Flitcroft v Our Lady Consolation Aged Care Services Ltd
[2025] NSWPICMP 301
•30 April 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Flitcroft v Our Lady Consolation Aged Care Services Ltd [2025] NSWPICMP 301 |
| APPELLANT: | Karen Flitcroft |
| RESPONDENT: | Our Lady Consolation Aged Care Services Ltd |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 30 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) provided adequate reasons for assessing 0% whole person impairment (WPI) in relation to scarring; whether MAC contains demonstrable error or relies on incorrect criteria; no issue in relation to the other assessed body systems; Held – MA erred in failing to provide reasons in accordance with the TEMSKI scale for assessing scarring; MAC contains a demonstrable error; nature of the error necessitated re-examination of the appellant by a member of the Appeal Panel; Appeal Panel found 2% WPI; MAC revoked and new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 December 2024, Karen Flitcroft (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
14 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 sustained physical injuries in the course of her employment with the respondent on 5 June 2019. The accepted injuries to the cervical spine, left upper extremity and scarring (TEMSKI) were referred for assessment. Medical Assessor Crocker assessed the appellant as suffering a 7% whole person impairment (WPI) to each of her cervical spine and left upper extremity. Neither of those findings are the subject of this appeal and are accepted by both parties.
The Medical Assessor found 0% whole person impairment in relation to the accepted scarring. The appellant appeals from this finding, alleging the MAC contains a demonstrable error, and that the assessment was made on the basis of incorrect criteria.
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 Medical Assessor had erred in failing to set out the basis for his finding of 0% WPI suing the TEMSKI criteria as required in the relevant Guidelines.
Having so found, it was necessary for the appellant to be re-examined in order that an assessment of the scarring could be undertaken with reference to the TEMSKI criteria.
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 Drew Dixon of the Appeal Panel conducted an examination of the worker on 31 March 2025 and reported to the Appeal Panel.
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.
In explaining his calculations of WPI, the Medical Assessor made the following comments in relation to scarring:
“With respect to scarring, it is considered that this is consistent with the surgical intervention that has been performed.
Reference needs to be made to Chapter 14, 14.6, pg 73 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) which outlines the following:
‘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’.”
In referring to the medical evidence before him, the Medical Assessor referred to the assessment by the appellant’s independent medical examiner (IME) Dr New of 2% WPI for scarring and stated “I consider that the determination relating to scarring is excessive.” The Medical Assessor also stated the appellant did not indicate she is particularly worried about the surgical scar, which is often covered by clothing.
Noting the appellant had undergone multiple surgical procedures to her left shoulder, on relevant examination, the Medical Assessor found:
“A healed partially oblique surgical scar of approximately 4.5cm was noted to overlie the
anterolateral aspect of the left shoulder girdle. This was mildly irregular in appearance. There was nil loss of contour. Further healed multiple portal surgical scars were also present.”
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 the Medical Assessor failed to provide adequate reasons for the conclusions reached, and did not correctly apply the TEMSKI scales. In relying on the decision in Campbelltown City Council v Vegan (2006) 67 NSWLR 372 (Vegan), the appellant asserted, even accepting as she does that scarring may be present yet rate a 0% impairment, the Medical Assessor had not set out the path of reasons pertaining to his conclusion of 0% WPI. The appellant also submitted the Medical Assessor’s basis for disagreeing with Dr New’s assessment was a bare ipse dixit. The absence of adequate reasons was, the appellant submitted, itself a demonstrable error on the part of the Medical Assessor.
In reply, the respondent submits the Medical Assessor referenced the appropriate Guidelines, and as such the ground of appeal asserting use of incorrect criteria could not be made out. The respondent submitted the Medical Assessor’s findings were consistent with a finding of 0% WPI in accordance with the TEMSKI Guidelines. It submitted that once the MAC was read as a whole, the requirements for a finding of 0% WPI were clearly made out and the Medical Assessor’s reasons were adequate.
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 Vegan, 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.
In this matter, the Medical Assessor erred in failing to adequately set out his reasoning in terms consistent with the TEMSKI criteria. As the respondent noted in its submissions, the SIRA Guidelines (TEMSKI) set out eight criteria for the assessment of scarring. In failing to set out his reasons as to whether or not the appellant’s scarring satisfied those criteria and to what extent, the Medical Assessor has erred in failing to provide sufficient reasons for his determination of the appellant’s scarring at 0% WPI.
Having found error on the part of the Medical Assessor, the Appeal Panel determined it was necessary for the appellant’s scarring to be re-examined.
On 31 March 2025, Medical Assessor Drew Dixon undertook an examination of the appellant’s scarring. The findings of that examination are as follows.
The appellant has a surgical scar at her left shoulder measuring 4cm. It is visible with summer clothing and shows colour contrast. There is some loss of contour and there are visible suture marks. The scar is tender and painful and if bumped, impacts on the appellant’s activities of daily living (ADLs). The appellant can readily localise the scar and remains conscious of it. It was tender centrally.
There were two arthroscopic portals anteriorly that were reasonably healed and there was an arthroscopic portal laterally and one posteriorly that were mildly tender but reasonably healed.
From the TEMSKI Scale the best fit is 2% whole person impairment for the scarring of this claimant's left shoulder.
The findings of the Appeal Panel on re-examination materially differ from those of the Medical Assessor. Consequently, the error contained within the MAC has had a material effect on the assessment of the appellant’s WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
14 November 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: | W25886/24 |
Applicant: | Karen Flitcroft |
Respondent: | Our Lady Consolation Aged Care Services 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 David Crocker 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 | 5.6.19 | Ch.4, pp, 24-30 | Ch 15, 15.6, Table 15-5, pp 392-395; DRE II | 7% | - | 7% |
| Left upper extremity | 5.6.19 | Ch 2, pp 10-12 | Ch 16, 16.4i, Figs 16-38 – 16.46, pp 474-479 | 7% | - | 7% |
| Scarring (TEMSKI) | 5.6.19 | Ch 14, Table 14.1, pp 73-76 | Ch 8, 8.7, Table 8-2, pp 178-189 | 2% | - | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
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.
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