit and well.
He is a non-smoker and non-drinker.
Previously, he played soccer, football and tennis but has not been able to get back to any of these activities.”
The MA conducted a physical examination, the detail of which he recorded as follows:
“Mr Younan was of average stature and build. He was a very concerned young man. He exhibited significant dysfunction with his right ankle complex.
Lower Limbs. He walked with a slight right sided limp. He was unable to effectively push off his right forefoot and therefore tended to externally rotate the foot. He could stand on his heels but not on the toes of his right foot. Squatting was not attempted.
The legs were equivalent in length. The right thigh was ½ cm less in circumference than the left. The right calf was 1½ cm less.
The two surgical scars, one each on the medial and lateral surface of the right ankle, had healed well although were still very obvious with altered pigmentation and slight contour defect. He easily identifies these scars and exhibited a lot of concern associated with them. Normally, they would be covered with footwear and socks. There is no alteration of activities of daily living associated with the scars and no further treatment for them is indicated.
There was a full and equivalent range of movement of the hips and the knees.
He had the following ankle movements:
MOVEMENT
RIGHT
LEFT
Dorsiflexion
0°
20°
Plantar flexion
30°
40°
Inversion
0°
40°
Eversion
0°
30°
No significant neurological features were identified.”
The MA had regard to the special investigations for the right ankle as follows:
DATE
INVESTIGATION
RESULTS
31/08/18
Plain x-ray
Internal fixation stabilising fractures to the distal tibia and fibula.
09/09/19
CT scan
The fractures have healed in satisfactory position.
The MA summarised the injury and diagnosis as follows:
“Summary of injuries and diagnoses:
Mr Younan gives a history of sustaining a severe fracture to his right ankle complex in late November 2017. This was managed by internal fixation. Technically, this gave a satisfactory result with full bony union of the fractures although he has been left with gross dysfunction of the right ankle complex.”
The MA considered the appellant’s presentation to be consistent.
The MA explained his impairment assessment as follows:
“There are two possibilities for calculating the whole person impairment of the right ankle complex. There is significant muscle wasting of the right calf. With the existing measurements, from the SIRA Guidelines, Page 14, Table 17-6 (modified) there would be 0% WPI for the thigh and 4% WPI for the calf. This impairment, however, cannot be combined with impairment from reduced range of movement.
Impairment from reduced range of movement:
AMA-5 REFS
MOVEMENT
RIGHT
% RIGHT LEI
LEFT
% LEFT LEI
P 537 T 17-11
Dorsiflexion
0°
7
20°
0
Plantar flexion
30°
0
40°
0
P 537 T 17-12
Inversion
0°
5
40°
0
Eversion
0°
2
30°
0
Subtotals
14
0
From Page 527, Table 17-03, this converts to 6% WPI. Since this gives a greater value than impairment from muscle wasting, the reduced range of movement impairment is selected.
Scarring is addressed in the SIRA Guidelines, Page 74, Table 14.1. With the described features of the two scars on the medial and lateral side of his right ankle, the best fit analysis would give 1% WPI.”
The MA made brief comment about the opinions of the other experts as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
Both Specialist Orthopaedic Surgeons, Dr James Bodel in his reports of 22/10/20 and 01/03/21, and Dr James Vote in his report of 24/02/22 assess 2% for the scarring. With great respect, I am persuaded that 1% is more appropriate.
Dr Bodel has described a reduced range of movement of the right ankle. No impairment from this has been calculated although if it had been calculated, this would have given a whole person impairment of 7% which is relatively close to my findings.
Dr James Vote gives a whole person impairment of 8% from Table 17-33 on Page 547 of AMA-5. I am unable to identify how this has been calculated. It is unfortunately not described in Dr Vote’s report.”
The appellant’s appeal is based on the MA’s failure to reference the report of Dr Guirgis. The MA has indicated he considered all of the documents included in the referral.
A MA does not have to refer to each piece of evidence. The appellant refers to Dr Guirgis report as a critical piece of evidence.
In Dr Guirgis’ report dated 12 November 2020, he provided what he referred to as a “tentative impairment assessment”. He assessed as follows:
“• According to Table 17-33, Page 547 – Impairment Estimates for Certain Lower extremity Impairments: ‘intra-articular fracture with displacement’ = 20% Lower extremity impairment.
· According to Ch 17 table 17-31, page 541 - Impairments based on chondral loss -Ankle Grade III chondral loss = 20% lower extremity impairment
· Combine 20 and 20 = 36% lower extremity impairment =14% whole person impairment
· Combine with 2% for scarring+ 16% whole person impairment”.
The assessment by Dr Guirgis is plainly in error in circumstances where he has assessed impairment on the basis of a fracture with displacement. The radiological investigations to which the MA has had proper regard show that the fracture has been anatomically united using internal fixation devices. This means it is not displaced and cannot be rated for impairment based on displacement which is how Dr Guirgis rated the impairment. He also gave an impairment rating based on chondral loss when in fact there is no radiological evidence of chondral loss. Chondral loss can only be assessed on the basis of radiological evidence. The guides do not permit a diagnosis based estimate to be combined with impairment from Range of Movement (ROM). Here the MA has correctly assessed impairment on the basis of loss of ROM and the Appeal Panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 August 2022 should be confirmed.
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