Dinuzzo v Modular Walls Commercial Pty Ltd - [2024] NSWPICMP 884

DETERMINATION OF APPEAL PANEL
CITATION:	Dinuzzo v Modular Walls Commercial Pty Ltd [2024] NSWPICMP 884
APPELLANT:	Matthew Dinuzzo
RESPONDENT:	Modular Walls Commercial Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	20 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor assessed 7% whole person impairment (WPI) of the left lower extremity; worker appealed on the basis there was a failure to assess the midfoot impairment and failure to assess scarring; Medical Appeal Panel (Panel) satisfied that there was no failure to assess the midfoot; Panel noted that scarring was not identified as a body part in the ARD or referral but the report upon which the claim was made included 1% for scarring and the section 78 Notice referred to a claim for scarring; Panel satisfied that the dispute between the parties included a claim for scarring; Panel assessed 1% WPI for scarring, resulting in total WPI of 8%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 October 2024 Matthew Dinuzzo (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin Alexander Mitchell (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 21 October 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, 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

The appellant suffered an injury to his left lower extremity during his employment as a storeman/packer with the Modular Walls Pty Ltd (the respondent) on 12 September 2017.
The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 6 December 2022 in which he claimed an amount of $35,510 in respect of 15% whole person impairment (WPI) of the left lower extremity, with a date of injury of 12 September 2017.
The appellant’s claim for WPI resulting from injury on 12 September 2017 was referred to the Medical Assessor. The body parts referred were recorded as: “left lower extremity”.
The Medical Assessor examined the appellant on 2 October 2024 and assessed 7% WPI of the left lower extremity as a result of the injury on 12 September 2017.

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 he be re-examined
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 there was sufficient information upon which to make a determination

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) photographs of the appellant’s left foot and ankle taken on 22 October 2025 [sic].
The appellant’s fresh evidence comprises of three photographs of his left foot and ankle. The appellant submits this fresh evidence should be allowed to assist with determining the appellant's skin impairment under the Table for the Evaluation of Minor Skin Impairment (TEMSKI) Table 14.1, and to show the Medical Assessor's error. The appellant noted that these photographs were taken by him on 22 October 2025 [sic]. The Appeal Panel assumes that the photographs were, in fact, taken on 22 October 2024.
The respondent objects to the admission of the new evidence. The respondent submits that this evidence could have been provided to the Medical Assessor at the time of the initial assessment had there been a claim for impairment resulting from scarring.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The Appeal Panel accepts that the photographs of the appellant’s ankle were taken after that medical assessment.
The photographs clearly show the scarring on the appellant left ankle and foot. For the reasons set out below, the Appeal Panel considered that the Medical Assessor made a demonstrable error in failing to properly assess the scarring on the ankle. Therefore, the Appeal Panel considers that photographs have significant probative value. On balance, the Appeal Panel is satisfied that the photographs should be received on the appeal.
The Appeal Panel determines that the following evidence, should be received on the appeal:
(a) photographs of the appellant’s ankle and foot taken on 22 October 2024.

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)    Ground 1 – failure by the Medical Assessor to assess the midfoot impairment: The AMA 5 defines foot to include hindfoot, midfoot and forefoot.
(b)    Clause 3.17 of the Guidelines provides:
"If range of motion is used as an assessment measure, then AMA 5 Tables 17-9 to 17 14 (p 537) are selected for the joint or joints being tested. If a joint has more than one plane of motion, the impairment assessments for the different planes should be added... ".
A foot has three planes of motion.
(c)    The Medical Assessor criticised Dr Poplawski for using the wrong Table 17.14 of the Guidelines as it is used for toe impairments assessment but did not offer any explanation as to which table should have been used for assessment of the midfoot impairments. The Medical Assessor did not examine the midfoot impairment at all nor did he offer any explanation as to why he did not [sic] the midfoot impairment. The midfoot is part of the dorsal region of a foot, and it should have been examined and its impairments should have been assessed.
(d)    It appears that orthopaedic surgeons have used Table 17-14 of AMA 5 as an appropriate table to assess midfoot impairments as there is no specific table for midfoot impairments in the AMA 5.
(e)    Had the Medical Assessor had examined the appellant's midfoot, it was likely that he would have found similar reduction of the midfoot joint movement as Dr Poplawski.
(f)    Ground 2 – failure by the Medical Assessor to assess the scarring on the left lower extremity. The Medical Assessor reported: "The left ankle demonstrated well healed surgical scars". The Medical Assessor did not offer any explanation as to why he did not assess the skin impairment as required.
(g)    The appellant instructed that he was conscious of the scars and showed the Medical Assessor the scars on his left foot and ankle as the Medical Assessor had initially told him not to take his shoes and socks off. The Medical Assessor had taken three photographs of the scars at the time of the assessment after the appellant requested that his scars be seen.
(h)    Had the Medical Assessor applied proper criteria as set out in the Guidelines to assess the appellant's skin impairment, the outcome would have been different.
(i)    The MAC should be set aside and a new MAC issued.
The respondent’s submissions include the following:
(a)    Ground 1 – the appellant asserts that in addition to a left ankle injury, he suffered a left “mid-foot” injury on the dorsal aspect. There has been no admission of pathology (injury) by the respondent or no [sic] finding of the Commission of injury to the dorsal aspect of the left foot. The injury was a pathological disturbance to the anatomical structures in appellant’s left ankle.
(b) The appellant complains of no examination or assessment of impairment in relation to the “midfoot” by the Medical Assessor. There was no injury (pathology) under s 4 of the Workers Compensation Act 1987 (1987 Act) to the anatomical structures of the midfoot. The only injury suffered by the appellant was to the left ankle.
(c)    The Medical Assessor assessed impairment of the left ankle pursuant to Tables 17.11 and 17.12 on page 537 of AMA 5. The Medical Assessor has appropriately assessed impairment of the left ankle pursuant to those tables, and his assessment is not altogether different from Dr Wallace's opinion. The assessment of the Medical Assessor is in accordance with his instructions contained in the referral.
(d)    Dr Poplawski assessed a 15% WPI including “toe impairment”, which relates to the assessment of impairment in the great toe and lesser toes. No injury was alleged or pleaded to the great toe and lesser toes in the ARD.
(e)    The Medical Assessor indicated that Dr Poplawski utilised the incorrect table, specifically Table 17.14 which is for toe impairments, and his mathematics were difficult to follow, although the range of ankle movement found was similar to that at the time of his assessment with respect to the left and right ankles. If Dr Poplawski is applying an assessment by “analogy” in accordance with paragraph 1.23 of the Guidelines he has fallen into error. The assessment of the toes does not compare a measurable impairment resulting from the alleged midfoot condition to a measurable impairment resulting from similar condition (great toes and lesser toes – Table 17.14) with similar impairments of function in performing activities of daily living (paragraph 1.23 of the Guidelines).
(f)    The MAC does not contain a demonstrable error, or an inappropriate application of the criteria. There was no failure by the Medical Assessor to assess the midfoot impairment as inversion and eversion pursuant to Table 17.12 was conducted in any event. The Medical Assessor has provided an assessment of the left lower extremity (left ankle) in accordance with the referral.
(g)    The assessment of the Medical Assessor in relation to the left ankle (left lower extremity) should be confirmed.
(h)    Ground 2 – scarring of the left lower extremity. The referral of the Commission referred to the left lower extremity. There was no referral of assessment of impairment in relation to scarring pursuant to the TEMSKI rating process. The Medical Assessor has not assessed impairment in relation to scarring simply because he was not required to do so by the referral to the Medical Assessor in the referral dated 4 September 2024.
(i)    The ARD does not contain a claim for scarring as an injury or a consequential condition resulting from the accepted left ankle injury.
(j)    The MAC issued by the Medical Assessor and the impairment assessed by the Medical Assessor 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 midfoot impairment

The appellant submitted that the Medical Assessor failed to assess the midfoot impairment noting that AMA 5 defines foot to include hindfoot, midfoot and forefoot. The appellant argued that the Medical Assessor did not examine the midfoot impairment at all and did not offer any explanation as to why he did not do so. The appellant submitted that the midfoot is part of the dorsal region of a foot, and it should have been examined and its impairments should have been assessed.
The Medical Assessor noted under “History relating to the injury” that the appellant said that he sustained a left ankle and foot injury at work on 12 September 2017, after a stack of lengths of steel collapsed and struck him over the dorsal aspect of the left foot.
Under “Findings on physical examination” the Medical Assessor wrote:
“Examination of the cervical spine, thoracic spine and lumbar spine, as well as the right lower limb was normal. Joint movement in the right ankle and foot were normal in all directions.
The left ankle demonstrated well healed surgical scars. Active range of movement of the left ankle was between 0° dorsi flexion and 20° plantar flexion. Inversion was possible to 20° and eversion 0°. Ankle ligaments were stable”.
Under “Summary of injuries and diagnoses” The Medical Assessor wrote:
“Mr Dinuzzo has ongoing pain and stiffness in the left ankle and foot, following severe trauma at work from falling steel, following which he was found to have a large osteochondral defect in the talar dome requiring a number of surgical debridement and repair procedures”.
The Medical Assessor assessed 7% WPI in respect of the left ankle based on the restricted movement identified during the physical examination. He wrote:
“Mr Dinuzzo's left ankle demonstrated reduced movement in plantar flexion at 20° (7% lower extremity impairment), and dorsi flexion at 0° (7% lower extremity impairment). Inversion was reduced to 20°, (2% lower extremity impairment), and eversion was 5°, (2% lower extremity impairment). Therefore there is a total lower extremity impairment of 18% which equates to a 7.2% WPI rounded down to 7% WPI”.
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“Dr Poplawski opined, a 15% WPI with respect to Mr Dinuzzo’s left ankle however he used the incorrect table, specifically Table 17.14 which is for toe impairments and his mathematics were difficult to follow, although the range of ankle movement found was similar to that at the time of my assessment with respect to the left and right ankle.
Dr Wallace provided a report to Lee Legal Group dated 12 March 2024, in which he recorded active movement in the left ankle to be 10° dorsi flexion and 20° plantar flexion with inversion at 20° and eversion 0°. His opinion regarding the left ankle whole person impairment was 4%. His physical findings were similar to those at the time of my examination, however I not agree (sic) with that 4% WPI assessment, as he did not appear to give due weight to both the reduced movement in dorsi flexion and plantar flexion, (as required in the WorkCover Guidelines section 3.17).
Dr Wallace also reduced the impairment by 1% for reduced movement in the right ankle, however, the right ankle was not subject to injury and also demonstrated a full range of movement at the time of my assessment, so therefore such a reduction was not appropriate in my opinion.”
The Appeal Panel reviewed the evidence in the matter.
In a report dated 17 July 2023, Dr Zbigniew Poplawski, orthopaedic surgeon, made a diagnosis of a post-traumatic work-related osteochondral fracture of the dome of the left talus with underlying geode requiring surgery in the form of debridement and bone grafting, with the donor area from the left calcaneus.
Dr Poplawski made the following assessment of WPI:
“Mr Dinuzzo’s left ankle condition is carried out under the range of motion method.
Dorsiflexion– 5 degrees = 15% LEI, flexion 25 degrees = 0% LEI, adding = 15% UEI [sic],
Inversion 20 degrees =2% LEI, eversion 5 degrees = 2% LEI, adding = 4% LEI.
Adding = 19% LEI (Tabled 17.11, 17.12 page 537 AMA 5)
Midfoot joint movement is reduced by 75% as compared to that on the right.
I have assessed this as similar to Table 17.14, total impairment morbidly moderate to severe which = 5% LEI. (Table 17.14 page 537 AMA 5).
Combining 19% / 5% LEI gives 23% LEI =14% WPI.”
Dr Raymond Wallace, orthopaedic surgeon, in a report dated 12 March 2024, noted on examination:
“He has an active range of movement at the left ankle of dorsi flexion 0°, plantar flexion 20° inversion 20° and eversion 0°. There is no effusion at the joint. There is tenderness at the anterior aspect of the tibio-talar joint. His ligaments are stable. He is neurovascularly intact distally.
….
In regard to his left ankle condition, he has suffered a whole person impairment of 4% as a result of loss of range of movement at the joint according to Tables 17.11 and 17.12 page 537 AMA Guides Edition 5.
At his uninjured right ankle, he has a loss of range of movement equivalent to 1% whole person impairment.
Therefore, the difference between the two equals 3% whole person impairment”.

The Appeal Panel noted that the appellant’s left ankle injury was treated by his general practitioners, Dr Elleen McGrath and Dr Kerry Callan, and by a number of orthopaedic specialists, namely, Dr John Negrine, Dr Peter Lam and Dr Jacob Kaplan. The Appeal Panel could not identify any reference to symptoms, problems or restrictions in movement in the left midfoot in the reports and clinical notes provided by those doctors.
There is no evidence apart from Dr Poplawski’s report that midfoot joint movement is reduced of any restriction in midfoot range of motion. Dr Poplawski assessed this restriction as “similar to Table 17.14, total impairment morbidly moderate to severe which = 5% LEI” despite Table 17.14 being a table used for measurement of toe impairment. Dr Poplawski did not explain why he used Table 17.14, nor did he explain how he measured the restriction of movement in the midfoot joint. The Appeal Panel notes that there is no table in AMA 5 which is used to assess midfoot range of motion impairment. The Appeal Panel agree with the comments made by the Medical Assessor in relation to Dr Poplawski’s report as set out above.
The Appeal Panel does not accept that orthopaedic surgeons have used Table 17-14 of AMA 5 as an appropriate table to assess midfoot impairments because there is no specific table for midfoot impairments in the AMA 5. The appellant did not identify any other instances where an orthopaedic surgeon have used Table 17-14 of AMA 5 as an appropriate table to assess midfoot impairments.
The Appeal Panel does not accept the submission that had the Medical Assessor had examined the appellant's midfoot it was likely that he would have found similar reduction of the midfoot joint movement as Dr Poplawski. The Appeal Panel was not persuaded in the circumstances that any assessment of the midfoot would have changed the impairment assessment.
The Appeal Panel on reviewing the evidence is not satisfied that the Medical Assessor made a demonstrable error or applied incorrect criteria in his assessment of the left lower extremity. The Medical Assessor was clearly aware of Dr Poplawski’s assessment of he midfoot. The Appeal Panel is satisfied that the injury to the left lower extremity is an injury to osteochondral defect of the talar dome and left ankle injury. The Appeal Panel was satisfied that the Medical Assessor carried out an adequate examination and properly assessed the range of motion in the hindfoot and ankle.

Ground 2 – failure to assess scarring

The appellant submitted that the Medical Assessor failed to assess the scarring on the left lower extremity and did not offer any explanation as to why he did not assess the skin impairment as required
The Medical Assessor under “Findings on physical examination” wrote: "The left ankle demonstrated well healed surgical scars". The Medical Assessor made no further reference to scarring in the MAC.
The respondent submitted that the referral to the Medical Assessor and there was no referral of assessment of impairment in relation to scarring pursuant to the TEMSKI rating process. The respondent argued that the Medical Assessor has not assessed impairment in relation to scarring simply because he was not required to do so by the referral dated 4 September 2024.
The Appeal Panel accepts that the ARD and the referral do not contain a specific claim for scarring as an injury or a consequential condition resulting from the accepted left ankle injury. Both the ARD and the referral refer to a claim in respect of the left lower extremity.
The Appeal Panel notes that in the s 78 Notice dated 2 May 2024 issued by icare/EML the claim for lump sum compensation was disputed on the basis the injury had not resulted in more than 10% permanent impairment as required by s 66(1) of the 1987 Act. The injury was described in the heading as “Sprain of foot; osteochondritis dissecans, left ankle joint and joints of the left foot; adjustment disorder with mixed anxiety and depressed mood.” The insurer further wrote:
“Based on Dr Wallace’s assessment, we do not agree that you are entitled to permanent impairment lump sum compensation for your Left ankle injury and associated scarring because the permanent impairment is not greater than 10% as required by section 66 (1) of the Workers Compensation Act 1987”.
The appellant made a claim for lump sum compensation on 10 December 2023 in a letter to icare from the appellant’s solicitors, Simpson Partners Lawyers, relying on the report of Dr Poplawski dated 17 July 2023.
In his report dated 17 July 2023, Dr Poplawski wrote:
“Scarring attracts 1% WPI under the TEMSKI scale. (Mr Dinuzzo is conscious of the scars and can locate them readily, there is discolouration of the scars with colour contrast with the surrounding skin, the scars itch at times and are aggravated by rubbing of socks and shoes on occasions).”
The Appeal Panel also noted that Dr Wallace in his report dated 12 March 2024 wrote:
“Examination of the left ankle shows healed arthroscopy portals. There is a 6cm oblique scar at the medial malleolus which has healed to fine white line and is minimally visible”.
Dr Wallace expressed the opinion that in regard to the surgical scar, the appellant suffered zero whole person impairment according to Section 14.6 page 73 of the Guidelines.
Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) is authority for the proposition that a medical dispute is identified by the disputants’ competing claims.
In Skates Leeming JA made the following observations:
“44. The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ … and
46. The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by
Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
His Honour continued:
“48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.
49. The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute…”.
The Appeal Panel is satisfied that the appellant’s claim included a claim for scarring and the insurer had that claim assessed by Dr Wallace and then disputed that the scarring resulted in any impairment.
The appellant failed to provide full particulars of his claim when he served the report of Dr Poplawski on 10 December 2023. The appellant merely referred to $35,510 in respect of 15% WPI. This is not good practice, but having said that, it was clear from Dr Poplawski’s report that the appellant had 14% WPI of the left lower extremity and 1% WPI for scarring (TEMSKI) for a combined total of 15% WPI. The basis of the appellant’s claim was clear. There was a medical dispute that the parties sought to have resolved in the Commission.
The applicant omitted to properly plead the scarring in the ARD, and this unfortunately meant that the referral to the Medical Assessor did not include this component, even though Dr Poplawski’s assessment included scarring (TEMSKI). The Appeal Panel observes that since the decision in Skates more attention should be directed to identifying the various body parts and systems involved in the dispute before the Commission when the referral is made.
The Appeal Panel is satisfied that scarring was part of the claim that was in dispute and referred to the Medical Assessor. In those circumstances, although scarring was not included in the referral, it should have been assessed by the Medical Assessor. The Appeal Panel finds that the failure to assess the scarring was an error as the medical dispute identified between the parties was a dispute concerning the degree of impairment to the left lower extremity, involving an injury to the ankle and scarring as a result of the personal injury on 12 September 2017.
The Appeal Panel have reviewed the evidence in this matter. Dr Poplawski assessed 1% WPI for scarring and Dr Wallace assessed 0% WPI.
Clause 14.7 of the Guidelines provides a table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1). The criteria to be considered are “Description of the scar(s) and/or skin conditions(s) (shape, texture, colour), Location, Contour, ADL/treatment and Adherence to underlying structures”.
Scarring attracts 1% WPI under the TEMSKI scale if claimant is conscious of the scar(s) or skin condition, claimant is able to locate the scar(s) or skin condition, some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes, and there is minor contour defect.
Paragraph 14.8 of the Guidelines provides:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories”.
The Appeal Panel does not consider that the Medical Assessor carried out a proper assessment in relation to scarring. There are four criteria in Table 14.1. The Medical Assessor merely observed that there were well healed surgical scars and did not make any assessment of the criteria in Table 14.1.
Paragraph 14.6 of the Guidelines provides: “A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.” However, the Medical Assessor should consider the criteria in Table 14.1 and then provide an actual assessment of scarring with appropriate reasons.
Having found error, the Appeal Panel will assess impairment, if any, in respect of the scarring on the left lower extremity.
Dr Poplawski found that the appellant is conscious of the scars, can locate them readily, there is discolouration of the scars with colour contrast with the surrounding skin, the scars itch at times and are aggravated by rubbing of socks and shoes on occasions. Dr Wallace noted that examination of the left ankle shows healed arthroscopy portals, and a 6cm oblique scar at the medial malleolus which had healed to fine white line and was minimally visible.
The Appeal Panel considers that the photographs taken by the appellant on 22 October 2024 show a colour contrast with the surrounding skin. The Appeal Panel accepts that the appellant is conscious of the scars and able to easily locate the scars. The scars would also be clearly visible if the appellant wears swimwear or shorts and sandals.
The Appeal Panel considers that 1% WPI best fits the impairment in terms of the appellant’s scarring. The appellant is conscious of the scar, there is colour contrast with surrounding skin, the appellant can locate the scar easily, there are minimal trophic changes. The Appeal Panel notes that no staple or suture marks are visible but clearly the appellant meets all other criteria in the description of the scar. The anatomic location of the scar is visible with some clothing but there is no contour defect. There is negligible effects on activities of daily living, no treatment is required and there is no adherence. On balance, the Appeal Panel was satisfied that the 1% impairment category best fits the scarring.
Having reviewed the evidence, the Appeal Panel is satisfied that an assessment of 1% WPI for scarring is appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 October 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:	W24870/24
Applicant:	Matthew Dinuzzo
Respondent:	Modular Walls Commercial 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 Robin Mitchell 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)
1. Lower left extremity	12/9/2017	Table 17-11 and 17-12, page 537	7%	0	7%
2. Skin TEMSKI	12/9/2017	Table 14.1	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					8%

Carolyn Rimmer
Member

Andrew Porteous

Medical Assessor

Todd Gothelf

Medical Assessor

20 December 2024