Dela Torre Ventoso v The Jewellery Group Pty Ltd
[2025] NSWPICMP 218
•31 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dela Torre Ventoso v The Jewellery Group Pty Ltd [2025] NSWPICMP 218 |
| APPELLANT: | Maria Jennifer Dela Torre Ventoso |
| RESPONDENT: | The Jewellery Group Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 31 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); medical Assessor (MA) assessed 0% whole person impairment (WPI) of the right lower extremity (ankle and hindfoot) and 7% WPI of the lumbar spine as a result of an injury; appellant submitted that the MA failed to assess impairment of the right lower extremity (ankle and hind foot) and failed to measure range of motion of the ankle and hind foot on his examination; MA found that the appellant had a very dramatic response to examination which could not be explained on orthopaedic grounds and was inconsistent with observations made during the examination; Held – Appeal Panel is satisfied that the MA explained the methodology and rationale of his assessment; Appeal Panel satisfied that the failure to measure range of motion in the ankle and hind foot did not amount to a demonstrable error or the application of incorrect criteria; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 December 2024 Maria Jennifer Dela Torre Ventoso (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 28 November 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
The appellant suffered an injury between 23 May 2018 and 23 May 2018 to her right hip and right knee in her employment with The Jewellery Group Pty Ltd (the respondent).
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 27 September 2024 in which she claimed weekly benefits, medical expenses and lump sum compensation in respect of the injury to her chronic pain condition and consequential lumbar spine condition.
On 17 July 2024 Member Homan issued a Certificate of Determination - Consent Orders as follows:
“1. Award for the respondent in respect of any permanent impairment to the left lower extremity.
2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:Date of injury: 1 January 2018 to 23 May 2018 (23 May 2018 deemed)
Body parts: right lower extremity (ankle and hindfoot) - consequential
lumbar spine – consequential
Method: whole person impairment.
3. The materials to be referred to the Medical Assessor are to include:
a. the Application to Resolve a Dispute and all attachments;
b. the Reply and all attachments, noting that the respondent elects to rely on the
reports of Dr Rimmer for the purposes of cl 44 of the Workers Compensation
Regulation 2016; all other expert reports being admitted only for the purpose of the
histories recorded therein.
…”
The Medical Assessor examined the appellant on 25 November 2024 and assessed 0% WPI of the right lower extremity (ankle and hindfoot) and 7% WPI of the lumbar spine. The total WPI, as a result of the injury from 1 January 2018 to 23 May 2018 (deemed 23 May 2018) was 7%.
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.
The appellant requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient information upon which to make a determination.
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 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
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) the Medical Assessor erred in his assessment of impairment of the right lower extremity (ankle and hind foot) and his failure to measure range of motion of the ankle and hind foot on his examination;
(b) in making his WPI assessment of the right ankle and hind foot, the Medical Assessor failed to comply with the Guidelines. The Medical Assessor ailed to explain his methodology of assessment as per Guideline 1.48. He failed to explain the rationale of his assessment as per Guideline 1.48. Guideline 3.2 provides that an assessor can use a variety of methods of assessment. However, the Medical Assessor failed to indicate what method of assessment he has adopted;
(c) the Medical Assessor has failed to conduct a range of motion assessment of the appellant’s ankle and hind foot, and
(d) the Medical Assessor has failed to make a proper WPI assessment of the appellant’s right ankle and hind foot.
The respondent’s submissions include the following:
(a) the appellant is complaining about the examination, in circumstances where the appellant holds a different opinion, but, has not demonstrated any error or that there was anything of the kind discussed in Ferguson v New South Wales [2017] NSWSC 887. The appeal ought to be rejected. The appellant has not made out any demonstrable error, or any use of incorrect criteria;
(b) the appellant complains that the Medical Assessor did not explain his “methodology” or “rationale” for the assessment of the ankle and hindfoot. However, this ignores the detail from the Medical Assessor in his MAC including the full examination findings and discussion;
(c) he clearly assessed the ranges of motion in the ankles (the first paragraph on page 4 of the MAC) and at pages 4, 5 and 6 of the MAC he outlined a very detailed analysis;
(d) the Medical Assessor conducted an assessment of the range of motion, assessed her lower limbs in full including the knees, ankles and feet, but then commented at length on the inconsistencies in the appellant's presentation, and why the various ranges could not be relied on;
(e) a medical practitioner is to conduct an examination on the day (per paragraph 1.6(a) of the Guidelines), and they are required to use their full skill and clinical judgement (per paragraph 1.36 which permits an assessor to modify the impairment assessment according to their own skill and judgment);
(f) the Medical Assessor followed the parameters of the Guidelines in confirming his reasons why the range of motion that was displayed by the claimant did not equate to any actual genuine WPI, as outlined above;
(g) the Medical Assessor’s opinion was not coloured by any bias or improper examination because it is noteworthy that he was prepared to accept that the lumbar complaints were genuine and followed a proper medical basis (second last paragraph on page 4 of the MAC). This, again, goes to the weight that should be afforded to the Medical Assessor’s examination because he was prepared to rate genuine complaints where that was possible. However, when the appellant's complaints were inexplicable, contrived and where they did not conform with any medical explanation, the Medical Assessor has confirmed as much. He has clearly explained at page 6 why CRPS would not explain her symptoms, and why range of motion was not reliable at page 4, per the extracts above;
(h) nothing in the appellant’s submissions points to any actual error on the part of the Medical Assessor. To the contrary, his reasoning, rationale and opinion more than adequately discharging his obligation;
(i) section 325(2)(c) of the 1998 Act provides that a Medical Assessor must provide reasons for their assessment. This does not require a Medical Assessor to provide extensively detailed reasons as to his or her opinion, rather it requires the Medical Assessor to “explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law” (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43);
(j) the Medical Assessor did not fail to explain the methodology he used or the rationale of his assessment. It is self-evident from the MAC that the Medical Assessor tried to assess range of motion. The Medical Assessor explained that method yielded “voluntary” restriction from the claimant. Where CRPS did not explain her symptoms, he clearly explained his view about her presentation and properly used paragraph 1.36 to modify the rating to 0%;
(k) the appellant alleged there was a failure to conduct a range of motion assessment, but this is without merit;
(l) the appellant has failed to make out any demonstrable error or incorrect criteria. The appellant complains about the absence of a range of motion assessment, despite such an assessment clearly having been attempted by the Medical Assessor;
(m) the appellant also complains about an absence or rationale or reasons, despite the Medical Assessor providing a detailed explanation of his findings on the appellant’s inconsistencies;
(n) the Medical Assessor diligently and thoroughly carried out his task, assessing impairment where it was possible to do so (lumbar spine), before explaining in detail why there was no impairment at the ankle and hindfoot. There is no valid reason to disturb his findings, and
(o) the MAC of the Medical Assessor should be upheld and his findings on impairment be confirmed.
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.
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.
Ground 1 – assessment of impairment of the right lower extremity
The appellant submits that the Medical Assessor erred in his assessment of impairment of the right lower extremity (ankle and hind foot).
The Guidelines provide:
“1.36 AMA5 (p19) states: “Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.” This paragraph applies to inconsistent presentation only.”
…..
1.46 A report of the evaluation of permanent impairment should be accurate, comprehensive and fair. It should clearly address the question(s) being asked of the assessor. In general, the assessor will be requested to address issues of: • current clinical status, including the basis for determining maximum medical improvement • the degree of permanent impairment that results from the injury/condition, and • the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if applicable.
1.48 As the Guidelines are to be used to assess permanent impairment, the report of the valuation should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines. If the evaluation was conducted in the absence of any pertinent data or information, the assessor should indicate how the impairment rating was determined with limited data.
1.50 The report should include a conclusion of the assessor, including the final percentage of WPI. This is to be included as the final paragraph in the body of the report, and not as a separate report or appendix. The report must include a copy of all calculations and a summary table.”
And at:
“3.2 Assessment of the lower extremity involves physical evaluation, which can use a variety of methods. In general, the method should be used that most specifically addresses the impairment present. For example, impairment due to a peripheral nerve injury in the lower extremity should be assessed with reference to that nerve rather than by its effect on gait.
3.3 There are several different forms of evaluation that can be used, as indicated in AMA 5 sections 17.2b to 17.2n (pp 528–54). AMA5 Table 17-2 (p 526) indicates which evaluation methods can be combined and which cannot. It may be possible to perform several different evaluations, as long as they are reproducible and meet the conditions specified below and in AMA 5. The most specific method of impairment assessment should be used. (Please note that in Table 17-2, the boxes in the fourth row (on muscle strength) and seventh column (on amputation) should be closed boxes rather than open boxes ).
3.4 It is possible to use an algorithm to aid in the assessment of lower extremity impairment (LEI). Use of a worksheet is essential. Table 3.5 at the end of this chapter is such a worksheet and may be used in assessment of permanent impairment of the lower extremity.
3.5 In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA 5 Table 17-2 ‘Guide to the appropriate combination of evaluation methods’, using the Combined Values Chart on pp 604–06 of AMA 5.”
The Medical Assessor under “Findings on physical examination” noted:
“As will be noted Ms Ventoso has a very interesting presentation. She walks with a very slow gait using her two crutches, stepping forward with her right foot and then bringing her left foot up to meet her right foot before stepping off again. She is unable to walk without the crutches and it was therefore not possible to test her range of back movement.
Her nephew had to assist her with undressing and dressing, and she was reluctant to slacks (sic), which were rolled to above her knees.
Her nephew also has to assist her getting on and off the examining couch.
Straight leg raising was limited to 10° on both sides, accompanied by significant discomfort, but when she sits with her legs over the end of the examining couch, her knees can almost be fully extended without any particular discomfort.
Knee reflexes are depressed and it is not possible to test ankle reflexes because of her marked discomfort.
Ms Ventoso has significant hyperaesthesia to pinprick but also to light touch of both lower limbs extending from a few centimetres below her knees, all the way down into her feet, and even gentle stroking of her feet and legs causes very significant discomfort.
There was marked weakness to testing all motor groups with very limited active movement in any direction of her feet and ankles, which would not be in keeping with her observed gait today.
I elected not to get Ms Ventoso to lie on her abdomen which under the circumstances would seem to be too difficult for her, and her back was therefore examined in the seated position. It was very interesting then to note that she only complains of discomfort to palpation in the lower lumbar region and not in the rest of her spine, and this seemed to be a very genuine response to pressure in the low back. When considered in relation to her general presentation, one would have expected severe discomfort to palpation in the whole of her spine which was not the case. In addition, she only complained of mild discomfort with simulated axial loading which once again, was not in keeping with her overall presentation.”Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“Ms Ventoso initially developed symptoms in her right foot and within a few months
symptoms had extended to her left foot and up both lower limbs to her low back. She has had significant ongoing problems with her low back and both lower limbs since then.
As noted, symptoms also extended to involve the rest of her body and she now has constant and significant discomfort at all of these sites. Her main problem at the moment seems to be the marked hypersensitivity of both legs below the knees.Ms Ventoso’s presentation suggests a very significant additional functional component (abnormal illness behaviour), as evidenced for example by:
- Limited straight leg raising to 10° on both sides with the ability to sit erect with no discomfort, with virtually full knee extension.
- The inability to actively exert motor power in her lower limbs which was a non-organic finding.
- The very significant hypersensitivity of both lower limbs bordering on almost bizarre, once again being unexplainable on a physical basis.
I note that it has been suggested that Ms Ventoso has complex regional pain syndrome of both lower limbs, but please note that she does not have any other features of CRPS (see below).
The interesting aspect then is that Ms Ventoso did have a very genuine response to palpation in the lower lumbar region and only mild discomfort with simulated axial loading.
In my opinion then Ms Ventoso does have a mechanical problem in her low back and I would also accept that there may be referred pain into both lower limbs. In my opinion however, there is no evidence of any neurological involvement (that is, no radiculopathy).
She presents as being significantly disabled and unable to mobilise without 2 crutches, and with her nephew having to assist her to stand up from the chair, as well as getting on and off the examining couch.
In my opinion this significantly exaggerated response could be either conscious of unconscious, and I would suggest that this could only be determined by a psychiatrist.”
Under “Consistency of presentation” the Medical Assessor wrote: “As noted, there is a very dramatic response to examination which in my opinion cannot be explained on orthopaedic grounds. Psychiatric assessment is suggested.”
Under “Reasons for Assessment” the Medical Assessor wrote:
“In my opinion Ms Ventoso does not qualify for CRPS. Despite the hyperaesthesia/allodynia, there is no evidence of vasomotor changes, with no temperature asymmetry or skin colour changes, no evidence of sudomotor involvement with no swelling or sweating, and no evidence of trophic changes involving the hair, skin or nails. The restricted range of joint motion is felt to be voluntary.
Please note that in the presence of significant abnormal illness behaviour it is very difficult to discern if there is any underlying organic component.”
The appellant submits the Medical Assessor failed to explain his methodology of assessment as per Guideline 1.48.
As noted above Guideline 1.48 provides:
“1.48 As the Guidelines are to be used to assess permanent impairment, the report of the valuation should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines. If the evaluation was conducted in the absence of any pertinent data or information, the assessor should indicate how the impairment rating was determined with limited data.”
The Appeal Panel accepts that the Medical Assessor is required to “explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law” (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43).
The Appeal Panel does not accept that the Medical Assessor failed to explain his methodology of assessment required by Guideline 1.48. The Medical Assessor set out in considerable detail the methodology of assessment. It is clear that the Medical Assessor conducted a proper and thorough examination. He described the gait pattern very clearly, found almost no range of movement, such finding being inconsistent with way the appellant walked. On that basis, that is, because of the inconsistency, the Medical Assessor was unable to properly assess the range of motion in the ankle and hind foot.
The Medical Assessor considered the diagnosis of CRPS. He noted that despite the hyperaesthesia/allodynia, there was no evidence of vasomotor changes, with no temperature asymmetry or skin colour changes, no evidence of sudomotor involvement with no swelling or sweating, and no evidence of trophic changes involving the hair, skin or nails. The Medical Assessor felt that the restricted range of joint motion was voluntary. In any event, because of the findings in his examination, the appellant would not qualify for CPRS under Table 17.1 of the Guidelines as she did not display a sign in all of the four categories (sensory, vasomotor, sudomotor/oedema and motor/trophic) at the time of evaluation.
Dr Gorman had made a diagnosis of CPRS type 1 and assessed 35% WPI. However, in making that assessment Dr Gorman found no active range of motion in the ankle and hind foot. The Appeal Panel considered that such a finding, if it was true, would be inconsistent with the appellant being able to walk at all.
The Medical Assessor found that the appellant had non organic problems in the right ankle and hind foot and therefore was unable to make an assessment of permanent impairment because there was no evidence of organic pathology. The Medical Assessor identified the methods of assessment that he considered and why he was unable to make an assessment using those methods. The Appeal Panel is satisfied that the Medical Assessor explained the methodology and rationale of his assessment as per Guideline 1.48. The Appeal Panel finds that the ground of appeal is not made out.
Ground 2 – failure to measure range of motion of the ankle and hind foot on his examination
The appellant submits that the Medical Assessor erred in failing to measure range of motion of the ankle and hind foot on his examination and failed to make a proper WPI assessment of the ankle and hind foot.
The Medical Assessor wrote:
“There was marked weakness to testing all motor groups with very limited active movement in any direction of her feet and ankles, which would not be in keeping with her observed gait today.”
As noted above, the Medical Assessor was unable to measure the range of movement in the ankle and hind foot because of the inconsistency in the appellant’s presentation. The Medical Assessor explained, as required on 1.36 of the Guidelines, that the very limited range of active movement in any direction if the feet and ankles was inconsistent with her observed gait. It follows that the measurements the Medical Assessor obtained were not plausible or consistent with the impairment being evaluated. The Medical Assessor accordingly modified the assessment and he described and explained the reason for the modification in sufficient detail.
The Appeal Panel agrees with the Medical Assessor that the clinical presentation does not match with the cause of the injury or physical impairment. The Medical Assessor did not measure movement in ankle and hindfoot as he was unable to do so because of the inconsistencies in presentation. The Appeal Panel notes that Dr Rimmer had difficulties in examining the appellant thoroughly because of “the amount of distress alleged by her” and Dr Suthersan (treating orthopaedic surgeon) was unable to examine the appellant due to pain on 7 February 2020.
In those circumstances, the Appeal Panel does not regard that the failure to measure range of motion in the ankle and hind foot amounted to a demonstrable error or the application of incorrect criteria. As noted above, the Medical Assessor was unable to measure range of motion in the ankle and hind foot because of inconsistency in presentation. The Medical Assessor explained his methodology and reasons for assessing 0% WPI in the right lower extremity (ankle and hindfoot). The Medical Assessor assessed 0% WPI for right ankle and hindfoot as he found the appellant did not have CPRS and he was not satisfied that she had any restriction in range of movement due to organic pathology.
The Medical Assessor’s findings of inconsistency suggest that the appellant probably has a conversion reaction. The Medical Assessor made a series of observations in his examination and the Appeal Panel noted that despite being unable to get measurements of the ankle and hind foot, he observed her walking and her nephew helping her onto the examination couch. These observations are all part of the assessment. The Appeal Panel sees nothing to justify the severity of the presentation and is satisfied that there is no evidence of organic pathology. It follows that she has non organic problems in the right ankle and hindfoot which cannot be assessed (eg if the appellant has a conversion reaction, that is not a basis for making an assessment using range of motion).
This ground of appeal is not made out.
The Appeal Panel finds that there is no error or application of incorrect criterial in the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 November 2024 should be confirmed.
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