Hallam v Woolworths Group Ltd
[2025] NSWPICMP 56
•31 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hallam v Woolworths Group Ltd [2025] NSWPICMP 56 |
| APPELLANT: | Megan Hallam |
| RESPONDENT: | Woolworths Group Limited |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 31 January 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant appealed against finding of Medical Assessor (MA) that she did not have complex regional pain syndrome (CRPS), and therefore the MA made no assessment of whole person impairment (WPI) with respect to CRPS; and asserted error in MA’s assessment of WPI with respect to injury to left lower extremity; application by appellant to rely on fresh evidence, being statement commenting on MA’s examination, refused; consideration of Lukacevic v Coates Hire Operations Pty Limited, Petrovic v BC Serv No 14 Pty Limited and Ors, Pitsonis v Registrar of the Workers Compensation Commission and Anor, Wingfoot Australia Partners Pty Ltd v Kocak, Campbelltown City Council v Vegan & Ors, State of New South Wales (NSW Department of Education) v Kaur, Skates v Hills Industries Ltd; Held – MA did not err in failing to assess CRPS; MA erred in assessing WPI as a result of injury to left lower extremity; error corrected by Panel; Medical Assessment Certificate revoked and fresh certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 August 2024 Megan Hallam lodged an Application to Appeal Against the Decision of a Medical Assessor (Application to Appeal). The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
30 July 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 was employed by the respondent as a store manager at a Dan Murphy’s store.
On 15 December 2017, the appellant’s left foot was stuck between a pallet jack and a wall, and she sustained a crush injury of her left foot and ankle. The appellant also claims to have developed complex regional pain syndrome (CRPS).
The appellant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment compensation in respect of 33% whole person impairment (WPI), in accordance with the assessment of Associate Professor Tillman Wolf Boesel, contained in his report dated 17 November 2023.
The respondent offered the appellant permanent impairment compensation in respect of 25% WPI, in accordance with the assessment of Dr Tim Ho, contained in his report dated
10 March 2022.The appellant did not accept the respondent’s offer of settlement.
On 24 April 2024 the appellant lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (Application).
The appellant claimed that on 15 December 2017, she sustained a significant crush injury to her left foot and ankle and had “undergone a number of interventional therapies for CRPS.”
The appellant claimed the sum of $96,170 in respect of 33% WPI as a result of injury to her left lower extremity, and chronic pain.
The respondent lodged a Reply to the Application on 15 May 2024.
The medical dispute was referred to Dr Kuru.
Dr Kuru issued a MAC on 30 July 2024.
Dr Kuru assessed the appellant’s WPI as 9% as a result of injury to her left lower extremity. Dr Kuru did not make a diagnosis of CRPS and accordingly assessed 0% WPI for that condition.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because it considered that it had sufficient evidence before it to determine the appeal.
Fresh evidence and additional ground of appeal
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 the 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 made no reference to any application to admit fresh evidence in her Application to Appeal, and in fact indicated that she did not seek leave to rely on additional relevant information.
It was only after the respondent had lodged its submissions in response to the appeal that the appellant sought to rely on “Additional Submissions in Response”, including her further statement dated 2 August 2024.
The appellant also sought in her additional submissions to raise a further ground of appeal.
The appellant asserted that Dr Kuru had erred in assessing range of motion and lower extremity impairment.
As the respondent has addressed the appellant’s attempt to adduce further evidence and rely on an additional ground of appeal, there is no prejudice to the respondent in allowing the additional ground of appeal to be raised. The respondent has not submitted that the additional ground of appeal should not be considered.
The appellant seeks to admit the following evidence:
(a) the appellant’s statement dated 2 August 2024.
The appellant submits that the evidence is submitted to identify the errors in the assessment undertaken by Dr Kuru.
In her further submissions, the appellant submitted that her statement supported her initial submissions that the Medical Assessor had failed to assess CRPS and affirmed the demonstrable error in failing to assess WPI resulting from ankylosis of all toes on the left lower extremity.
The respondent submits that the appellant offers no basis on which her statement should be admitted but assumes she would point to s 328(3) of the 1998 Act.
The respondent submits that seeking to admit further evidence to query or undermine the methods of a Medical Assessor’s assessment was dealt with in Lukacevic v Coates Hire Operations Pty Limited.[1] It also referred to Bellenger v Workmates Australia Pty Ltd.[2]
[1] [2011] NSWCA 112 (Lukacevic).
[2] [2021] NSWPICMP 50.
In summary, the respondent submitted that a Medical Appeal Panel must be cautious when dealing with the observations of a worker who has an interest in the outcome of the assessment. This is particularly true when, as in this case, the appellant’s observations were based on memories of an examination that took place several weeks earlier. What the appellant said was unreliable and/or of limited clinical significance.
“Additional relevant information” has been held to be:
(a) evidence or information of a medical kind or that is directly related to the decision that is required to be made by a Medical Assessor (Petrovic v BC Serv No 14 Pty Limited and Ors);[3]
(b) evidence that is not a competing assertion as to what transpired during the medical examination (Pitsonis v Registrar of the Workers Compensation Commission and Anor);[4]
(c) evidence or information that cannot be relied upon to prove the grounds of appeal for incorrect criteria and/or demonstrable error (Pitsonis), or
(d) evidence or information that is not qualified as “fresh evidence” under s 328 of the 1998 Act (Lukacevic).
[3] [2007] NSWSC 1156 (Petrovic).
[4] [2007] NSWSC 50 (Pitsonis).
In Phillips v JW Williamson and RW Williamson trading as Williamson Bros,[5] Schmidt J contrasted the factual dispute in Lukacevic about what took place at the examination with the availability of additional probative medical material which did not exist at the time of the examination by the Approved Medical Specialist (AMS), on which the worker sought to rely to demonstrate errors by the AMS.
[5] [2016] NSWSC 1681.
In Petrovic, Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s 327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s 326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s 327(3)(c) and (d) but they do not come within subs 327(3)(b).
It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
His Honour added that if statements going to the way in which the medical assessment was conducted were additional relevant information, “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.”
In Lukacevic, Hodgson JA said (at [78]):
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP [Appeal Panel] 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.”
Handley AJA said in Lukacevic (at [111]):
“The Panel’s reasons for refusing to receive the new evidence…referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel’s discretion, and it cannot possibly be said that its decision was irrational.”
The only submission advanced by the appellant in support of the admission of her statement is that it is submitted to identify errors in the Medical Assessor’s assessment.
The appellant’s statement is not probative, she does not seek to rely on additional probative medical material, and, on the basis of the above authorities, her statement dated
2 August 2024 is not admitted.
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.
In her initial submissions, the appellant submits that:
· the Medical Assessor failed to provide adequate reasoning as to why CRPS was not assessed (demonstrable error), and
· the Medical Assessor failed to assess WPI resulting from the ankylosis of all toes on the left lower extremity (demonstrable error, or in the alternative, use of incorrect criteria).
The appellant submits that the Medical Assessor failed to adequately apply the criteria in Table 17.1 of the Guidelines, as he did not specifically confirm or deny that the appellant had continuing pain that was disproportionate to any casual [sic: causal] event.
The appellant submits that the Medical Assessor failed to state whether the appellant was reporting at least one symptom in the sensory, vasomotor, sudomotor/oedema or motor/trophic categories. (Emphasis in original).
The Medical Assessor simply stated that he “did not make any findings consistent with SIRA page 81, table 17.1 to confirm a diagnosis” of CRPS. The appellant submits this is not in line with the required assessment, and ought to have been completed in accordance with Table 17.1; and this reasoning is not sufficient to determine whether the appellant satisfied the criteria of CRPS.
The appellant submits the Medical Assessor’s opinion is contrary to the balance of the medical evidence, both that of the independent medical assessors and of the treating doctors.
The appellant submits the Medical Assessor reached his determination without engaging with the medical evidence or providing sufficient reasoning to understand the basis of his determination.
The appellant accepts that the Medical Assessor’s reasons did not need to be extensive or provide a detailed explanation of the criteria he applied in reaching a professional judgment.[6]
[6] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
The appellant submits that much more was required to understand a decision that went against all evidence before the Medical Assessor, and which does not appear to have been addressed with the appellant. The Medical Assessor did not provide an adequate explanation as to how the assessment was reached.
The appellant refers to the decision of Basten JA in Campbelltown City Council v Vegan & Ors.[7]
[7] [2006] NSWCA 284 (Vegan).
The appellant submits that while a MAC is to be given a beneficial construction,[8] this does not mean that any ambiguity is [sic: in] reasoning, including a lack thereof, should be resolved in the Medical Assessor’s favour.
[8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
The appellant submits there is no discernible justification for the Medical Assessor’s decision.[9]
[9] Minister of Immigration and Border Protection v SZVFW [2018] HCA 30.
The appellant submits that she has undergone calcaneocuboid joint fusion. This results in additional permanent impairment, which is to be combined with loss of range of motion – cl 3.18 of the Guidelines. The appellant refers to the assessment of Dr Ho, who allowed 6% for the fusion surgery. The failure of the Medical Assessor to do so amounts to demonstrable error, or alternatively shows incorrect criteria was used.
In her further submissions, the appellant submits that:
(a) the Medical Assessor erred in assessing range of motion of the left lower extremity, “as well as other ailments identified by the Appellant during the examination and by the medical evidence served” with the Application.
The appellant refers to her additional evidence, which has not been admitted, and the submissions have not been considered.
The appellant submits that Dr Kuru incorrectly calculated range of motion of her left ankle, calculating 21% lower extremity impairment, equating to 9% WPI. She submits the correct calculation is 29% lower extremity impairment, equating to 12% WPI.
The appellant submits that further ailments were not included or assessed, albeit the medical evidence in the Application, which confirmed their existence, and the appellant’s complaints on the day of the assessment.
The appellant submits that, in addition to ankylosis of the toes, the further ailments are peripheral nerve damage; saphenous; superficial peroneal; medial plantar; lateral plantar; sural; sciatic; varus and valgus impairment and range of motion; scarring/skin loss; arthritis; calcaneocuboid joint; ankle; metatarsal; and knee.
The appellant asserts that a re-examination is necessary, the MAC ought to be revoked, pursuant to s 328(5) of the 1998 Act, and a new MAC issued pursuant to s 326 of the Act.
In reply, the respondent submits that:
(a) The assertion that the assessment was made on the basis of incorrect criteria is “really more of an afterthought”. The primary arguments are with respect to demonstrable error.
(b) It is of critical importance to recognise a key principle in the assessment of WPI, as detailed in cl 1.6(a) of the Guidelines.
(c) Table 17.1 also imposes a need for symptoms to be present at the time of the relevant examination.
(d) Dr Kuru did not identify any symptoms meeting the criteria in row 3 of Table 17.1 during his examination of the appellant. Consequently, the appellant did not meet the criteria for CRPS. It was for this reason that no WPI in respect of CRPS was made, as opposed to any error in the approach adopted.
(e) It was not necessary for Dr Kuru to recite all the material provided to him.[10]
[10] Insurance Australia Group Ltd t/as NRMA Insurance v Motor Accidents Authority of NSW [2013] NSWSC 318, per Harrison AsJ at [60]; and Lederer v Insurance Australia Limited trading as NRMA Insurance ACN000016722 [2022] NSWSC 322 per Brereton JA at [34].
(f) The appellant failed because when she was examined by Dr Kuru, he did not find any of the necessary symptoms. There was no error in the MAC or in respect of Dr Kuru’s non-assessment of WPI for CRPS.
(g) The position for which the respondent advocates is entirely consistent with the decision in Turner v Truss T Frame Timbers Pty Ltd.[11]
[11] [2021] NSWPICMP 9 (at [30]).
(h) As regards the alleged failure to provide sufficient reasons, the respondent relies on Wingfoot Australia Partners Pty Ltd v Kocak.[12] This applies with equal force to the MAC.[13]
[12] ([2013] HCA 43 (Wingfoot).
[13] Western Sydney Local Health District v Chan [2015] NSWSC 1968 (at [13]).
(i) The task confronting Dr Kuru was as described by Basten AJ in Rahman v Insurance Australia Ltd t/as NRMA Insurance.[14]
[14] [2022] NSWSC 1079.
(j) The reasons must be fairly read as a whole.[15]
[15] D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201.
(k) The reasons need not be lengthy and a single sentence may suffice.[16]
(l) The Court is concerned with the reasoning process to assess whether there has been error in arriving at the conclusion. The relevant conclusion is the absence of the necessary symptoms to meet the diagnostic criteria of CRPS, so there is no rateable WPI. There is no reasoning to be applied or explanation needed. The symptoms were present or they were not. The symptoms were not present when Dr Kuru assessed the appellant and he stated as much. In that context, and informed by the authorities, nothing more needed to be said.
(m) It might be argued by the appellant that, to comply with the Wingfoot criteria,
Dr Kuru needed to say what symptoms were not present. That is without merit as it is contrary to the obligation on an administrative decision maker to give reasons. If the appellant’s contention were accepted, it would necessitate an AMS [sic] detailing every conceivable symptom, which may be indicative of any condition, as having not been observed during an examination. The better position is that, by not recording symptoms, it is to be taken they were absent.(n) The appellant is merely advocating the inclusion of greater detail, which will not alter the final outcome.
(o) If there was any doubt that Dr Kuru strictly applied Table 17.1, he addressed each of the signs in the exact order in which they appear in the Table. Dr Kuru also applied the light touch test (noting that this is an alternative to the pin prick). “There is little doubt that Dr Kuru knew exactly what he was doing.”
(p) As regards failure to assess impairment for ankylosis of the toes, Table 3.1 deals with ankylosis of a joint where a “triple” joint ankylosis is awarded 6% WPI and subtalar joint ankylosis is 4% WPI. Neither a triple joint arthrodesis nor a subtalar fusion has occurred. There has been a calcaneocuboid fusion.
(q) Dr Ho does not award 6% WPI based on the fusion (surgery), but rather based on ankylosis of the toes (he does not say which) in a functional position. Dr Kuru makes no such finding. He only observes a reduced range of motion in the first metatarsophalangeal joint, and awards impairment accordingly.
(r) Much like the CRPS, this is a case of the Medical Assessor making different findings on the date of examination. No error can be found in Dr Kuru’s reasoning.
(s) There is no reason to suspect there is any error in the MAC. The appeal should be dismissed.
[16] Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [4]-[9] per Leeming JA (Zahed).
In response to the further grounds of appeal raised by the appellant, the respondent submits:
(a) The ground that the Medical Assessor failed to properly assess the appellant relies on the appellant's further statement, which seeks to cavil with the way the Medical Assessor conducted his examination. The respondent’s submissions have been discussed above.
(b) It does not admit that the so-called errors in assessing range of motion and lower extremity impairment do, in fact, constitute errors. If they do, the error is mathematical only and can be corrected by the Medical Assessor by way of reconsideration, or by 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.
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 judgment.
The role of the Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[17] The Court held that while prima facie the Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
[17] [2008] NSWCA 116.
Section 327(2) of the 1998 Act has been amended, with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[18] Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
[18] [2013] NSWSC 1792.
Medical assessment certificate
The parts of the MAC issued by the Medical Assessor that are relevant to the appeal are set out, where relevant, below.
Under “History relating to the injury”, at p 2 of the MAC, the Medical Assessor recorded:
“On the date of injury, Ms Hallam was operating a pallet jack. Unfortunately, her left foot was caught between the pallet jack and the wall. She sustained multiple metatarsal fractures to her left foot. She was unable to walk after the accident and an ambulance was called. She was taken to Nepean Hospital. After two days, she underwent reduction and internal fixation of her first metatarsal fracture with K-wire stabilisation to the second and third of her metatarsal fractures. She was in a walking boot for three months. When she came out of the boot, she underwent physiotherapy and hydrotherapy. She had ongoing pain over the lateral aspect of her ankle. She went on to have further imaging which demonstrated osteoarthritis of the calcaneocuboid joint.
On 10 April 2019 she underwent removal of the plate from the first metatarsal and lysis of the extensor hallucis longus tendon. She had debridement of the calcaneocuboid joint. Unfortunately, she had persistent pain over the calcaneocuboid joint…[On] 21 May 2020, Dr [Brian] Martin, Foot and Ankle Surgeon, noted heel inversion and a high arch, which he felt were contributing to post traumatic arthritis and pain in the calcaneocuboid joint. He recommended proceeding with a calcaneosteotomy, plantar fascia release and calcaneocuboid joint fusion. This was undertaken on 23 July 2020.
In February 2019, Ms Hallam had been referred to Dr [Jane] Standen, Pain Management Specialist…[On] 1 March 2020, Dr Standen notes having seen Ms Hallam initially on 20 February 2019. Dr Standen states Ms Hallam ‘meets the Budapest criteria for complex regional pain syndrome of the left foot and ankle.’ She summarised treatment as having consisted of education, desensitisation, creams, antineuropathic agents which were ceased due to adverse effects, physiotherapy, lumbar sympathetic blocks, piriformis muscle injection and intravenous ketamine infusions, all of which were unsuccessful. (Emphasis in original).
Ms Hallam is now seeing Dr Dutta, another Pain Management Specialist. He recommended CBD oil. She sees an exercise physiologist. She sees a pain management psychologist. She is on Arcoxia and paracetamol.
She has stiffness in her hindfoot. She has pain over the lateral aspect of the foot. Ms Hallam also reports pain in her back and pain in the lateral aspect of the left hip.
…”
Under “Findings on physical examination” at p 3 of the MAC, the Medical Assessor recorded:
“On examinations [sic] he [sic] was a well looking woman in no obvious distress. There was slight varus of her first metatarsal on the left. Trendelenburg’s test was normal. Heel-toe stance was normal. There were no abnormal callosities on the soles of the feet, which had normal callosities. Range of motion in the ankles was assessed as follows:
MOVEMENT
LEFT
RIGHT
Dorsiflexion
0°
20°
Plantar flexion
10°
40°
Inversion
0°
30°
Eversion
0°
20°
Range of motion of the first metatarsal was 30° of dorsiflexion to 0° of flexion. There was no altered sensation to light touch. The surgical wounds over the first metatarsal and calcaneocuboid joint were well healed and barely visible, without complication.
Gastrocnemius circumference was 34cm and symmetrical.
There was no temperature asymmetry or skin colour change at the time of assessment. There was no evidence of oedema or sweating asymmetry. There were no trophic changes of the nails.”
Under “Details and dates of special investigations” at pp 3 and 4 of the MAC, the Medical Assessor listed the investigations of the appellant’s left foot, consisting of a series of X-rays, from 2017 to 2020, and a bone scan dated 12 October 2021.
Under “Summary of injuries and diagnoses”, at p 4 of the MAC, the Medical Assessor recorded:
“Ms Hallam got her foot caught between a wall and pallet jack at work and sustained fractures to the first, second and third metatarsals. She has had persistent pain in her foot and has undergone a calcaneosteotomy and calcaneocuboid fusion. She has been diagnosed with complex regional pain syndrome.”
Under “Consistency of presentation”, at p 4 of the MAC, the Medical Assessor recorded:
“Ms Hallam was cooperative throughout the assessment.”
Under “Evaluation of permanent impairment”, at 4 of the MAC, the Medical Assessor recorded:
“…
a. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system:
No.
b. Have all body parts/systems stabilised/reached maximum medical improvement?
Yes.
c. If not, please list those injuries not yet stable/at maximum medical improvement:
Not applicable.
d. If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?
Not applicable.
e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Not applicable.”
Under “The facts on which the assessment is based”, at p 5 of the MAC, the Medical Assessor recorded:
“The facts on which I have based my assessment of whole person impairment are:
A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.”
Under “Reasons for assessment”, at p 5 of the MAC, the Medical Assessor has recorded:
“a. My opinion and assessment of whole person impairment:
9% whole person impairment.
In making that assessment I have taken account of the following matters:
Review of the material provided and a detailed examination of the claimant.
b. An explanation of my calculations (if applicable):
Restricted range of motion in the ankle was assessed according to AMA 5, page 536, 17.12 and SIRA page 15, 3.17. On the basis of restricted range of motion, 21% lower extremity impairment was assessed. According to AMA 5 page 537, 17.14 a further 2% lower extremity impairment is assessed for restricted range of motion of the first metatarsophalangeal joint.
I did not detect sensory alteration of the foot today and have not assessed impairment for sensory disturbance.
I did not make findings consistent with SIRA page 81, Table 17.1 to confirm a diagnosis of complex regional pain syndrome. I note that according to the Guidelines, ‘A sign is included only if observed and documented at the time of the impairment evaluation.’ Specifically, at the time of the assessment, I did not note evidence of temperature asymmetry or asymmetric skin colour change, evidence of oedema or sweating asymmetry. (Emphasis in original).
Worksheet/actual calculations attached?
No.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
With respect to the report by Dr [sic] Boesel dated 17 November 2023, I note he did detect clinical findings in each of the four criteria required by SIRA page 81, Table 17.1. As above, those findings were not evident at the time of my examination today.
With respect to the report by Dr Ho dated 5 April 2022, again he observed clinical signs at the time of the assessment consistent with CRPS that were not evident at the time of my assessment today.
d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
…”
The Medical Assessor provided the following Table 2:
Body Part or system
Date of Injury
Chapter, page and paragraph number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to s 323 for pre-existing injury, condition, or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Left lower extremity
15/12/2017
P 15 3.17
P 536 17.12
P 537 17.14
9%
0
9%
CRPS
15/12/2017
P 81 T 17.1
0%
0
0%
Total % WPI (the Combined Table values of all sub-totals)
9%
Appellant’s evidence
The appellant’s statement is dated 12 April 2024.
On 15 December 2017, the appellant was operating an electric pallet jack while walking backwards. The weight of the load on the pallet jack shifted, causing the pallet jack to move towards the appellant.
The appellant’s left foot became stuck between the pallet jack and wall, crushing her left foot and ankle.
The appellant was taken by ambulance to Nepean Public Hospital. She underwent open reduction surgery and internal fixation, performed by Dr Philip Markham, on
17 December 2017.The appellant was discharged from hospital on 19 December 2017. She was on crutches and required to wear a moon boot for 12 to 18 weeks.
The appellant was referred for physiotherapy and podiatry. She continued to suffer from pain and reduced mobility in her left foot and ankle. She ceased taking pain-killing medication in early 2018, due to severe side effects.
The appellant’s pain was in the form of a constant ache with occasional sharp jabbing and burning, as well as pins and needles. She became unable to stand for longer than 10 minutes and unable to walk for longer than 20 minutes.
In June 2018, the appellant’s general practitioner, Dr Brian Richardson, referred her for MRI and bone scans. The results suggested CRPS.
On 26 November 2018, the appellant was referred to foot and ankle surgeon Dr Brian Martin, who in turn referred her to pain specialist Dr Jane Standen.
On 20 February 2019, Dr Standen diagnosed that the appellant met the Budapest criteria for CRPS.
On 10 April 2019, the appellant underwent surgery at the hands of Dr Martin, with some initial relief of her pain and discomfort. She was once again required to wear a moon boot and referred for physiotherapy and hydrotherapy.
The appellant’s pain deteriorated, and she began to experience pain, stiffness and limited range of motion in her left foot and ankle, which was more severe than after her 2017 surgery.
Dr Martin believed the appellant’s only other option was fusion surgery but wanted to explore all other options with Dr Standen. He also recommended that the appellant seek a second opinion from Dr David Carmody.
The appellant underwent a trial of three lumbar sympathetic blocks from August to October 2019, with no noticeable improvement to pain or mobility.
On 5 August 2019, Dr Carmody also diagnosed the appellant with CRPS. Dr Carmody recommended that the appellant undergo a cortisone injection, and failing further treatment, fusion surgery would be the only other option to consider.
The appellant’s pain deteriorated further and began to radiate up to her left hip.
In December 2019, the appellant had discussed with Dr Standen a trial of a spinal cord stimulator. The appellant had severe allergic reactions to adhesives, and did not pursue this treatment.
In February 2020, Dr Standen recommended that the appellant engage in the “ADAPT” intensive pain management program at Royal North Shore Hospital (RNSH), and undergo MRI scan to her lumbar spine, to exclude the possibility that spinal or hip pathology was contributing to her hip pain.
On 18 March 2020, Dr Standen recommended that the appellant undergo diagnostic local anaesthetic and steroid injection into the left piriformis, and have Dr Martin review her MRI scans.
On 1 April 2020, Dr Martin advised the appellant to have a cortisone injection into the calcaneal-cuboid joint. Dr Martin stated that fusion surgery could be feasible if the injection did not alleviate the appellant’s pain.
The appellant underwent cortisone injection to her left calcaneal-cuboid joint on
14 May 2020. Her pain and discomfort were not alleviated, and she had a mild allergic reaction known as facial flushing.On 10 June 2020, the appellant underwent injection into her left piriformis, which did not alleviate her pain. She had a severe allergic reaction, with burns to her face.
On 23 July 2020, Dr Martin performed calcaneocuboid joint fusion with plantar fascia release and calcaneal osteotomy to the appellant’s left foot and ankle. She was required to be in a cast and on crutches for six weeks.
The appellant continued to experience pain and discomfort in her left ankle and foot. She attempted to manage this with medication, which did not alleviate it. Her pain and discomfort were most severe in the evenings, reaching 8 to 9 out of 10.
On 4 September 2020, Dr Martin removed the appellant’s cast. He recommended that she begin to weight-bear in a moon boot “as tolerated” and commence physiotherapy. She required the moon boot for 12 to 18 weeks.
The appellant’s pain and discomfort persisted. Her left foot and ankle continued to undergo frequent colour changes and swelling. She could only partially weight-bear on her left foot and ankle.
On 18 September 2020, Dr Standen prescribed pain-relief cream, which did not alleviate the appellant’s pain and discomfort.
In October 2020, the appellant participated in a pain management course, which was unsuccessful.
In September 2020 and October 2020, Dr Standen requested that the appellant undergo Ketamine injections for seven days. Liability for the treatment was declined by EML.
The appellant consulted psychologist Suzanne Gibson on numerous occasions.
On 22 April 2021, the appellant attended an IME (independent medical examination) with A/Prof Boesel.
In July 2021, the appellant underwent Ketamine injections for seven days. Her pain was not alleviated. She had a severe allergic reaction from adhesives used to fix the needles in place.
The appellant had continued to undergo physiotherapy and exercise physiotherapy until recently, when the insurer disputed the treatment.
On 5 April 2022, the appellant saw Dr Ho for a WPI assessment. She did not believe he assessed her WPI correctly.
The appellant was sent for IME by EML on 23 September 2022. EML refused to release the reports and stated it was not going to rely on them.
On 17 November 2023, the appellant saw A/Prof Boesel for a WPI assessment as she still did not believe Dr Ho had scored [her] correctly, and EML was withholding the WPI assessment it had arranged.
A/Prof Boesel assessed the appellant as 33% WPI. EML had offered to settle for 25% WPI, relying on Dr Ho’s assessment, which the appellant had rejected.
The appellant described her symptoms as:
· pain in her left ankle and foot, fluctuating in severity, usually 7 out of 10;
· sensitive to touch on the soles [sic], toes and foot;
· swelling and clamminess on the sole of her foot;
· colour changes and discolouration;
· temperature changes of coldness;
· tingling and pins and needles;
· numbness, tremor to her toes, and weakness, and
· itchiness.
The appellant’s symptoms worsened when she engaged in activity that involved the use of her left foot or ankle.
The appellant took anti-inflammatory medication when needed. She is unable to take most pain-killer or other medications due to severe side effects and allergies, including anaphylaxis.
The appellant has attached a document headed “Appendix E – Activities of Daily Living” (ADLs).
Medical evidence
Dr Jane Standen – pain physician and interventional pain specialist
Dr Standen reported to Dr Richardson first on 20 February 2019.
Dr Standen recorded a consistent history of the injury and the appellant’s treatment.
Dr Standen opined that the appellant met the Budapest criteria for CRPS of the left foot and ankle.
Dr Standen continued to treat the appellant, and consistently diagnosed CRPS.
Dr Brian Martin – foot and ankle surgeon; paediatric orthopaedic surgeon
Dr Martin reported to the appellant’s solicitors on 27 October 2021.
Dr Martin recorded a consistent history of the appellant’s injury and treatment.
The appellant’s fractures and bony injury had healed satisfactorily. However, Dr Martin opined that it was unlikely that the appellant would make significant improvement in her pain and function.
Dr Martin opined that the appellant’s orthopaedic injuries had reached maximum medical improvement, but her CRPS was outside his field of expertise.
Dr Tim Ho – pain medicine and rehabilitation medicine physician
Dr Ho provided a report to the appellant’s solicitors, dated 10 March 2022. It referred to a consultation on 10 March 2022 and a request from the solicitors for further information, dated 13 April 2022 (which is not in evidence), so the date of the report would appear to be incorrect.
In any event, Dr Ho noted the following:
· fusion cannot be combined with CRPS;
· ankylosis of the toes may be assessed;
· active range of motion had been assessed for impairment calculation and could not be further combined with ankylosis;
· arthritis could not be combined with active range of motion assessment, and
· lumbar spine was not assessed during the examination on 10 March 2022.
Dr Ho reported that there was sufficient time for the appellant’s injury to be stable and permanent.
The appellant’s assessable pain related diagnosis was CRPS Type 1 of the left lower extremity.
Dr Ho opined that the appellant satisfied the Budapest criteria for CRPS of the left ankle:
(a) Continuing pain, which was disproportionate to any causal event.
(b) Reported symptoms, specifically:
(i)Sensory – reported allodynia;
(ii)Vasomotor – reported asymmetrical colour and temperature;
(iii)Sudomotor – reported asymmetrical oedema, and
(iv)Motor/trophic – reported decreased range of joint motion, skin/hair change.
(c) Signs on examination, specifically:
(i)Sensory – clinical finding of superficial/mechanical allodynia;
(ii)Vasomotor – clinical finding of skin temperature and colour asymmetry;
(iii)Sudomotor – clinical finding of asymmetrical oedema, and
(iv)Motor/trophic - clinical finding of reduced active range of motion of the left ankle and trophic change (hair distribution).
(d) There was no other diagnosis that better explained the signs and symptoms.
The appellant’s impairment calculations were based on loss of motion of the left ankle; toes; sensory deficit and pain of the left lower extremity, and scar (from surgery).
Dr Ho assessed 12% WPI with respect to the appellant’s left lower extremity; 6% WPI with respect to ankylosis of all toes in functional position; 8% WPI as a result of sensory deficit and pain of the left lower extremity (without motor deficit); and 1% for TEMSKI (scarring). The total WPI was 25%.
Dr Ho again reported on 5 April 2022. This report also referred to the examination on
10 March 2022.Dr Ho recorded a consistent history of the injury and the appellant’s treatment. He noted that the appellant had been diagnosed with CRPS by Dr Standen.
At the time of the assessment, the appellant had ongoing exercise physiology and psychology treatment.
Dr Ho recorded symptoms of constant fluctuating pain over the appellant’s ankle/foot, lower extremity, and buttock. There were associated symptoms of coldness, increased hair growth, purple colour change, sweating, reduced active range of motion/power, and swelling of the left ankle and foot.
The appellant also had painful coldness, electrical pain, tingling, pins and needles, and numbness and itching of the left ankle and foot, suggesting neuropathic pain.
Dr Ho noted hypersensitivity to touch and pressure to the left ankle and foot. The appellant reported that her pain was worse with usual activities, and spontaneous nocturnal pain, suggesting hypersensitivity.
Dr Ho reported that common sensory testing showed:
· superficial allodynia of the left lateral ankle;
· dysaesthesia over the left lateral ankle;
· mechanical allodynia over the ankle, foot, and left buttock;
· reduced temperature and some purple colouration of the left ankle/foot;
· mild oedema of the left ankle/foot;
· no significant sweating asymmetry, and
· reduced range of motion and trophic change of the skin and increased hair growth.
Dr Ho noted that the signs remained persistent, despite healing of the fracture, and they were not better explained by another condition.
Dr Ho’s diagnoses for the appellant’s chronic pain syndrome were:
(a) Chronic neuropathic/nociplastic left ankle/foot pain, secondary to CRPS Type 1 (satisfying Budapest clinical criteria), triggered above injuries.
(b) Chronic nociplastic left lower extremity pain and left buttock pain secondary to central sensitisation.
(c) Cortical augmentation and some maladaptive coping with adjustment disorder, and component of some catastrophisation, and reduced self-efficacy.
Dr Ho opined that the above diagnoses were triggered by the index event and with the injuries as above, contributed to by central sensitisation, perpetuated by maladaptive pain coping. The appellant’s employment was the main contributing factor to her chronic pain syndrome, and the chronic pain disease process was ongoing and likely to be chronic.
Dr Ho referred to the same Budapest criteria as in his report dated 10 March 2022.
In this report, Dr Ho assessed 12% WPI as a result of injury to the appellant’s left ankle; 8% WPI as a result of sensory deficit and pain of the left lower extremity (without motor deficit); and 1% WPI as a result of TEMSKI (scarring). The total WPI was 20%.
Dr Ho’s last report is dated 2 May 2022. He again referred to the appellant’s solicitors’ letter of instruction dated 13 April 2022, requesting clarification of his previous report. He referred to his report dated 5 April 2022.
“[A]s per requested”, Dr Ho amended to note the following:
(a) The appellant did not try Panadeine and had not taken any medication containing Codeine since 2011.
(b) The appellant did not participate in the ADAPT pain management program at RNSH but participated in a pain management program with Amelio Health via correspondence.
(c) The appellant smoked approximately 20 cigarettes a day.
(d) The appellant reported she had difficulties with personal ADLs and assistance was needed.
Dr Ho added that there was no noted active range of motion of the appellant’s toes during the physical examination.
A/Prof Tillman Wolf Boesel – pain medicine physician
A/Prof Boesel reported first on 22 April 2021.
A/Prof Boesel recorded a consistent history of the injury and the appellant’s treatment.
With respect to the specific CRPS criteria, A/Prof Boesel recorded:
· sensory – hypersensitivity and allodynia;
· vasomotor – intermittent coldness and blueness of the left foot;
· sudomotor/oedema – intermittent swelling and abnormal sweating of the left foot, and
· motor/trophic – decreased range of mid-foot and ankle motion with intermittent dystonia (clawed toes and extra hair growth on the calf).
A/Prof Boesel diagnosed the appellant with CRPS type 1.
A/Prof Boesel again reported on 17 November 2023.
A/Prof Boesel recorded having last reviewed the appellant in 2022.
A/Prof Boesel recorded that the appellant’s physiotherapy and exercise physiology had been discontinued. She was not on any active therapies and was having difficulties with increasing pain and struggling to manage her ADLs.
A/Prof Boesel recorded the appellant’s symptoms as:
(a) Left ankle and foot pain, which was constant and aching. Activity produced shooting pain that radiated from the ankle upwards to the hip and downwards to the toes. There was associated hypersensitivity to touch, and dysaesthetic sensation to stimulation if the appellant walked on uneven surfaces. The appellant had to wear special shoes to cover her ankle, due to hypersensitivity to stimulation.
(b) Left hip pain that had been progressive over the last several years. This was in both the groin and the buttock and was a constant severe ache. It was unrelieved by sitting and only settled with lying flat. Twenty minutes of activity led to intolerable symptoms.
(c) Low back pain that caused waking at night and stiffness in the morning, of more recent origin.
With respect to CRPS, A/Prof Boesman recorded that the appellant described the following:
(a) pain disproportionate to the initiating injury, which had continued, with associated allodynic features.
(b) purple dusky discolouration of a fluctuating type, with associated abnormal temperature (both hotness and coldness) of the left calf, ankle, and foot.
(c) swelling around the fusion site and intermittent clamminess of the sole of the foot.
(d) increased hair growth, and cramping and contractions in the calf muscles and toes, with toe stiffness.
A/Prof Boesel opined that the appellant met the Budapest and SIRA criteria for CRPS type 1.
A/Prof Boesel also found a labral tear in the appellant’s left hip, as well as piriformis syndrome with associated sciatic nerve root inflammation changes (both shown on MRI in February 2020).
The appellant also had evidence of progressive lumbar facet joint deterioration. A/Prof Boesel “under[stood]” that Dr Randolph Gray had seen the appellant and potentially attributed this progression to chronic antalgic gait.
A/Prof Boesel opined that the appellant’s CRPS had been present, stable, and evident on every occasion he had seen her. He did not foresee any changes in the foreseeable future. “Based on the literature”, he opined that the appellant’s CRPS would be ongoing for the remainder of her life.
“It appear[ed] quite clear” to A/Prof Boesel that the CRPS in the appellant’s left foot and ankle arose after the first surgery. The appellant’s foot was immobilised in a moon boot for three to four months. She noted severe and persistent neurogenic pain at the fourth month, and became aware of abnormal CRPS features, including discolouration, temperature change, and swelling. Those features had continued in spite of various surgeries.
A/Prof Boesel noted that, in assessing CRPS, Dr Ho had not used the SIRA 2016 Guideline for the allocation of the impairment and CRPS but had allocated impairment based on multiple individual nerves. The Guideline states that for CRPS 1 the sensory impairment multiplier is to be applied globally to the whole limb. The percentage impairment arrived at by Dr Ho was not correct, although A/Prof Boesman agreed that the degree of impairment was 80%.
With respect to sensory criteria, A/Prof Boesel noted grade 2 sensory loss below the level of the lateral malleolus on the left. The appellant was markedly allodynic to brush and punctate sensation, particularly on the dorsum foot, but also on the soles and toes. The medial malleolar region demonstrated hypoaesthesia to punctate and point discrimination.
With respect to vasomotor disturbance, A/Prof Boesel noted that the appellant’s left foot displayed fluctuating dusky discolouration with mottling and reduced temperature.
With respect to sudomotor disturbance, A/Prof Boesel noted there was some swelling over the appellant’s lateral malleolus and clamminess on the sole of the foot.
With respect to motor and trophic changes, A/Prof Boesel recorded the appellant had tremor of her toes and some weakness in plantar and dorsiflexion (grade 4/5). Toe flexion was reduced by 30%.
A/Prof Boesel opined that the appellant had positive CRPS criteria in every item, on her history. Examination findings mirrored this. There was no alternative explanation for her condition. A/Prof Boesel was therefore satisfied that the appellant met the criteria for CRPS type 1.
A/Prof Boesel assessed no WPI with respect to either the appellant’s hip or knee. Foot and ankle changes were consistent with the subtalar fusion. The appellant’s scars did not attract any percentage impairment.
A/Prof Boesel opined that the appellant had 33% WPI. This comprised 80% sensory impairment, combined with 10% subtalar impairment, giving 82% lower limb impairment, which equated to 33% WPI.
Ground one
The appellant asserts that the Medical Assessor erred in assessing CRPS and has failed to provide adequate reasoning as to why CRPS was not assessed.
The appellant made additional submissions in support of both ground one and ground two of the appeal, after the respondent had made its submissions. She also raised a further ground of appeal.
The appellant’s additional submissions in support of ground one relied on assertions she had made in her statement dated 2 August 2024. That statement has not been admitted into evidence, for the reasons given above. The submissions therefore have not been considered.
The evaluation of permanent impairment arising from chronic pain is provided for by Chapter 17 of the Guidelines.
The assessment of CRPS is provided for by Table 17.1 of the Guidelines.
CRPS is assessed by applying the diagnostic criteria in Table 17.1.
In order to be assessed with CRPS, the appellant must have had continuing pain, which is disproportionate to any causal event.
The appellant must have reported at least one symptom in each of four categories: sensory; vasomotor; sudomotor/oedema; and motor/trophic.
The appellant must also have displayed at least one sign at the time of evaluation in each of the same four categories. It is noted that a sign is included only if it is observed and documented at the time of the impairment evaluation. (Emphasis added).
The final requirement is that there is no other diagnosis that better explains the appellant’s signs and symptoms.
It is a requirement of the diagnosis that the appellant must have displayed at least one sensory, vasomotor, sudomotor/oedema and motor/trophic sign at the time of the Medical Assessor’s evaluation. It is only if the Medical Assessor observed and documented a sign that it may be included.
The appellant submitted that the Medical Assessor did not specifically confirm or deny that the appellant had continuing pain that was disproportionate to any causal event. However, even if it is the case that the appellant had such pain, in the absence of at least one of the signs in each category, at the time of his examination, the Medical Assessor could not make a diagnosis of CRPS.
The appellant submitted that the Medical Assessor failed to record whether she reported at least one symptom in all four categories. However, whatever the appellant may have reported, the Medical Assessor did not observe and document at least one sign in each of the four categories, at the time of his assessment. In that case, he did not diagnose CRPS.
The Medical Assessor recorded there was no altered sensation to light touch. He noted that he did not detect sensory alteration of the appellant’s foot and had not assessed impairment for sensory disturbance. He addressed each of the other categories of Table 17.1 in turn. He stated unequivocally that he did not make findings consistent with Table 17.1 to confirm a diagnosis of CRPS.
The appellant submits the Medical Assessor’s opinion is contrary to the balance of the medical evidence.
The Medical Assessor referred to the clinical findings of both Dr Ho and A/Prof Boesel, and the evidence of Drs Standen and Martin. He recorded that the appellant had been diagnosed with CRPS.
A Medical Assessor is not bound by the assessments made by the parties’ medical experts. Those assessments provide evidence for consideration by the Medical Assessor but are not binding on him or her.
The role of the Medical Assessor in assessing impairment is to reach his or her own conclusion. In State of New South Wales (NSW Department of Education) v Kaur,[19] Campbell J said this about the role of an Approved Medical Specialist (now Medical Assessor):
“…In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.” (at [26]).
[19] [2016] NSWSC 346.
The Medical Assessor was required to provide reasons for his conclusions. The leading authority on the requirement to provide reasons, in this context, is Wingfoot. Campbell J in Kaur referred to Wingfoot:
“It is sufficient, as their Honours pointed out at [55], that ‘The statement of reasons…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’.”
Reasons must be read as a whole and fairly. It is also accepted that the requirement to give reasons can vary depending on the nature of the dispute. The reasons need not be lengthy, and a single sentence may suffice – Zahed.
As the respondent submitted, the appellant “failed” because, when she was examined by the Medical Assessor, he did not find any of the necessary symptoms to allow a diagnosis of CRPS. That was, as it submitted, a matter of fact. The symptoms (signs) were either present, or they were not. When the Medical Assessor assessed the appellant, the signs were not present, and he stated that, with reference to Table 17.1.
The Appeal Panel is of the view that the Medical Assessor has provided adequate reasons for his conclusion. This ground of appeal is not made out.
Ground two
The appellant asserts that the MAC contains a demonstrable error, as the Medical Assessor failed to assess WPI resulting from ankylosis of all toes on the left lower extremity. Alternatively, she relies on the use of incorrect criteria.
In her additional submissions, the appellant asserts that the Medical Assessor erred in his calculation of WPI as a result of injury to her ankle, which should have been assessed as 12% WPI.
The respondent does not accept that the Medical Assessor erred in his calculation of WPI, but submits that, if there is an error, it is mathematical only and can be corrected by either the Medical Assessor or the Appeal Panel.
The appellant submits that she underwent calcaneocuboid joint fusion on 23 July 2020. She submits that Dr Ho allowed 6% WPI for the fusion surgery.
The respondent submits that Dr Ho did not award the appellant 6% WPI based on the fusion surgery, but rather based on ankylosis of the toes in a functional position. He did not say to which toes he referred.
The respondent submits that the Medical Assessor did not make a finding similar to that of
Dr Ho. He found only reduced range of motion in the appellant’s first metatarsophalangeal joint and awarded impairment accordingly.The appellant submits that the Medical Assessor should have assessed various other impairments of the left lower extremity, including, inter alia, scarring/skin loss, and the left knee.
The respondent repeats its submission that the fact that other doctors made assessments that the Medical Assessor did not is not evidence of error.
As was the case with ground one, the role of the Medical Assessor was to reach his own conclusion, by applying his own medical experience and expertise. He was not bound by the assessment/s made by other medical experts. He was not in error in not assessing impairments assessed by other doctors.
As regards the submission that the Medical Assessor ought to have assessed scarring/skin loss, that was not a claim made by the appellant in the Application and was not referred to the Medical Assessor for assessment.
However, as was held in Skates v Hills Industries Ltd,[20] the brief provided to the Medical Assessor,
“…defined the proper scope of the referral.” Any “infelicity” of parts of the covering form by which a medical dispute is referred to a Medical Assessor “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.”[21]
[20] [2021] NSWCA 142 (Skates).
[21] Skates at [49].
The history of the claim is discussed under “Relevant factual background”.
The appellant relied on the assessment of A/Prof Boesel of 33% WPI, which made no assessment of WPI for scarring.
The Medical Assessor was not in error in not assessing WPI as a result of scarring. In any event, the Medical Assessor’s finding with respect to the appellant’s surgical scarring is noted above.
As regards the assertion that the Medical Assessor has erred in his calculation of 9% WPI as a result of injury to the appellant’s ankle, it is apparent that the Medical Assessor has made a mathematical error.
The correct calculation (using the Medical Assessor’s assessments) is as follows:
· Dorsiflexion - 0° = 7% lower extremity impairment;
· Plantar flexion - 10° = 15% lower extremity impairment;
· Eversion - 0° = 2% lower extremity impairment, and
· Inversion - 0° = 5% lower extremity impairment.
The above assessments total 29% lower extremity impairment. When 2% is combined (Figure 17-10) for restricted range of motion of the first metatarsal joint, the total is 30% lower extremity impairment, which equates to 12% WPI.
Ground two of the appeal with respect to this error is made out. The remainder of ground two is not made out.
The Appeal Panel is able to correct the Medical Assessor’s mathematical error and does so.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 July 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: | W3365/24 |
Applicant: | Megan Hallam |
Respondent: | Woolworths Group 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 Medical Assessor Rob Kuru 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. Left lower extremity | 15/12/2017 | P 15 3.17 | P 536 17.12 P 537 17.14 | 12% | 0 | 12% |
| 2. CRPS | 15/12/2017 | P 81 T 17.1 | 0% | 0 | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
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.
0
21
0