Zveglic v Djs Qualicoaters Pty Ltd
[2021] NSWPICMP 62
•28 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zveglic v DJS Qualicoaters Pty Ltd [2021] NSWPICMP 62 |
| APPELLANT: | Andrew David Zveglic |
| RESPONDENT: | DJS Qualicoaters Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Dr Tommasino Mastroianni Dr John Brian Stephenson |
| DATE OF DECISION: | 28 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 3% for injury where 17 year old worker punched a wall; report by medico-legal expert critical of MAC rejected; Topic v Department, Aging, Disability and Homecare applied; submissions regarding examination by Medical Assessor rejected as being speculative and unsupported; submissions regarding scarring no more than cavilling over an opinion about which reasonable minds might differ (1% v 2%); Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 October 2020 Andrew David Zveglic, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, an Approved Medical Specialist (now Medical Assessor (MA)) by virtue of the introduction of the Personal Injury Commission), who issued a Medical Assessment Certificate (MAC) on 17 September 2020.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 17 August 2020 a delegate referred this matter to an MA for an assessment of WPI caused by injury to the right upper extremity and scarring on 4 October 2017. Mr Zveglic was a 17 year old spray painter at the time of his injury. The circumstances of the injury were somewhat unusual in that Mr Zveglic had had an argument with a colleague and in his frustration punched the wall as he walked out.
He was transferred to Bowral Hospital where Dr Leicester operated on him the following day with an internal fixation of the grossly displaced 5th metacarpal shaft fracture, and also treated the adjacent 4th metacarpal non-operatively.
In December 2018, the implant was removed from the 5th metacarpal.
The MA assessed a 2% WPI and 1% in relation to the scarring giving a combined value of 3%.
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 worker requested a re-examination by a MA who was a member of the Appeal Panel however, no re-examination was required as no demonstrable error was established.
Fresh evidence
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant sought to admit a further report of Dr WGD Patrick, who had been retained as Mr Zveglic’s medico-legal expert, and had reported on 22 August 2019 that Mr Zveglic had suffered an 11% WPI due to the injury to the right upper extremity (hand, wrist) and 2% WPI in relation to the scarring which amounted to a combined total of 13%.
In Rajka (Rachel) Topic v Department, Aging, Disability and Homecare[1] the Appeal Panel said:[2]
“…..The setting up of a scheme by the legislation in which the opinion of the [MA] is held to be binding pursuant to the provisions of s. 326 of the 1998 Act is designed to make the MA, through his/her training under the auspices of the WorkCover Authority, the final arbiter of the various and usually differing opinions of the medical specialists,….”
[1] [2009] NSWWCCMA 202 (Topic).
[2] At [26].
The only avenue for a disappointed litigant with regard to an opinion by an MA pursuant to
s 327 is to appeal to a Medical Appeal Panel. Whilst provision is made in s 328(3) of the 1998 Act for fresh evidence to be given, an opinion by a medico-legal specialist whose report has already been rejected by the MA is not admissible as fresh evidence to simply cavil with the reasons given by the MA. If such a policy were allowed then the respondent’s medico-legal expert would no doubt then lodge a further report as to why the MAC was correct and the whole purpose of s 326 of the 1998 Act, which provides that the MAC is “conclusively presumed to be correct,” would be subverted.Dr Patrick’s report of 14 October 2020 was a response to the opinion of the MA and is accordingly rejected.
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.
Medical Assessment Certificate
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
Both parties made written submissions which 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 issues raised in the appeal were that the MA had fallen into error in:
· assessing the right upper extremity, and
· assessing the scarring
The MAC
Having taken the history related under Relevant Factual Background, the MA gave the following findings under physical examination[3]:
“On inspection, the scar is quite well healed, still feels a little bit sensitive when touching on the scar. There is partial loss of feeling, distal to the scar, which was on the dorsum on the right 5th metacarpal bone all the way to the fingertip. The loss of feeling is partial, only affecting the dorsum of the little finger on the ulnar side, not on the radial side. The finger have [sic] some loss of movement and when making a grip, we can see the 4th metacarpal head is a bit receding because there is mild angulation of the 4th metacarpal fracture upon healing.
There is full range of movement in the shoulder, elbow and the wrist. Symmetrical on both sides. On the right hand, the little finger and ring finger have minor loss of movement in the MCP joint. On the normal fingers, we can hyperextend to 20˚ and flex to 90˚ to 100˚. On the right hand, the little finger have a range of movement of +10˚ to 100˚. On the ring finger, it is 0˚ to 90˚. There is full range of movement in all the other fingers, including the DIP and PIP joint of all the fingers.”
[3] Appeal papers page 27.
In his Summary the MA said[4]:
“…..He is now left with some loss of sensation in the little finger and residual pain in the scar and minor loss of movement in the MCP joint of the ring and little finger.”
[4] Appeal papers page 27.
In giving his opinion, the MA said[5]:
“I believe Andrew has reached maximum medical improvement. Injury was three years ago. He had fracture union about two months after the injury on the x-ray. He had satisfactory functional outcome. He is left with problem, mainly numbness on the ulnar side of the little finger, distal to the cut, probably with damages of the dorsal digital nerves. There is some discomfort relating to the scar and minor stiffness relating to the MCP joint movement of the ring and little finger, mainly in terms of some loss of extension.”
[5] Appeal papers page 28.
The MA gave an explanation of his calculations that was consistent with the Guidelines to which he referred and considered the opinions of the two medico-legal specialists retained by Mr Zveglic and the respondent. Whilst agreeing with the report of Dr Panjratan that the finger movements were very good and consistent with the patient’s history, the MA said[6]:
“Certainly, this is not the case as suggested by Dr Patrick because his report mentioned stiffness in both fingers in both the MCP as well as the PIP joint. I cannot agree with Dr Patrick in relation to the stiffness of the right wrist movement because the patient never complained about stiffness over there.
In relation to the sensory loss, patient only complained loss of sensation on the ulnar half of the dorsum of the little finger. It is not in the ring finger because surgery was not done there. The cut was only on the little finger, which may cut some of the dorsal digital nerve causing sensory loss only in the little finger, which is also another point I cannot agree with Dr Panjragam [sic – Panjratan] because he assessed some sensory loss to the ring finger as well which I cannot agree. That also explains the difference of my assessment, especially with Dr Patrick.”
[6] Appeal papers page 29.
Whilst the MA agreed generally with Dr Panjratan, he thought that Mr Zveglic would have lost some extension in the MCP joint for both the ring and little finger. He thought the ring finger was more affected because the fracture healed with a certain degree of anterior bowing, so the malunion would probably cause more loss of movement compared to the little finger. However, he agreed with Dr Panjratan that the finger movements were very good and that it corresponded with Mr Zveglic’s history to the MA.
SUBMISSIONS
Appellant
Right upper extremity
The appellant submitted that the impact the accident had caused to Mr Zveglic’s earning capacity and that the prognosis regarding his injury was not properly appreciated by the MA. Mr Zveglic had “digital deficits and ongoing stiffness at the right wrist as well as the ring and little fingers.” These limitations, it was asserted, would be lifelong.
Reference was made to the above findings by the MA on physical examination. The appellant submitted that they were deficient because there was no mention of wasting on the medial dorsal interossei.
A further error was that the MA had allegedly failed to properly document the ring and little finger measurements, and the active range of motion of the right wrist. Those measurements had not been recorded and the appellant submitted that it was unclear whether the MA had conducted such measurements.
Scarring
With regard to the scarring assessment, it was submitted that the MA had made a demonstrable error because “the surgical scar on the Appellant’s right upper extremity evidences a marked contour alteration and significant cosmetic deformity”.
Further error was alleged because the MA made no comment as to whether Mr Zveglic was conscious of the scar. The appellant observed that on 22 August 2019, Dr Patrick noted that Mr Zveglic was then conscious of the scar, and that Dr Patrick had reported a marked colour contrast with the surrounding skin (significantly reddened).
These findings, it was submitted, should have resulted in a finding of 2% WPI.
Respondent
The respondent submitted that the MA had taken a detailed history, reviewed the documents and carried out a detailed examination. The MA had provided precise reasons in his assessments and had taken into consideration the reports of Dr Vijay Panjratan and
Dr Patrick in forming his opinion. There was accordingly no error demonstrated and the MAC should be confirmed.
Discussion
The MA has conducted a thorough and well explained MAC. We did not see any relevance in the appellant’s submissions as to the “impact” Mr Zveglic’s unfortunate injury. There is of course no entitlement to compensation for pain and suffering.
We note that the MA was said to have fallen into error because he failed to note wasting on the medial dorsal interossei. This submission pre-supposed firstly that there was such wasting, secondly, that the MA had not noticed it, and thirdly that such wasting was relevant to the MA’s assessment. We were not referred to any material that established the first two propositions, and the submission did not explain the relevance in any event.
Further, it was alleged that the MA had not properly documented the measurements he took of the ring and little fingers, nor had he properly measured the active range of motion of the right wrist. Again, this submission was made without any factual basis. It was simply a speculation that because no measurements were recorded, they might have been inaccurate.
Finally, the appellant submitted that it was “unclear” whether the MA had even conducted such measurements. Again, there was no support for this submission, which was also based on mere speculation that because no measurements were recorded, none had been taken.
There is a presumption of regularity which attends administrative action, including that of medical assessors.[7] Presumptions are of course rebuttable, but there has been nothing put before the Panel that would support such a rebuttal.
[7] Jones v The Registrar WCC[2010] NSWSC 481 per James J at [36] and [50].
As to the submissions regarding Mr Zveglic’s scarring, the appellant submitted that there was a marked contour alteration, and significant cosmetic deformity. That description did not reflect the examination finding by the MA, who found that the scar was “quite well healed, and still feels a little bit sensitive to touching...”
The appellant submitted that the findings by Dr Patrick on 22 August 2019 were relevant, a proposition we find of little assistance when considering the evaluation of WPI for scarring. We assume that the submissions of the appellant were made with regard to the TEMSKI scale provided in the Guides[8]. A MA has a discretion in making such an assessment, as the footnote to the Table states:
“This Table uses the principle of ‘best fit.’ You should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment…”.
[8] Guides page 74, Table 14.1.
Moreover, we note that Dr Patrick found in his report of 22 August 2019 that there was “no definite adherence”.[9] Although many of the criteria within Table 14.1 are common to a number of categories, there are only three to which a finding of ‘no adherence’ apply. Those categories provide for either 0%, 1% or 2% WPI.
[9] Appeal papers page 52.
The MA had the advantage of seeing and touching the scarring. Where a rating is discretionary it must be shown that some error has been made to indicate that that the discretion has not been exercised lawfully. No such error has been identified, and the appellant’s argument simply seeks to cavil with an assessment upon which reasonable minds might differ.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 September 2020 should be confirmed.
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