Ali v IN2F Services Pty Ltd
[2025] NSWPICMP 139
•4 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ali v IN2F Services Pty Ltd [2025] NSWPICMP 139 |
| APPELLANT: | Muhammad Rajab Ali |
| RESPONDENT: | IN2F Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 4 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Assessment of the knee; Table 17-10 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); Medical Assessor provided incorrect figures of lower extremity impairment for flexion and flexion contracture; Table 17-10 of AMA 5 does not invite discretion or provide for a range for figures; Held – application of incorrect criteria; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 December 2024 the appellant, Muhammad Rajab Ali, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tommasino Mastroianni a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 September 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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
The proceedings in this matter have a somewhat complicated history, particularly in respect of the appeal process that has led to the present Appeal Panel being convened. The below procedural history of this matter is largely taken from the decision of the delegate of the President in this matter, referring the appeal to an Appeal Panel.
Mr Ali was injured at work on 28 August 2021, when he tripped at work and fell onto his right knee. This led to complications including surgery. As a result of an altered gait, he alleged that he suffered a consequential condition in his lumbar spine.
Mr Ali brought proceedings in the Commission claiming lump sum compensation. A dispute arose as to whether Mr Ali suffered a consequential condition in his lumbar spine. That issue was determined by Member Camp of the Commission, with a Certificate of Determination being issued on 28 June 2024. As a result of that determination, Mr Ali was referred to the Medical Assessor for assessment. A MAC was issued on 2 September 2024, providing an assessment of 12% whole person impairment.
The proceedings were then discontinued by the appellant on 17 September 2024. This was apparently on the basis of incorrect legal advice, and the appellant in fact wished to lodge an appeal against the MAC. The appellant then obtained alternative advice and sought reconsideration of the MAC.
The matter came before Principal Member Harris for consideration of the reconsideration application. He made certain orders restoring the proceedings and for future conduct of the matter, including the lodging of an Appeal.
That appeal was lodged on 17 December 2024. The delegate considered the application for reconsideration along with the appeal and determined that it was not appropriate in the circumstances for the matter to proceed back to the Medical Assessor for reconsideration pursuant to s 327(6).
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 determined that it was not necessary for the worker to undergo a further medical examination because the issues raised did not necessitate a re-examination of the appellant, and none was sought by either party.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor made an error in respect of the application of Table 17-10 of AMA 5, with regard to the assessment of flexion and flexion contracture of the right knee. The appellant submits that for both assessments, the worker was “moderately” impaired, resulting in a 20% lower extremity impairment for each. The appellant contends, in the alternative, that flexion of 80° corresponds with the “mild” criteria, affording 10% lower extremity impairment.
In response, the respondent submits that in respect of flexion, an assessment of 80° corresponds with “mild” impairment, providing an assessable range between 4 and 10% lower extremity impairment, in accordance with the Medical Assessor’s clinical judgement. In respect of flexion contracture, the respondent accepts that 10° places the appellant on the cusp of mild and moderate impairment, but submits that it was open for the Medical Assessor to provide an assessment of 5% lower extremity impairment on the basis of clinical judgement.
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. The appeal concerns the calculation of impairment under Table 17-10 of AMA 5 and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 issue on appeal concerns Table 17-10 of AMA 5. The appellant’s submissions reproduce that table. There is no dispute about the assessment figures provided for range of motion in the MAC, that is 10° of flexion contracture and 80° of flexion.
Table 17-10 provides for motion to be assessed in three categories, being mild, moderate, or severe. For each category of movement (flexion and flexion contracture, and separately deformity in varus or valgus), two figures are provided. Those figures are for whole person impairment and lower extremity impairment, with the latter appearing in parentheses. The construction of that point is important because the respondent submits that the figures represent a range of impairment that can be chosen through clinical judgement.
It is not clear on what basis this is asserted. The Table itself does not invite an exercise of clinical judgement, but rather provides a figure for a certain range of motion, that range being less than a certain figure (for flexion) or between certain figures (for flexion contracture). At the top of page 537 of AMA 5, on which Table 17-10 appears (as well as other range of motion tables for the lower extremity), it is stated: “Range-of-motion impairment values for the lower extremity are listed in Tables 17-9 to 17-14”. Clinical judgement or discretion within a range is not invited or contemplated.
The closest AMA 5 gets to such an invitation appears at 17.2f on page 533, which states “The ranges listed in Tables 17-9 through 17-14 are examples of mild, moderate and severe impairments and are to be used as guides”. The entire explanatory paragraph provides:
“Lower extremity impairment can be evaluated by assessing the range of motion of its joints, recognizing that pain and motivation may affect the measurements. If it is clear to the evaluator that a restricted range of motion has an organic basis, three measurements should be obtained and the greatest range measured should be used. If multiple evaluations exist, and there is inconsistency of a rating class between the findings of two observers, or in the findings on separate occasions by the same observer, the results are considered invalid. Figures 17-1 to 17-6 illustrate one method of measuring range of motion in the lower extremity. The ranges listed in Tables 17-9 through 17-14 are examples of mild, moderate, and severe impairments and are to be used as guides. Range-of-motion restrictions in multiple directions do increase the impairment. Add range-of-motion impairments for a single joint to determine the total joint range-of-motion impairments. For example, hip motion is evaluated and any impairment added in each of the six principal directions of motion.”
In the context of the warning about pain and motivation given at the start of the paragraph, as well as inconsistency, it is the Appeal Panel’s view that the reference to the Tables being “used as guides” is to the headings of mild, moderate and severe, rather than an invitation to provide a figure within a range (as many other tables within AMA 5 do). The absence of a range of whole person impairment provided in each of the columns supports the conclusion that it is not open to a Medical Assessor to provide a figure other than that provided for in each category.
The Appeal Panel also notes that whilst the Guidelines make modifications to AMA 5 (and where they do, those modifications take precedence over AMA 5), there are no relevant modifications to the flexion and flexion contracture components of Table 17-10. That table is modified by the Guidelines, but for different purposes.
Even were it arguable that Table 17-10 includes a discretionary element, there is no explanation within the MAC as to why the Medical Assessor would have chosen a lower figure than that provided in the table. Further, the figure for a mild restriction in flexion is not 4-10% lower extremity impairment, it is 4% whole person impairment and 10% lower extremity impairment.
The Appeal Panel’s view is that the most likely explanation for the incorrect figures being provided is that the Medical Assessor has used Table 17-9 (which is for hip motion impairment) rather than 17-10. The figures provided would be correct were they related to hip range of motion; but they are for the knee.
The correct figures are as set out in the appellant’s submissions, taking the “alternative reading” of Table 17-10. A finding of 80° is not “less than 80°”, which means moderate impairment for flexion is unavailable. The correct figures are:
Flexion contracture 10° = 20% lower extremity impairment
Flexion 80° = 10% lower extremity impairmentImpairment across multiple planes of motion are added, not combined (see cl 3.17 of the Guidelines), resulting in lower extremity impairment of 30%. This converts to 12% whole person impairment.
When combined, the final whole person impairment is therefore 19%.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 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: | W3009/24 |
Applicant: | Muhammad Rajab Ali |
Respondent: | IN2F Services 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 Tommasino Mastroianni 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 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) |
| Right lower extremity (knee) | 28/08/21 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 12% | Nil | 12% |
| Lumbar spine | 28/08/21 | Chapter 4 Page 24-29 | Chapter 15 Table 15-3 | 7% | Nil | 7% |
| Scarring | 28/08/21 | Chapter 14 Pages 73-74 | 1% | Nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
2
0