Ali v Form Group NSW Pty Ltd
[2024] NSWPICMP 434
•8 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ali v Form Group NSW Pty Ltd [2024] NSWPICMP 434 |
| APPELLANT: | Ali Ali |
| RESPONDENT: | Form Group NSW Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Tim Anderson |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; fall from scaffolding; Medical Assessor failed to have regard to amended referral and failed to assess some body parts; re-examination; lack of reasoning to explain difference from history in respect of some others; section 323 deduction regarding digestive tract; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 March 2024 Ali Ali lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Philip Truskett, who issued a Medical Assessment Certificate (MAC) on 27 February 2024.
Mr Ali 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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 Ali was employed by Form Group New South Wales Pty Ltd (Form Group) as a formworker. He was injured on 12 June 2017 when he fell 1.8m from scaffolding on a building site, landing on his right side.
The parties agreed that Mr Ali suffered injuries to his cervical spine, right upper extremity (shoulder), right lower extremity (knee, ankle and hindfoot) and scarring. A Member of the Personal Injury Commission (Commission) determined that he suffered a consequential condition in his upper and lower gastrointestinal tracts.
The Medical Assessor assessed 0% whole person impairment (WPI) in respect of Mr Ali’s cervical spine, 6% WPI in respect of his right upper extremity (shoulder), 0% WPI for scarring and for his right lower extremity (knee), 3% for his upper digestive tract from which the Medical Assessor deducted 30% under s 323 of the 1998 Act and 0% for the lower digestive tract. The total WPI was 8%.
PRELIMINARY REVIEW
We 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, we determined that Mr Ali should undergo a further medical examination because the Medical Assessor failed to examine his right ankle and hindfoot. The Medical Assessor’s assessment of Mr Ali’s cervical spine was incongruous, when compared with his examination findings and the evidence in the file. His assessment of Mr Ali’s right knee was at odds with the duration of his symptoms.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Medical Assessor Pillemer of the Appeal Panel conducted an examination of the worker on 18 June 2024 and reported to us. The report forms part of these reasons.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Ali submitted that the Medical Assessor failed to assess his right ankle and hindfoot and failed to assess the relevant scarring to that area. He said that the Medical Assessor did not properly assess his right knee because it was not appropriate to use his left leg as a baseline and determined that his right knee condition was degenerative. Mr Ali said that the Medical Assessor did not give reasons for assessing the scar to his right leg at 0%.
With respect to his cervical spine, Mr Ali said that the Medical Assessor failed to set out the range of movement observed and failed to comment on the results of investigations. He said that the Medical Assessor should have assessed him in DRE cervical category II. Mr Ali said that the Medical Assessor failed to provide reasons for the assessment of his gastrointestinal tract.
Mr Ali did not make any submissions in respect of the Medical Assessor’s assessment of his right upper extremity (shoulder) or his lower digestive tract.
In reply, Form Group noted that assessment of Mr Ali’s right ankle and hindfoot was added to the referral on 11 January 2024. It agreed that it was appropriate that Mr Ali’s right ankle and hindfoot be assessed.
In respect of the remainder of the appeal, Form Group said that the Medical Assessor had provided sufficient reasons to show his path of reasoning. It said that it was open to the Medical Assessor to apply a 30% deduction in respect of the upper gastrointestinal tract, based on Mr Ali’s own gastroenterologist’s findings.
With respect to Mr Ali’s right knee, Form Group conceded that there was a typographical error in the Medical Assessor’s reference to the fracture of Mr Ali’s right tibia and fibula but there was otherwise no error in his assessment. It said that the Medical Assessor’s assessment of scarring was open to him.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
Our reading of the file shows that Mr Ali’s claim has been the subject of a determination in 2020 that he did not suffer an injury to his lumbar spine which was upheld on appeal later that year. Mr Ali’s statements predate those decisions as does the report of Dr Dias, which provides the basis of most of his claim for permanent impairment. Dr Dias’ report was prepared only about 18 months after the injury. Further proceedings were discontinued in 2021.
Form Group disputed that Mr Ali suffered a consequential condition in his upper and lower digestive tract, resulting in the current proceedings being commenced in 2023 and resolved by a determination in September 2023. Most of the evidence in the Application to Resolve a Dispute (with the exception of Dr Kordian’s report) was prepared in or before 2021.
We make those comments to highlight the elapse of time since the previous assessments of impairment were made, during which some improvement in the extent of impairment would be anticipated.
Right ankle and hindfoot
The President’s delegate’s decision informs us that the amended referral was provided to the Medical Assessor. The only references in the MAC to Mr Ali’s right ankle and hindfoot was that they were “not assessable today”.
The Medical Assessor’s failure to examine Mr Ali’s right ankle and hindfoot was an error, necessitating re-examination. The results of the examination are set out in Medical Assessor Pillemer’s attached report.
Mr Ali’s right ankle and hindfoot were assessed using Table 17-11 of AMA. Medical Assessor Pillemer noted that Mr Ali walked with a mild limp and had only a mild restriction of movement of his ankle. Mr Ali’s plantar flexion capability was 30° which results in no assessable impairment. His range of extension to 7° results in 7% lower extremity impairment (LEI).
Medical Assessor Pillemer assessed Mr Ali’s hindfoot or subtalar joint and observed that the range of motion was the same as on the contralateral, uninjured side. Under paragraph 3.17 of the Guidelines, no impairment is assessable.
We note that Dr Dias made a higher assessment in respect of Mr Ali’s ankle and hindfoot. Dr Powell, who examined Mr Ali three months after Dr Dias, said that his examination findings did not attract any impairment rating, suggesting an improvement since Dr Dias’ examination.
Medical Assessor Pillemer’s findings in respect of Mr Ali’s hindfoot indicate that there has been some improvement in the ensuing four and a half years, as would be anticipated.
Right knee
The Medical Assessor recorded that Mr Ali was admitted to hospital and:
“He was taken to the operating theatre on 22 June 2017 under the care of Dr Keeley. He underwent a right tibial nail through an anterior incision medial to the patellar tendon under imaging control. The tibia was in satisfactory position at the end of the procedure. His fracture was described as a grade 1 open tib/fib fracture. This described a wound that was less than 1cm in size on the skin, and the wound was clean. There was no associated vascular injury. He was treated with intravenous antibiotics in addition.”
With respect to subsequent treatment he said:
“Mr Ali also noted right knee pain. He attended Dr Herald on 23 July 2018 in relation to this. At that time he was noted to have some medial joint line pain and tenderness in the retropatellar region. He had a full range of knee movement and no effusion.
An MRI scan of his knee was performed on 4 October 2017, reported by Dr Shaun Quigley, which described oedema in the area of Hoffa’s fat pad, with the ACL and PCL being intact. There was a horizontal cleavage tear in the posterior horn of the medial meniscus. The lateral meniscus was intact.
Dr Herald diagnosed Hoffa pad adhesions and medial meniscal tear. He suggested arthroscopy, but Mr Ali preferred to continue with physiotherapy to his knee.
Mr Ali subsequently underwent a cortisone injection to his right knee. From a letter by Dr Herald dated 11 March 2019, he said this provided a 50% improvement.”
The Medical Assessor wrote:
“Mr Ali has pain in his knee all the time. The pain is within the knee and behind the patella and on both sides. He would score this pain as 8/10 and it will score 10/10 most days.
Pain is made worse with walking and becomes severe about once a week. The knee will lock every 2 days and it will give way on occasion. He states that he has fallen on six occasions.”
Describing Mr Ali’s social activities and activities of daily living, the Medical Assessor said that Mr Ali can walk on the flat for 40 minutes but is limited by right knee pain.
The Medical Assessor said that there was a full range of movement of both of Mr Ali’s knees with flexion to 130° and 0° of extension. Anterior and posterior ligaments were intact. Relying on and MRI scan dated 4 October 2017, the Medical Assessor said that the diagnosis was a horizontal meniscal tear of the medial meniscus which is often a degenerative finding. The Medical Assessor assessed 0% WPI because the knee was stable and there was a full range of motion.
The Medical Assessor noted that Mr Ali had suffered a fracture of his left tibia in 2005. Mr Ali said that he suffered an injury to his left knee and it was therefore inappropriate for the Medical Assessor to use it as a baseline for the range of movement. Dr Dias recorded in his report dated that the injury was in 2002 and that Mr Ali did not experience any symptoms in his left leg and noted that Mr Ali could flex his left knee to 130° and extend to 0°. Mr Ali did not say in his statements that he had any limitations with respect to his left leg. The submission that Mr Ali’s left leg could not be used as a baseline is not supported by the evidence.
The medical evidence in the file shows that Mr Ali has complained of right knee pain since the injury, particularly near the insertion point of the intermedullary nail. Dr Powell noted in his report dated 16 May 2019 that it is not uncommon for patients who have undergone that surgery to continue to suffer knee symptoms. On 23 July 2018 Dr Herald proposed surgery to remove the nail and perform an arthroscopy. Mr Ali was treated by Dr Nazha with radiofrequency ablation of the genicular nerve in 2021.
The history that the Medical Assessor obtained about Mr Ali’s right knee - both as to treatment and the longevity of his symptoms - is at odds with his finding that there was no impairment. He noted that a meniscal tear observed can be degenerative but did not otherwise explain how his findings fitted with the history of symptoms and treatment. In the absence of an explanation, re-examination was appropriate.
Medical Assessor Pillemer found that there was a restriction of movement of Mr Ali’s right knee. Mr Ali was able to flex his left knee to 115° which, under Table 17-10 of AMA 5 does not result in assessable impairment. Mr Ali lacked the last 10° of extension, resulting in 20% LEI.
When the assessment for Mr Ali’s right knee is combined with the assessment for the right ankle results in 26% LEI or 10% WPI.
Cervical spine
The Medical Assessor recorded that, when Mr Ali was in hospital after the injury, observations showed no midline neck tenderness and there was a full range of movement. He said:
“Due to persisting neck pain, Mr Ali was referred to Dr Raoul Pope (Neurosurgeon). He attended him on 20 February 2019. Dr Pope described a CT SPECT bone scan which showed no uptake in the facet joints or in the endplates, and there was no evidence of inflammatory arthropathy.
Dr Pope described an MRI scan that showed a C4/5 disc herniation, more towards the left than the right, and a bulging of the disc at C5/6 centrally. Mr Ali described bilateral arm pain, worse on the right.
Dr Pope recommended a two-level anterior cervical discectomy and fusion but referred Mr Ali to Dr Alan Nazha (Pain Physician) for a second opinion. Mr Ali did not proceed to surgery to his neck.
Mr Ali was assessed by Dr Alan Nazha (Pain Specialist) on 15 April 2019. From his letter to Dr Pope, Dr Nazha described Mr Ali’s injury and indicated that he attended because of his neck and right shoulder pain, as well as right leg pain. He indicated that he had been previously assessed by Dr Shetty (Pain Specialist). When assessing his neck, Dr Nazha described mechanical neck pain that radiated to the posterior scapula as well as the posterior upper arm and did not describe significant radicular features. When examined, Mr Ali had an adequate range of neck movement. There were no neurological signs.”
Describing Mr Ali’s present symptoms, the Medical Assessor said:
“Mr Ali has pain in his neck all the time. This is situated to the right base of his neck. He would score this pain as 7/10 most of the time, and will exacerbate to 10/10 most days, which will occur with activity and it is worse in the morning. Pain is relieved by medication and physiotherapy.
Pain will radiate to the top of his right shoulder and scapula. This is a non-radicular distribution.”
On examination the Medical Assessor observed:
“On examining his neck, there was a good range of neck movement; neck flexion and extension was normal, lateral flexion to the left and right was normal, and rotation to the left and right was normal.
Power, tone, and sensation in both upper limbs were normal.
There was no wasting of the muscles of the upper limbs were normal. Both arms measured 28cm in circumference, 10cm above the olecranon. Both forearms measured 26cm at their widest point.
There was no cervical muscle guarding.
Biceps, triceps, and supinator jerks were present and equal.”
The Medical Assessor diagnosed a soft tissue injury of Mr Ali’s cervical spine. He said:
“A 0% whole person impairment is assigned as there is no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury.”
Dr Dias had examined Mr Ali at the request of his solicitors and reported on 27 February 2019. He diagnosed persistent aggravation of degenerative cervical spondylosis secondary to acute musculoligamentous strain. He said:
“With respect to Mr Ali's cervical spine condition, Mr Ali qualifies for the DRE Cervical Category II, as per Table 15-5 in Chapter 15 of the AMA-5 Guides. Clinical findings of Mr Ali's cervical spine include muscular guarding and asymmetric loss of range of movement, therefore Mr Ali qualifies for the DRE Cervical Category II and a base whole person impairment rating of 5%. From his impairment rating of 5%, a deductable [sic] proportion of one tenth should be subtracted due to Mr Ali's pre-existing degenerative changes in his cervical spine, as per the New South Wales Workers' Compensation Guidelines, 4th Edition. Deducting one tenth from 5% leaves a residual WPI Rating of 4.5%. In summary, Mr Ali has a Cervical Spine Whole Person Impairment Rating of 5%”
Dr Powell examined Mr Ali for Form Group in 2019, noting that Mr Ali had complained of neck symptoms from the time of the injury. He diagnosed a musculoligamentous injury of Mr Ali’s cervical spine with aggravation of underlying disc disease at C4/5 and C5/6. Dr Powell assessed permanent impairment, saying:
“Table 15-5 on page 392 I assign a DRE cervical category II with a 7% whole person impairment. This is on the basis of a specific incident, supported by appropriate imaging studies, with non-verifiable radicular symptoms and a moderate disruption of activities of daily living. Workcover Guides allow for one-tenth deduction for the presence of pre-existing pathology which I believe is relevant in this case. With rounding this results in a 6% WPI.”
Again, when the history and the results of other examinations did not align with his observations, it was necessary for the Medical Assessor to provide more detailed reasons for assessing 0% WPI.
On re-examination, Medical Assessor Pillemer observed asymmetry of movement would place Mr Ali in DRE cervical category II and result in an assessment of 5% WPI. The injury does impact on Mr Ali’s activities of daily living and we consider it appropriate to allow 1% and make a total assessment of 6% WPI.
Scarring
The Medical Assessor said:
“Mr Ali does not like the appearance of his scar on his right knee. I also note that he has a large scar on his left knee from previous tibial fracture.”
The Medical Assessor described the appearance of the scars:
“On examining his lower limbs, there was a 9cm scar on the right lower limb just below his patella. It was of good colour match. There was no hypertrophy. There was no tethering. There were no suture marks.
On the lower third of his left tibia, however, there was a 19cm scar which was a poor colour match with areas of dark colour. There were suture marks and some hypertrophy This was the result of his motorbike accident.”
Assessing 0% in respect of the scar on Mr Ali’s right knee the Medical Assessor said:
“Mr Ali is conscious of the scarring. There is good colour match. There are no staple marks. Anatomic location is not clearly visible. There is no contour defect and no effect on ADLs. This is the majority of Class I, with 0% whole person impairment.”
Based on the Medical Assessor’s observations, there was no error in his assessment of Mr Ali’s right knee scar. The Medical Assessor considered all of the criteria in Table 14.1 of the Guidelines.
Medical Assessor Pillemer agreed with the Medical Assessor’s assessment and did not observe any assessable scarring of Mr Ali’s ankle.
Digestive tract
The Medical Assessor wrote:
“In relation to his gastrointestinal tract, Mr Ali believed that his symptoms started approximately 2 months from the time of his injury and consisted of abdominal bloat and constipation. He attended his Local Medical Officer who provided medications.
Mr Ali was eventually referred to Dr Kordian (Gastroenterologist). From his brief report dated 15 February 2023, Dr Kordian indicated that Mr Ali initially was consulted some time after 22 September 2022 (typo as stated 22 September 2023). At that time Mr Ali was complaining of epigastric pain which started a few months after his workplace injury. A gastroscopy was performed on 25 October 2022 which showed a prepyloric ulcer, with biopsy showing H. pylori gastritis. This was then treated with antibiotics.
On 9 September 2022, a further gastroscopy was performed, which showed a persisting ulcer but H. pylori was negative on histology.
Dr Kordian formed the view that Mr Ali’s peptic ulcer was due to H. pylori, stress, and medications used including non-steroidal anti-inflammatories. He planned review.
My comment: There was no evidence that H. pylori breath test has been performed.”
The Medical Assessor listed Mr Ali’s medications and said:
“I note that he does not appear to be taking a proton pump inhibitor for his gastrointestinal tract. This could be an oversight, but I am unable to comment as Mr Ali advised that this was the extent of his medications.”
Describing Mr Ali’s symptoms the Medical Assessor said:
“Upper Digestive Tract
Mr Ali has heartburn which has become worse since his injury. This will occur every 2 days and is worse with tomatoes. He has no trouble swallowing. He will get nausea, but no vomiting. He also experiences gas bloat.
He has been on a diet as his weight increased to 105kg and he now weighs about 80kg. He is therefore on a weight reduction diet.
He will experience upper abdominal pain approximately 3 minutes after eating. This takes the form of a bloat and is not burning. He believes this began after the accident.
Lower Digestive Tract
Mr Ali opens his bowels every second day. The motion is hard. His wife provides him with herbal tea to improve this. The only pain he experiences is a call to stool. He has good bowel control.”
The Medical Assessor noted that Mr Ali had previous gastroesophageal reflux but it was less severe than it is now. The Medical Assessor said:
“On examining his abdomen, there were no abdominal scars or hernias. There was vague distractible tenderness in his left upper quadrant. There was no guarding. There was no organomegaly. There were no palpable masses. There was no ascites. He did not seem anaemic or jaundiced.”
The Medical Assessor diagnosed a pre-pyloric peptic ulcer and constipation due to opiate ingestion. He said:
“The status of Mr Ali’s prepyloric ulcer is unclear. He does have a history of H. pylori infection which can be causal of this. Proof of eradication of his H. pylori infection is incomplete, as a biopsy at the site of the ulcer is insufficient. A breath test needs to be obtained as bacteria following treatment can sometimes migrate proximally.”
Assessing 2% WPI in respect of the upper digestive tract the Medical Assessor said:
“Mr Ali would be considered Class I with 0-9% impairment. This is due to anatomic alteration in the form of a prepyloric ulcer. This has minor symptoms as the predominant symptoms he complains of is reflux, which is pre-existing, and there is no anatomic loss described on endoscopy to the oesophagus. He is on no continuous treatment and he maintains good weight.
He is considered 3% based on the extent of his condition. However, a 30% deduction is made as there is evidence that he has Helicobacter pylori, which may contribute a significant component to the cause of his prepyloric ulcer. In addition, complete eradication has not been confirmed.
The other contributing factor is the non-steroidal anti-inflammatory medications in the form of Advil, which Mr Ali takes for his chronic pain.
It is opined that one-third deduction of 3% be made due to the contribution of Helicobacter, and this therefore equates to a total whole person impairment residual of 2%.”
Paragraph 16.9 of the Guidelines amends Table 6-3 of AMA 5 with respect to the effect of analgesics on the digestive tract to require that there be both symptoms and signs of digestive tract disease. The evidence in the file shows that Mr Ali now has both.
Dr Garvey assessed 0% on behalf of Form Group on 5 November 2021 because Mr Ali had not had any investigations. The notes from Mr Ali’s general practitioner show that he was treated for gastroesophageal reflux in 2013 and 2014 which led Dr Garvey to consider that any reflux was pre-existing.
The notes to which Dr Garvey referred were sparse, encompassing one consultation in 2011 and one in September 2013 and four occasions between January and November 2014. In late 2013 Mr Ali was treated for a ganglion and carpal tunnel syndrome for which he took anti-inflammatory drugs. After November 2014, there was no further reference to reflux before January 2018 when the notes in the file cease.
After the date of Dr Garvey’s examination, Mr Ali’s general practitioner referred him to Dr Kordian, who reported to Mr Ali’s solicitors on 15 February 2023. He said:
“Gastroscopy was performed on the 25th of October 2022 to investigate the cause of his pain. Gastroscopy showed a pre-pyloric ulcer with biopsies showing H.Pylorie gastritis which was treated with course of antibiotics then follow up gastroscopy in the 9th of December 2022 showed persistent of the ulcer but biopsy was negative for H.pylorie.
In my opinion Ali’s epigastric pain is likely due to gastric ulcer/gastritis which is likely caused by combination of multiple factors including H.pylorie, stress and medications used to control pain following workplace injury (Nonsteroidal Anti- Inflammatory Medications). He should continue on Somac for the next 6 months with aim to review if pain persists.”
The Medical Assessor said that the predominant symptom in Mr Ali’s upper digestive tract was reflux, which was pre-existing. While Mr Ali did suffer reflux in the past, there is no evidence that he required treatment after 2014 until after the 2017 injury. The Medical Assessor surmised that Mr Ali may still have helicobacter pylori and made a deduction of 30% from his assessment of 3% WPI because complete eradication had not been confirmed. The Medical Assessor’s assessment is speculative and does not satisfy the requirements for a deduction under s 323 of the 1998 Act.
In Ryder v Sundance Bakehouse[3] Campbell J said:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”
[3] [2015] NSWSC 526, [54].
Mr Ali suffered reflux in the past but, according to his general practitioner’s notes, did not experience it at the time of the injury or for some time before the injury. We do not consider that a deduction under s 323 is warranted in respect of the pre-existing issues in Mr Ali’s upper digestive tract. Even if it was warranted, it would be appropriate to make a one-tenth deduction because the impact of the pre-existing condition is difficult to determine. After rounding, a one-tenth deduction would have no impact on the assessment.
In respect of the lower digestive tract the Medical Assessor said:
“To qualify as Class I, 0-9% whole person impairment, there needs to be symptoms and signs of colonic / rectal disease. Mr Ali has symptoms only.
In addition, the WorkCover Guides indicate, ‘constipation is a symptom not a sign and is generally reversible. A WPI assessment of 0% applies to constipation.’
Mr Ali’s constipation, therefore, is considered 0%.”
Mr Ali did not make any submissions in respect of the assessment of the lower digestive tract. There is no evidence that Mr Ali has any relevant condition besides constipation. The Medical Assessor accurately applied paragraph 16.9 of the Guidelines. Dr Greenberg, who examined Mr Ali at the request of his solicitors, assessed permanent impairment by reference to AMA 5 only and did not have regard to the limitation in the Guidelines. The Medical Assessor’s assessment of 0% for the lower digestive tract was correct.
For these reasons, we have determined that the MAC issued on 27 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL
MatterNumber: | M1-W1478/23 |
Appellant: | ALI ALI |
Respondent: | Form Group New South Wales Pty Ltd |
ExaminationConducted By: | Roger Pillemer |
DateofExamination: Attendance: | 18 June 2024 Mr Ali’s wife attended with him today as well as an interpreter. |
1. The workers medical history, where it differs from previous records.
I read Mr Ali the symptoms as he described them to the MA, Dr P Truskett on 15 January 2024 and he agreed with the history that was taken at that time.
Please note that Mr Ali has not been back to any gainful employment since his injury and at the present time he is taking Targen as well as doing his exercises at home as instructed by the physiotherapist, and taking medication for his ‘stomach and nerves’.
2. Additional history since the original Medical Assessment Certificate was performed.
Right Knee
Mr Ali indicates discomfort in the right knee region, felt medially and laterally but more so on the medial side, and he feels symptoms are getting worse with time. He can be comfortable when he is simply at rest with his leg elevated but symptoms can go as high as 8/10. His symptoms are aggravated by excessive walking, carrying or negotiating stairs. He is aware of intermittent swelling in the knee and it has given way on him, and he has problems with stairs and tends to use a rail, and every now and then when his knee is worrying him, he will negotiate stairs one at a time. He avoids crouching and kneeling which always aggravates his symptoms.
Right Ankle
He is aware of discomfort on both sides of his right ankle region where the heads of the screws are palpable medially, slightly above the medial malleolus. Symptoms can go as high as 6- 7/10 and are aggravated by walking or when he puts pressure on his right leg. He does get some relief by resting.
He does not have any pain at the fracture site, excepting whenever it is the ‘anniversary of the fall’ when the fracture site does tend to ache for a month or so.
Cervical Spine
Mr Ali indicates discomfort being felt in the cervical region extending to the right shoulder area and down the right arm as far as his right elbow. Neck symptoms can go as high as 9/10 but tend to average 5/10, and he can be reasonably comfortable when he is simply at rest.
Right shoulder symptoms are fairly persistently present, ranging between 5-8/10, and symptoms are aggravated by lying on his right side or attempts at elevation of his right arm. Once again he can be comfortable when he is simply at rest.
Activities of Daily Living
His maximum walking time would be half an hour and then he would have to stop and rest, mainly because of his right leg. He can still drive.
He lives at home with his wife and three children, and does help with the housework but would avoid activities such as vacuuming. He does small shops only and manages with his self- care. His wife has to wash his back.
Findings on clinical examination
Mr Ali was an adult male who walked with a very slight limp on the right side and tended to keep his right foot in slight external rotation.
He showed moderate restriction of low back movement and was reluctant to walk on heels and toes.
Straight leg raising is present to 80° bilaterally, reflexes are present and equal, and there was no obvious neurological deficit in his lower limbs.
He has a satisfactory range of hip movements bilaterally and a full range of left knee movements, but does have residual restriction of right knee movements, lacking the last 10° of extension, with further flexion to 115°. The knee itself was stable and there was no fluid in the joint today. He does complain of discomfort to palpation over both joint lines, more so on the medial side.
Mr Ali does have slight restriction of ankle movements on the right with extension of 10° with his knee flexed and 4° with his knee extended, giving an average of 7° of extension. Flexion was to 30° and subtalar movements were equal to the opposite side.
The circumference of his thighs is equal as measured 10cm above his kneecaps, and his right calf is 1cm less than the left side. He is right side dominant.
Mr Ali showed some restriction of cervical movement today particularly extension, and lateral rotation to the right being more restricted than to the left.
There is a full range of left shoulder movement, but he does have residual restriction of right shoulder movement with the range being very similar to that noted by the MA at the time of his examination on 15 January 2024. He does have mild impingement present with discomfort to palpation in the subacromial region anterolaterally.
Reflexes in his upper limbs are present and equal, good grip strength was present bilaterally, and there was no neurological deficit present.
There was no wasting to circumferential measurement of the upper arms and forearms. The scar in relation to the right knee was well healed and felt to be a result of the surgery. There was no observable scarring to Mr Ali’s ankle.
Results of any additional investigations since the original Medical Assessment Certificate
Mr Ali has not had any further investigations carried out.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1478/23 |
Applicant: | Ali Ali |
Respondent: | Form Group NSW 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 Philip Truskett and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part | 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 | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 21/06/17 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 6% | nil | 6% |
| Right upper extremity (shoulder) | 21/06/17 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 6% | nil | 6% |
| Scarring | 21/06/17 | Chapter 14 Pages 73-74 | 0% | N/A | 0% | |
| Right lower extremity (knee, ankle, and hindfoot) | 21/06/17 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 10% | nil | 10% |
| Upper Digestive Tract | 21/06/17 | 3% | nil | 3% | ||
| Lower Digestive Tract | 21/06/17 | 0% | N/A | 0% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
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