Auspaint Pty Ltd v Khaksar

[2024] NSWPICMP 840

DETERMINATION OF APPEAL PANEL
CITATION:	Auspaint Pty Ltd v Khaksar [2024] NSWPICMP 840
APPELLANT:	Auspaint Pty Ltd
RESPONDENT:	Ardalan Khaksar
APPEAL PANEL
MEMBER:	Cameron Burge
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	9 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred in assessment of left upper extremity and left lower extremity; assessment in relation to cervical spine not challenged; the matter was subject to a consent referral in relation to the applicant’s left upper extremity (shoulder, wrist) and left lower extremity (knee); the MA included assessments of the left thumb and left elbow; the appellant appealed, submitting the elbow and thumb should not have been included, and also the method of assessment of the left knee was inappropriate; Held – the MA erred in including the left thumb; the MA did not err in including a reference to the left elbow, as he was required to assess forearm supination and pronation in determining any impairment to the wrist; whilst those measurements are contained under the heading “elbow” in AMA5, they assess restrictions in movement of the wrist and are therefore appropriately included; the method of assessment of the left knee was available and appropriate; there was no error in the manner in which the MA undertook his assessment of that body system; Medical Assessment Certificate (MAC) revoked, new MAC issued, assessing respondent with 18% WPI.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 22 July 2024 Auspaint Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 June 2024.

2. 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.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. There is no issue the applicant suffered injury on 26 May 2021. On 22 April 2024, the Personal Injury Commission (Commission) issued a Certificate of Determination (COD) which referred the matter for medical assessment by consent. The terms of that referral were as follows:

   “a.     the respondent withdraws the dispute about the applicant’s left shoulder condition.

   b.      pursuant to s 321 of the 1998 Act, the applicant [sic] is remitted to the President for referral to a medical assessor, to be appointed by the President, to assess:

   i.date of injury: 26 May 2021

   ii.body systems/ parts:

   -left upper extremity (shoulder, wrist)

   -left lower extremity (knee)

   -cervical spine

   iii.method of assessment: whole person impairment.”

PRELIMINARY REVIEW

1. 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.

2. 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 relevant body systems were all the subject of assessment in the original MAC, and the demonstrated error in that document could be corrected without the need for further assessment.

3. The Appeal Panel has determined the Medical Assessor erred in assessing Ardalan Khaksar’s (the respondent) left thumb, because it was not the subject of the referral. For reasons which follow, however, the Appeal Panel has found no error in the assessment of the appellant’s left upper extremity (wrist) and left lower extremity (knee).

Fresh evidence

1. No fresh evidence was sought to be called by either party.

EVIDENCE

Documentary evidence

1. 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

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

2. In summary, the appellant submits that the Medical Assessor erred in making reference to the respondent’s left elbow in providing their assessment of his left upper extremity (wrist), as the left elbow was not included in the consent referral. The appellant also submitted the Medical Assessor erred by including the left thumb for assessment, as it was not included in the consent referral. Lastly, the appellant submits the Medical Assessor erred in using the calf muscle atrophy method of assessment with respect to the left knee.

3. In reply, the respondent agreed the left elbow and thumb should not have been included as part of the assessment. The respondent disputed any error in relation to the method adopted for assessing the left knee, noting it is a method available to the Medical Assessor via Chapter 17.2d of AMA 5.

4. The Appeal Panel formed a preliminary view that although the respondent’s (relevant for the purposed of this aspect of the appeal) injury was confined to his left wrist, measurement of forearm pronation and supination which forms part of any wrist impairment is appropriately measured using Figure 16-37 in AMA 5. Although that Figure is found in the “elbow section” of AMA 5, the Appeal Panel’s preliminary view was the method of measurement adopted by the Medical Assessor was appropriate.

5. The parties were directed to provide further submissions on this aspect of the assessment. The appellant availed itself of that opportunity, submitting that whether a wrist injury effects forearm functioning is a medical question, but whether or not a body system (in this case the elbow) can be assessed by a Medical Assessor is a legal question.

6. The appellant submitted that as impairment resulting from restriction in forearm pronation and supination movements is included in the elbow section of AMA 5, and as there is no overriding deviation in the Workers Compensation Guidelines, it was not open to the Medical Assessor to measure pronation and supination as part of the assessment of the wrist.

FINDINGS AND REASONS

1. 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.

2. 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.

Left upper extremity (thumb)

1. The Appeal Panel finds the Medical Assessor erred by including the left thumb in his assessment, as it was not part of the consent referral.

Left upper extremity (wrist)

1. The Appeal Panel finds there was no error on the part of the Medical Assessor by including a reference to the respondent’s left elbow in his assessment of the left wrist impairment. By including that reference, the Medical Assessor was in fact attending to appropriately and thoroughly assessing the respondent’s left wrist, albeit in part by reference to a range of motion which is measured from the elbow. In the MAC, the Medical Assessor made clear this was the case when he said at [9(b)]:

   “Although the shoulder and wrist have been identified in the referral, attention is drawn that in the examination of the wrist, the movements of supination and pronation are usually included, although strictly speaking, these arise from the elbow. This is the reason why the elbow impairment has been included.” (emphasis added)

2. The appellant submitted no mention of elbow impairment was made in the independent medical examination (IME) report of Dr Bodel, upon which the respondent based his claim. It should, however, be noted Dr Bodel assessed the wrist impairment in the following manner:

   “There is no restriction of elbow movement, but he has a very restricted range of wrist movement on the left and the range of movement in each wrist is recorded in the table below:

Wrist Movement	Active ROM Measured RIGHT	Active ROM Measured LEFT	NORMAL ROM
Flexion	60	30	60
Extension	60	30	60
Radial deviation	20	15	20
Ulnar deviation	30	20	30
Pronation	80	70	80
Supination	80	70	80

He is able to make a full fist on both sides. Grip strength is normal.”

1. It is apparent therefore that Dr Bodel assessed the respondent’s pronation and supination when conducting his examination.

2. In this instance, the inclusion of the reference to the left elbow is brought about by no more than the categorisation in AMA 5 of the impairment to pronation and supination of the impaired left wrist in a table under the heading “Elbow.” However, what has been assessed is the impairment to the left wrist.

3. Taking into account the additional submissions by the appellant, the Appeal Panel nevertheless retains its view that forearm rotation (pronation and supination) occur at both the elbow and the wrist, and injuries which cause disruption or local swelling at the wrist will also affect forearm rotation. It is therefore reasonable and necessary for a Medical Assessor to measure forearm pronation and supination in order to accurately assess the wrist impairment. The fact the table under which such impairment is assessed falls within the “Elbow” section of the AMA 5 does not detract from a measurement pursuant to that table being appropriate for measuring wrist impairment.

4. Accordingly, the Appeal Panel declines to overturn the assessment of the respondent’s left wrist, including the component which includes Figure 16-37 of AMA 5.

Left lower extremity (knee)

1. The Appeal Panel declines to set aside the assessment of the left knee for the following reasons.

2. Chapter 17.2d of AMA 5 deals with unilateral muscle atrophy, as found by the Medical Assessor. Having found the calf atrophy was attributable to the respondent’s injury, there is nothing to suggest the Medical Assessor’s use of that atrophy to assess impairment was inappropriate.

3. Additionally, the appellant’s submission that the appellant’s right calf was abnormally large because of his history playing football is not grounded in anything other than supposition that the right calf is larger than the left because of the appellant’s right footedness at soccer, something which is not in evidence and cannot form the basis of a finding of error on the part of the Medical Assessor.

4. For these reasons, the Appeal Panel has determined that the MAC issued on 24 June 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:	W2232/24
Applicant:	Ardalan Khaksar
Respondent:	Auspaint 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 Tim Anderson 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)
Cervical spine	20/5/21	Chap 4 P 24	P 392 T 15-05	5	0	5
Left upper extremity	20/5/21	Chap 2 P 10	Shoulder (5UEI) P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 Subtotal: 8 Elbow: (1 UEI) P 472 F 16-34 P 474 F 16-37 Subtotal: 1 Wrist: (13 UEI) P 476 F 16-28 P 469 F 16-31 Total UEI 13 cw 5 cw 1 = 18 Converts to 11 WPI Table 16-3 Page 439	11	11
Left lower extremity	20/5/21	Chap 3 P 13 P14 17-06b	P 446 T 17-33	4	0	4
Total % WPI (the Combined Table values of all sub-totals)					18

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.