Alm v Nimue Skin Pty Ltd
[2025] NSWPICMP 233
•3 April 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Alm v Nimue Skin Pty Ltd [2025] NSWPICMP 233 |
| APPELLANT: | Karen Alm |
| RESPONDENT: | Nimue Skin Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 3 April 2025 |
| DATE OF AMENDMENT: | 16 May 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); deterioration of condition resulting in a higher degree of permanent impairment; worker had knee and hip replacements since previous assessment; prima facie evidence of deterioration; worker re-examined by member of Appeal Panel; Held – MAC revoked on basis of deterioration; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 November 2024 Karen Alm, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory Burrow, a Medical Assessor (acting at that time in his capacity as an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 24 August 2020.
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):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· 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 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
This matter has a protracted history of litigation in the former Workers Compensation Commission and the Personal Injury Commission (Commission).
The appellant suffered an injury to the left knee in the course of her employment with the respondent on 13 November 2013. In proceedings in the Workers Compensation Commission, Arbitrator Moore found the applicant suffered injury to her left knee and both hips, as well as a consequential condition in her right knee. Awards were made for weekly compensation.
On 19 August 2020 a Medical Assessment Certificate (MAC) was issued in relation to a threshold dispute for the purposes of section 59A of the Workers Compensation Act 1987. The appellant was assessed to have 17% whole person impairment. At that time there had been no claim for section 66 compensation made.
Further proceedings were commenced in the Commission in matter W24221/24 claiming permanent impairment compensation. A Certificate of Determination was issued by Member Strachan identifying that it was appropriate that the appellant file an application to appeal in compliance with Procedural Direction PIC 7. That step was undertaken and the matter has been referred to the present Appeal Panel.
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 the worker should undergo a further medical examination because the ground of appeal of deterioration, for which there was prima facie evidence, necessitated such a course.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) the medical reports of Dr Endrey Walder dated 5 February 2024 and Dr Hyde Page dated 2 April 2024.
The report of Dr Endrey Walder was obtained by the appellant and the report of Dr Hyde Page was obtained by the respondent. The appellant submits that both reports show that the worker’s condition has deteriorated since the MAC as she has now had both knees and her right hip replaced.
The respondent has no objection to either ground of appeal relied upon and requests that the worker be re-examined by a Medical Assessor member of the Appeal Panel.
The Appeal Panel are satisfied that it is appropriate to admit the evidence into the proceedings in accordance with s 328(3) of the 1998 Act. There is a prima facie case of deterioration and a medical dispute as to the current degree of permanent impairment suffered by the worker.
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.
Further medical examination
Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 17 March 2025 and reported to the Appeal Panel. A copy of that examination report is included below.
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 there has been evidence of a deterioration of the appellant. In reply, the respondent accepts that contention and requests that the worker be re-examined by a Medical Assessor member of 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. This appeal concerns deterioration. Riverina Wines v Workers Compensation Commission of New South Wales [2007] NSWCA 149 (Riverina Wines) represents the leading authority on the concept of deterioration within the legislation. . Campbell JA described it as:
“’Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
Handley JA agreed with that construction, providing a temporal element:
“As Campbell JA says (para [89]) deterioration of a person’s condition ‘is an inherently relational concept’. It requires a comparison between the worker’s condition at an earlier date and his or her condition at a later date. In this context, as Campbell JA holds, the earlier date is the date of the certificate of Dr Cummine. The later date is when the Registrar or his of her delegate came to consider (s327(4)) whether this ground of appeal ‘exists’.”
Hodgson JA agreed with the orders proposed by Campbell JA and with his reasons, but added the following relevant comment (acknowledging that his honour was discussing the role of the Registrar (equivalent to the President’s determination under s 327(4)), as opposed to the role of an Appeal Panel)):
“Although the existence of a MAC certifying nil impairment and a later medical report evidencing some impairment is some evidence of deterioration resulting in an increase in the degree of impairment, this does not mean that a Registrar faced with such material would necessarily be satisfied that the ground in s.327(3)(a) existed. If the later medical report is from a doctor who gave an earlier report to similar effect, with which the MAC conflicted, the Registrar could well take the view that there was merely an attempt being made to avoid the conclusive effect of the MAC, and that there was no sufficiently realistic prospect of the ground (deterioration) being made out to warrant the appeal proceeding.”
The Appeal Panel are satisfied that there is evidence of a deterioration and agree with the parties in that regard. Accordingly, Ms Alm was directed to attend a re-examination with Medical Assessor Pillemer which proceeded on 17 March 2025. The report of that re-examination is as follows:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-2745/20 |
Appellant: | KAREN ALM |
Respondent: | Nimue Skin Pty Ltd |
Examination Conducted By: | Dr Roger Pillemer |
Date of Examination: | 17 March 2025 |
As noted, Ms Alm had an assessment carried out by Dr G Burrow on 19 August 2020 who assessed impairment of both lower extremities in terms of hips and knees, and came up with a combined total of 17% WPI, noting that a one-tenth deduction was made on both sides as a result of ‘…clinical and radiological evidence of bilateral pre-existing disease in both knees and hips’. I note that this Medical Assessment Certificate was accepted at the time.
The reason for re-examination today is that further treatment has been carried out including bilateral hip replacements and a right total knee replacement.
I note that at the time of the original MAC, Ms Alm was not working, and she has not gone back to any gainful employment since then.
1. The workers medical history, where it differs from previous records
I read Ms Alm the history she gave to Dr Burrow at the time of the consultation in August 2020 and she felt that this was fairly accurate, but understandably a long time ago.
2. Additional history since the original Medical Assessment Certificate was performed
As noted because of persistent and increasing symptoms Ms Alm came to further treatment being a right total knee replacement in July 2021, a right total hip replacement in March 2022, and a left total hip replacement on 16 March 2023. Ms Alm is reasonably happy with the right hip and knee replacements, but is having significant ongoing problems with her left hip replacement (see below).
In addition to the surgery, Ms Alm has had significant physiotherapy and has also taken tablets, and at the present time is still taking Palexia and Panadeine Forte, and uses a stick when she is ‘out of the house’, as she explains that ‘my balance is not good’.
Ms Alm remains under the care of her treating psychiatrist.
Right Knee
Ms Alm has ongoing problems with her right knee which she describes as being constantly present with symptoms ranging between 2-6/10. The discomfort is felt mainly in her distal quadriceps region and her anterior knee, and symptoms are aggravated by sitting or standing for long, or doing a lot of walking, and she is unable to kneel at this stage. She does get some relief by resting and getting the weight off her knee, and taking her tablets. She is also happy with her range of movement on the right side. Symptoms are remaining fairly static.
Right Hip
Once again, Ms Alm while happy with the surgical result, continues to complain of constant pain in the hip which ranges between 2-7/10, and symptoms are felt in the buttock and lateral hip area, and are aggravated by lying on her right side or by standing for long, or walking. She does get relief by changing position, taking tablets and resting. She feels her range of movement of her right hip is ‘not bad’, and her condition has been stable.
Left Hip
This is Ms Alm’s main concern with constant pain in the buttock area, radiating down towards her knee, and symptoms ranging between 5-9/10. Symptoms are once again aggravated by lying on her left side, by sitting or standing for long, or by doing a lot of walking, and she also feels that her left lower limb is particularly weak and she has difficulty flexing her hip on the left side. She also feels that the hip is very stiff and symptoms are unchanging.
It should be noted that on examination Ms Alm was found to have evidence of L5 and S1 nerve root involvement, or alternatively sciatic nerve involvement. On specific questioning Ms Alm informed me that it was only after her last operation on her left hip that she developed symptoms radiating down her left leg, going slightly beyond her left knee. She also gets pins and needles in this distribution.
She also has difficulty sitting on hard surfaces.
Left Knee
Ms Alm feels her left knee is ‘not too bad’, but she does get daily discomfort in the knee and can be quite comfortable at rest. The discomfort is felt anteriorly and over her distal quadriceps and also ‘deep in’. Symptoms can go as high as 5/10 and are aggravated by walking, sitting or standing for long, and she does get relief by resting and by not bearing weight on her left knee.
On specific questioning, Ms Alm does not have any particular low back discomfort.
General Health
She has put on 20 to 30kg since her injury and is very depressed, and on strong medication and under the care of her treating psychiatrist.
She also has reflux and has been told that she is ‘pre-diabetic’.
Activities of Daily Living
Ms Alm feels that she could only walk for 10 minutes without having to rest and this is mainly because of the problems with her left hip and left lower limb. She will only drive locally.
She lives with a friend and has somebody in to do the housework, and what little she can do will always be ‘stop and start’. She has her shopping delivered as she feels she cannot walk and carry at the same time because of her problems with balance, and because of the pain.
Ms Alm manages with her self-care.
Findings on clinical examination
Ms Alm feels that she was not too bad this morning, but then the transport arranged for her to come into the rooms today was a van, and she had considerable difficulty in getting into the van which she feels significantly aggravated her left hip and leg symptoms.
Ms Alm has a significant increase in her body mass index particularly centrally, and undresses and dresses without too much of a problem, and walks with a slow measured gait bilaterally. She has difficulty walking on heels and toes, and does show significant restriction of back movement, only getting her fingertips a few centimetres below her knees in flexion, and decreased lateral flexion to the left, and these movements all aggravate her left buttock and leg pain.
Knee reflexes were present and equal, her right ankle reflex is present, but her left ankle reflex is absent. In addition, she has slight weakness of eversion of the left foot and diminished sensation to pinprick over the lateral border and sole of her left foot. These signs are all in keeping with an S1 nerve root lesion.
In addition, she has less marked hypoaesthesia over the dorsum of her left foot and has weakness of extensor hallucis longus (EHL), and softening of extensor digitorum brevis (EDB). These are all in keeping with L5 nerve root involvement.
Ms Alm does complain of significant discomfort to palpation in the lower lumbar region but also has marked discomfort in the left buttock area over her sciatic nerve.
Ms Alm’s knees are in 6° of valgus on the right and 11° valgus on the left.
Right Hip
Ms Alm was able to flex the hip to 95° and all other movements were very satisfactory. She has a 13cm healed scar over the lateral aspect of her hip where the surgery was carried out.
Right Knee
Ms Alm has a range of movement from 0° to 100°, the knee was stable and there was no fluid in the joint today. She has a healed vertical 15cm scar over the anterior aspect of her knee following her surgery.
Left Hip
Ms Alm showed significant restriction of movement of her left hip, and in my opinion this was due to her neurological involvement, rather than due to her hip. On direct examination she was only able to flex to 70° because of pain, but when sitting with her legs over the end of the examining couch, her hip was flexed to 90° without much discomfort. There was full extension with internal rotation of 5°, external rotation to 10°, abduction of 30° and adduction of 20°.
There is a 15cm well-healed lateral scar where the surgery was carried out.
Left Knee
Ms Alm’s range of flexion is from 0° to 110°, and movements were accompanied by crepitus. The knee itself was stable and there was no fluid in the joint today.
Results of any additional investigations since the original Medical Assessment Certificate
Ms Alm has had post-operative x-rays done showing the joint replacements in position.”
Ms Alm has been assessed in relation to her right knee on the basis of the result from her knee replacement (Table 17-35), and the left and right hips on the basis of the result from her hip replacements (Table 17-34). A worksheet setting out the findings of results will be attached at the end of this decision.
In her left knee, which has not been the subject of a knee replacement, she had a range of motion from 0° to 110°. As she does not have “less than 110°” of flexion (noting that 110° is not less than 110°), and has no restriction in flexion contracture. On presentation during the re-examination, Ms Alm had 11° valgus alignment which equates with 10% lower extremity impairment pursuant to Table 17-10 AMA 5.
Based on the worksheet provided for the hips, Ms Alm has had a fair result from her hip replacements in both hips, attracting 50% lower extremity impairment for each. Based on the worksheet provided for the right knee, Ms Alm has had a fair result from her knee replacement, again attracting 50% lower extremity.
In the original assessment, Dr Burrow made a deduction of one tenth from each body part assessed. He identified pre-existing degenerative changes, shown by clinical and radiological evidence of pre-existing disease in both the knees and the hips. The Appeal Panel agree with this conclusion and the extent of the deduction made.
For the left lower extremity (knee and hip), the resulting impairment is 45% combined with 9%, which is 50% lower extremity impairment. This is converted to 20% whole person impairment.
In the right lower extremity, 45% is combined with 45%, which results 70% lower extremity impairment, which converts to 28% whole person impairment.
The Appeal Panel note the different assessments of impairment of Dr Endrey-Walder and Dr Hyde Page. The difference in impairment assessed concerns the result from the hip replacements and knee replacement. Dr Hyde Page had a good result in the right hip and right knee and a fair result in her left hip. Dr Endrey-Walder found a fair result in the right hip, a poor result in the left hip, and a fair result in the right knee.
The Appeal Panel prefer their own findings on the day of assessment as undertaken by Medical Assessor Pillemer.
The Appeal Panel notes that on re-examination, Ms Alm demonstrated symptoms consistent with either L5 and S1 nerve root involvement or sciatic nerve involvement with particular involvement of the L5 and S1 components of the sciatic nerve. Based on the history recorded, these symptoms came on following Ms Alm’s left total hip replacement in March 2023. It is recommended that Ms Alm speak to her general practitioner and potential a neurologist in respect of this finding. It does not form part of the medical dispute before the Commission.
Accordingly, based on the deterioration evident in the re-examination undertaken by Medical Assessor Pillemer, the MAC will be revoked and a new MAC 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: | M1-2745/20 |
Applicant: | Karen Alm |
Respondent: | Nimue Skin Pty Limited |
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 Approved Medical Specialist Gregory Burrow 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) |
| Left lower extremity (hip and knee) | 13/11/13 | Chapter 3 | Chapter 17 | 22% | 1/10 | 20% |
| Right lower extremity (hip and knee) | 13/11/13 | Chapter 3 | Chapter 17 | 30% | 1/10 | 28% |
| Total % WPI (the Combined Table values of all sub-totals) | 42% | |||||
0
1
0