Adam v Multiglaze Pty Ltd
[2025] NSWPICMP 46
•23 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Adam v Multiglaze Pty Ltd [2025] NSWPICMP 46 |
| APPELLANT: | Adel Adam |
| RESPONDENT: | Multiglaze Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 23 January 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant worker alleged error by Medical Assessor by failing to assess right lower extremity (knee) despite that body part being referred for assessment, and by failing to set out a proper explanation for assessment of scarring (TEMSKI); Held – error found; re-examination necessary; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 October 2024 the appellant, Adel Adam, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin Mitchell, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
30 September 2024.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, 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 (the 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
Mr Adam sustained a laceration to his lower left leg on 28 February 2019 from a falling sheet of glass which he was required to deliver to a school in Ashfield.
Mr Adam was taken by ambulance to Royal Prince Alfred Hospital, but there were delays in arranging surgery, and Mr Adam ultimately underwent debridement surgery at Liverpool Hospital on 3 March 2019.
Mr Adam has made a claim for 24% whole person impairment (WPI) as a result of the injury sustained on 28 February 2019, which is based upon an assessment made by Dr Bodel, orthopaedic surgeon, in a report dated 31 May 2022 and which comprises 8% WPI of the left lower extremity due to the injury, 2% WPI for scarring, 7% WPI of the lumbar spine as a consequential condition, 4% WPI of the right knee as a consequential condition, and 6% WPI of the right shoulder as a consequential condition.
A/Prof Courtenay, orthopaedic surgeon, has provided a report at the request of the respondent dated 9 October 2023, which assesses Mr Adam as having 7% WPI as a result of the injury sustained on 28 February 2019, which is made up of 4% WPI of the lower left extremity and 3% for scarring.
Consent Orders were entered into between the parties on 6 August 2024 wherein there was an award for the respondent with respect to the claim of an injury to, or consequential condition in, the right upper extremity (shoulder). The following body parts were referred for assessment for WPI as a result of the injury sustained by Mr Adam on 28 February 2019:
· left lower extremity (ankle and peroneal nerve);
· lumbar spine (consequential condition);
· right lower extremity (knee) (consequential condition), and
· TEMSKI scarring.
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.
Medical Assessment Certificate
The Medical Assessor examined Mr Adam on 21 August 2024 and provided a MAC on
30 September 2024.The Medical Assessor set out the body parts referred for assessment at the beginning of the MAC:
“Left lower extremity (ankle and peroneal nerve), lumbar spine (consequential condition), right lower extremity (knee) (consequential condition), scarring (TEMSKI).”
The Medical Assessor assessed Mr Adam as having 4% WPI of the left lower leg, 2% WPI for scarring, and 0% WPI of the lumbar spine.
However, the Medical Assessor did not make any assessment of WPI of the right knee and made no findings on examination of the right knee.
The Medical Assessor does make an assessment of 2% WPI of the right shoulder, but there is an award in favour of the respondent for that body part and the right upper extremity is not included in the body parts which are listed for referral for assessment.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions
Mr Adam submits that there is no assessment of WPI of the right knee despite the Consent Orders making it clear that the right lower extremity (knee) as a consequential condition was to be assessed for WPI.
Mr Adam submits that the Medical Assessor did not provide any explanation for the assessment of 2% WPI in accordance with the TEMSKI scale. He points out that there is little reference to scarring in the MAC.
The respondent’s submissions
The respondent concedes that there is an error in the Medical Assessor not assessing the right knee for WPI. It submits that the Medical Assessor inadvertently assessed the right shoulder when the right knee should have been assessed. Furthermore, the right shoulder should not have been assessed because there was an award in favour of the respondent for that body part.
In regard to the WPI assessment of scarring made by the Medical Assessor, the respondent refers to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 (Wingfoot) to submit that a Medical Assessor is required to disclose an actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law, but those reasons need not be expansive.
The respondent acknowledges that the Medical Assessor does not necessarily set out how he has allocated 2% WPI for scarring, but he has made findings on examination which are in relation to scarring on page 3 of the MAC:
“There was loss of muscle bulk in the lower leg and a consequential defect over the proximal aspect of the tibialis anterior muscle and a defect in the overlying fascia noted during muscle contraction.”
The respondent also points out that the assessment of 2% WPI for scarring is the same as the assessment made by Dr Bodel, which is the assessment Mr Adam has relied upon for his claim for lump sum compensation.
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 agrees with the submissions made by Mr Adam and the respondent that there is a demonstrable error in the failure by the Medical Assessor to examine and assess the right lower extremity (knee), despite that body part being referred for an assessment of WPI.
The Appeal Panel also considers there is a demonstrable error in the assessment of WPI for scarring because the MAC does not include any description of the scarring, presumably to the lower left leg. The Medical Assessor does not provide any explanation as to how he arrived at the assessment of 2% WPI of the skin, having regard to the criteria set out in Table 14.1 of the Guidelines.
It was therefore determined that it was necessary for Mr Adam to undergo a re-examination.
THE RE-EXAMINATION
Medical Assessor Gregory McGroder conducted an examination on 16 January 2025 and provided the following report to the Appeal Panel:
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W23516/24 |
Appellant: | Adel Adam |
Respondent: | Multiglaze Pty Ltd |
Date of Determination: | 16 January 2025 |
Examination Conducted By: | Gregory McGroder |
Date of Examination: | 16 January 2025 |
The workers medical history, where it differs from previous records
Mr Adam had only worked as a truck driver for a matter of days with Multiglaze before he sustained his injury. He hasn’t worked since that time and he is now on a disability support pension.
As noted in the previous history there was a significant injury to his left leg and he has been left with significant nerve deficit and weakness in the left leg.
He said that as a result of his left leg injury he wouldn’t take any weight on his left leg and subsequently he has developed secondary low back pain and right knee pain. He said that because he cannot sleep on his left side he has also developed right shoulder pain.
In specific regard to his right knee, he said that the pain there came on gradually because he was taking all the weight on that side and he said that the pain became particularly significant some 18 months ago. He has basically been managed by his treating GP, Dr Kako. He had been referred to Dr Al Muderis and he organised an x-ray of the knee in December 2021 which suggested a slight effusion. A MRI organised by his GP in April 2022 demonstrated some mucoid change in the medial meniscus but no meniscal tear and basically apart from a small effusion the knee MRI was normal.
He said that he has been treated with physiotherapy and he also had a cortisone injection into the knee organised by Dr Manohar, Pain Specialist.
He said that he has low grade pain in his right knee, even at rest, and the pain radiates upwards towards his hip. The pain becomes worse when he weight-bears. He said that there is an area of tenderness just below the knee joint on the inside of the knee. He has difficulty squatting and kneeling. He has difficulty with stairs, both going up and down. He feels as though he has a reasonable range of movement.
Additional history since the original Medical Assessment Certificate was performed
There is no additional history.
Findings on clinical examination
He presented with a Canadian crutch which he held in his left arm. He walked with a significant limp favouring his left leg. I couldn’t detect any difference in circumference of the right and left thigh measured 10cm suprapatellar which was 49cm bilaterally. The left calf was wasted 1cm in circumference relative to the right at 36cm compared to 37cm.
There was significant scarring affecting the posterolateral aspect of the left leg just below the knee. The scarring was in a number of ‘Z’ shapes, the most proximal of these was a 3.5cm obliquely sloping scar which adjoined a vertical 8cm scar. This then branched medially for 3.4cm and laterally for 9cm. From the mid-point of the lateral scar there was a further 5cm extension with a smaller 4cm extension extending laterally from this scar. It was noted that the skin around the scarring was dry. There was pigmentation in the various scars, particularly hyperpigmentation around the scarring and hypopigmentation in the scarring centrally. The 8cm vertical scar had a contour defect superiorly and the junction of the inferior scars demonstrated some adherence. There was tenderness over the length of the scarring but there was no positive tinnelling.
With regard to the right knee, he demonstrated full extension and flexion to 130 degrees. There was no effusion. There was no instability. McMurray’s Test was negative. The only area of tenderness was a point on the upper-mid tibial area but there was no swelling or deficit at the area of tenderness.
Results of any additional investigations since the original Medical Assessment Certificate
21 December 2021 – X-Ray Bilateral Knees
There is mild reduction in the medial compartment joint spaces of both knees. The lateral compartment and patellofemoral compartments are preserved bilaterally. There is minimal right knee joint effusion. No definite left knee joint effusion.
23 April 2022 – MRI Right Knee
There is mucoid change in the posterior horn of the medial meniscus but no meniscal tear. The cruciate and collateral ligaments are intact. Small knee joint effusion and minor grade 2 chondrosis in the medial compartment.
FINDINGS AND REASONS
The Appeal Panel considers that the examination undertaken by Medical Assessor McGroder was conducted in a thorough manner.
Medical Assessor McGroder found a full range of movement and no instability of the right knee on his examination of Mr Adam.
The Appeal Panel notes there are numerous medical reports provided to the Commission, but the only doctor to have found any restriction of movement of the right knee is Dr Bodel, who found some lack of extension. Medical Assessor McGroder found full extension and flexion of the right knee.
The Appeal Panel therefore accepts the assessment made by Medical Assessor McGroder that Mr Adam has 0% WPI of the right lower extremity.
Medical Assessor McGroder has recorded extensive details of the scarring to the left leg below the knee. The length of the scars extends over a considerable portion of the left leg below the knee.
The Appeal Panel therefore agrees with the assessment made by Dr McGroder that 3% WPI for scarring is more appropriate than the 2% WPI assessed by the Medical Assessor. The assessment by the Medical Assessor did not contain the extensive details recorded by
Medical Assessor McGroder.For these reasons, the Appeal Panel has determined that the MAC issued on
30 September 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W23516/24 |
Applicant: | Adel Adam |
Respondent: | Multiglaze Pty Ltd |
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 Medical Assessor Robin Mitchell 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 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. Lumbar Spine | 28/2/19 | Chapter 4 Pages 26-33 | Chapter 15 Page 384 Table 15.3 | 0% | N/A | 0% |
| 2. Left Lower Extremity | 28/2/19 | Chapter 3 Pages 16-25 | Page 530 Table 17.6 Page 552 Table 17.37 | 4% | Nil | 4% |
| 3. Right Lower Extremity | 28/2/19 | Chapter 3 Pages 16-25 | Page 530 Table 17.6 Page 552 Table 17.37 | 0% | N/A | 0% |
| 4. Scarring | 28/2/19 | TEMSKI | - | 3% | Nil | 3% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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