Harris v Trojan Workforce No 3 Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Harris v Trojan Workforce No 3 Pty Ltd [2024] NSWPICMP 284
APPELLANT:	Leslie Harris
RESPONDENT:	Trojan Workforce No 3 Pty Limited
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Robin Fitzsimons
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	10 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment regarding cervical spine and nervous system; respondent conceded error regarding calculation of impairment for cervical spine; whether Medical Assessor (MA) had failed to consider medical material; whether he had given adequate reasons for a nil impairment for the nervous system; Held – WPI increased from 15% to 28% for a DRE IV cervical spine; Chapter 4 of the Guides considered and applied; nil impairment confirmed for nervous system; MA had addressed the relevant medical material and explained why he differed; presumption of regularity considered; whether impugned evidence rebutted presumption; Bojko v ICM Property Service Pty Ltd considered and applied; MA required to apply medical experience and expertise; Wingfoot Australia Pty Ltd v Kocak considered and applied.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 October 2023 Leslie Harris, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 October 2023.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 1 August 2023 this matter was referred to the Medical Assessor for a WPI assessment of impairment caused to the cervical spine, and to the nervous system caused by injury on
5 August 2005.
On 22 August 2023, following email correspondence from the parties with the President’s delegate, an amended referral was made which was to alter the agreed date of injury to
3 August 2005, and to add the words “(left ilioinguinal and genitofemoral nerves) after the words “Nervous System”. The amended referral was issued without any indication that it was amended, and without altering the date of the amended referral from 1 August 2023 to
22 August 2023. It does not appear that the date of injury was in fact amended from
5 August 2005 to 3 August 2005.
In the meantime, the Medical Assessor had seen Mr Harris on 16 August 2023, and a further consultation occurred on 12 October 2023 for an assessment in accordance with the amended referral.
Mr Harris was an electrician, and he was injured on 5 August 2005 when he had to pull vigorously on electrical wires which were being removed when electrical fittings and cables were being demolished from three floors of a building.
After 20 minutes of effort, Mr Harris experienced pain in the left side of his neck, the upper posterior left side of the thorax and injury to the left shoulder blade. He also experienced a dull ache in the left groin, in particular about 15 minutes after he came down from the ladder.
The Medical Assessor outlined the history. In summary:
·        the occurrence of earlier left and right inguinal injury in 1984;
·        surgery in 1989 for an open repair of a left inguinal hernia using mesh;
·        surgery in 1998 for a repair of a right inguinal injury;
·        the subject injury of 5 August 2005;
·        surgery on 20 December 2005 for bilateral inguinal hernias;
·        onset of left leg collapse and foot drop 2007 to 2013;
·        surgery on 6 December 2013 to left groin with laparoscopy, whereby the surgeon removed a tack that had been lying on the obturator nerve; left leg symptoms persist;
·        surgery on 25 January 2019 to C5/C6 in the form of a fusion, and
·        permanent stiff neck and left leg symptoms.
The Medical Assessor assessed 15% WPI.

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 did not seek to be re-examined by a member of the Medical Appeal Panel. We confirm that no such re-examination was indicated as the issues were capable of being determined on the evidence that was before the Medical Assessor, and indeed error in one respect was conceded by the respondent.

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 which have been considered 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 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.
There were two issues raised in the appeal. The respondent conceded the miscalculation by the Medical Assessor as to the impairment caused to the cervical spine. The appellant also challenged the nil impairment finding as to injury to the nervous system.

The MAC

In the history relating to an injury the Medical Assessor said:[1]
“I saw Mr Harris previously on 16 August 2023. At that time, I was not asked specifically about the ilioinguinal and genitofemoral nerves. He returned on 12 October 2023 for those nerves to be specifically examined. Because they are in the genital area, they are not part of the usual neurological examination of the nervous system.”
[1] Appeal papers page 29.
The Medical Assessor described Mr Harris’s complaints under Present Symptoms:[2]
“Mr Harris said the main existing symptoms are limping and foot drop
and also ‘collapsing’ of the left leg. In June 2023 he was standing and locking his car
when his leg suddenly gave way and he fell to the ground. This was not associated with pain. He was able to get to his feet with Mrs Harris’ help and he was able to walk inside.
A similar incident had occurred during 2022. The limp and foot drop were associated with the degree of intensity of pain in the left groin and he reports that the intensity of the groin pain has markedly improved and in parallel the complaints of the limp and foot drop have also improved.
The remaining pain in the region of the left groin is reported to be unassociated with
symptoms of a superficial nature, the pain feels, according to Mr Harris’ description, as
though ‘it’s deeply inside the pelvic bone’. I here quote Mr Harris’ words. There are no right-sided symptoms in the groin or in the right lower extremity.”
[2] Appeal papers page 30.
Mr Harris’s activities of daily living were recorded, relevantly:[3]
“Mr Harris is married with one child. …
He is responsible for all of his personal needs and drives a vehicle.
Mrs Harris is his official carer since 2007 and she performs all the household activities and lawn mowing.”
[3] Appeal papers page 30.
Mr Harris was examined by the Medical Assessor. The Medical Assessor found:[4]
“On examination, Mr Harris walked with a marked limp favouring the left lower extremity. There was no indication of left sided foot drop. The limp was noted to vary considerably at different times during the consultation and physical examination.
He was able to assume the seated position and rise from a low chair without assistance. He was able to assume the seated position on the examination couch with hips flexed and knees extended without discomfort. There was no limitation of straight leg raising on either side.
There was no abnormality of contour, posture, tone, power production, coordination or sensation in the lower extremities. The deep tendon reflexes were symmetrical and normally brisk and the plantar responses were flexor. Superficial and deep modalities of sensation were tested and were intact bilaterally.
…..
A scar of 12 cm was evident in the region of the left groin which was non-tender. Sensory testing in the region of the scar including examination of the scrotum and penis, the inner aspect of both thighs and the saddle area revealed no abnormality of superficial or deep sensation.
Near to the end of the physical examination Mr Harris drew my attention particularly to the site of pain which he described to be in the left groin the size of a 20-cent piece well above the lateral aspect of the left inguinal ligament almost anterior to the iliac crest. He pressed there himself, winced and jerked his upper body into extension, and expressed appreciation that I had not elected to press there. He said that others had pressed there and caused him severe pain “for two or three days…I am in bed for two or three days on Endone” he said. There were no abnormal neurological signs at that anatomical site.”
[4] Appeal papers page 31.
In summarising the Medical Assessor said:[5]
“Mr Harris experienced neck pain and left groin pain at the time of the injury on 5/8/2005.
He subsequently had cervical surgery and surgery for a left sided hernia. He later
reported pain in the region of the hernia scar thought to be due to ilioinguinal and or
femoral neuropathy. Examination of the deep and superficial sensory modalities within the territory of those nerves which included the penis and scrotum revealed no abnormality today.
The site of the pain he now described to me as “groin” was not inguinal nor in the territory of the ilioinguinal or genitofemoral nerves. There was no tenderness, pain nor any other abnormality at the site of the left sided hernia repair scar.
Cervical pain is a continuing problem despite the surgery.”
[5] Appeal papers page 32.
The Medical Assessor considered the medical opinions before him at [10c]. With regard to the nervous system, he noted that Dr James Yu referred to the absence of any neurological signs in the lower extremities.
The Medical Assessor noted the report of Dr Berry (wrongly spelt as ‘Barry’) of 1 June 2023. Dr Berry had noted dysesthesia extending down over the inguinal ligament and into the left scrotum. The Medical Assessor said:
“Those signs were not present at the time of my examination today and the site of the exquisite tenderness bore no anatomical relationship to the ilioinguinal and genitofemoral nerve. The dramatic symptoms that Mr Harris was able to demonstrate by himself pressing the area referred to above had no anatomical relevance to the areas of innovation of the ilioinguinal and genitofemoral nerves.”
The Medical Assessor referred to the multiple reports prepared by Dr Teychenné, the last being 6 November 2019. The Medical Assessor dismissed Dr Teychenné’s diagnosis of an incomplete cervical cord lesion at C5/6 and Dr Teychenné’s opinion that pain in the region of the left iliac fossa was referred pain from the spinal cord.
The Medical Assessor explained in some detail why a diagnosis of partial cervical cord lesion was inappropriate. He noted that none of the reports from other specialists that he had seen established any diagnostic signs of partial spinal cord lesion.

SUBMISSIONS
The appellant

Mr Harris submitted that the Medical Assessor had applied the wrong criteria in assessing a DRE III cervical spine category as the appropriate impairment.
The respondent agreed with that submission and accordingly the MAC will be revoked to correct that error.
Mr Harris also appealed against the nil % findings made by the Medical Assessor regarding the nervous system.
The appellant referred to the opinions of Dr Teychenné who diagnosed an incomplete cervical lesion at C5/6. It was submitted that “the Medical Assessor ‘moved back and forth’ from consideration of a diagnosis of cervical cord lesion, and left sided symptoms said by multiple treating doctors to have arisen from multiple hernia repairs and mesh implant and removal”.
It was submitted that the Medical Assessor has fallen into error by “intermingling” his comments. In parenthesis it was suggested by Mr Harris that the Medical Assessor had intermingled his comments “possibly by revising a Certificate which did not address the post hernia problems at all”. We interpose to observe that there is no basis for this speculative submission, which ought not to have been made.
It was submitted that the Medical Assessor failed to provide any explanation of “how he incorporated the applicant’s complaints of continuing pain in the region of the hernia scar to any impairment assessment under Table 5.1 of the Workers Compensation Guidelines”.
Mr Harris submitted that “it was impossible” to determine what parts of the history were obtained in August 2023 when the Medical Assessor first examined Mr Harris, and in October 2023 when he was further asked to examine the left ilioinguinal and genitofemoral nerves.
It was submitted that the Medical Assessor had not provided any reasoning about the difference between his opinion and the other treating doctors “over more than a decade” that suggested that Mr Harris has continued in “debilitating left groin pain and intermittent problems with a collapsing of the left leg”.
We were referred to the opinions of Dr Berry, and Dr Dias.
The appellant conceded that a Medical Assessor was not obliged to agree with other specialists but, citing Vegan (which we have referred to at the outset of these reasons), submitted it was incumbent on the Medical Assessor to explain his reasoning.
It was submitted that the Medical Assessor had made no reference to neurologist Dr Stephen Duma’s reports. It was submitted that the MAC did not disclose that Dr Duma’s reports were considered, neither were they “listed or discussed”.
Again, it was conceded that a Medical Assessor does not have to list all of the attachments listed with the referral, but Mr Harris submitted that the content of Dr Duma’s opinion dated
9 June 2022, which Mr Harris reproduced, required some consideration in view of the issues.
It was also submitted that the Medical Assessor omitted to list an ultrasound report of
Dr Reid of 30 October 2017 and an MRI report dated 20 November 2017. These investigations had been listed and referenced by Dr Dias and Dr Berry, Mr Harris said.
We were referred to chapter 1.7 of the Guides:
“The report should contain factual information based upon all available medical Information and results of investigations, the assessor’s own history-taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the assessor's report.”
Chapter 1.7, it was submitted, required the Medical Assessor to refer to those investigations, the opinion of Mr Harris’ treating neurologist, and the opinions of the medico-legal assessors, which, it was submitted, were “at odds with the conclusion reached by the Medical Assessor”.

Respondent

The respondent firstly submitted that the correct date of injury was in fact 3 August 2005 which date had been agreed, and we will accordingly amend the fresh certificate to that effect.
The respondent conceded Mr Harris’s point as to the application by the Medical Assessor of incorrect criteria. However, it submitted that the Medical Assessor had made a demonstrable error in failing to apply the provisions of s 323 of the 1998 Act. As a result, directions were issued by the President on 8 December 2023 in the following terms:[6]
“The President directs:
1.      By 5pm on 15 December 2023, Trojan Workforce No 3 Pty Limited is to lodge and serve a separate Application to Appeal Against a Decision of Medical Assessor. The appeal application is to include submissions addressing the issue of why time should be extended to allow the appeal.
2.      By 5pm on 8 January 2024, Leslie Harris is to lodge and serve submissions in reply.
3.      If Trojan Workforce No 3 Pty Limited does not lodge a separate appeal application within the specified timeframe, matter M1-W4823/23 will be progressed without consideration of the additional grounds of appeal raised in the Notice of Opposition.
4.      If a separate appeal application is lodged within the specified timeframe, the Commission will subsequently deal with both appeals, including whether leave ought to be granted to bring the latter appeal out of time, and if necessary, the cross appeal.”
[6] Appeal papers page 3.
No such appeal was lodged and consequently we decline to consider these “submissions”. To do so without the appellant having had an opportunity to answer them would be to contravene the principles of nature, justice and procedural fairness.
With regard to the appellant’s submissions concerning the nervous system, the respondent submitted that pursuant to Chapter 1.6a of the Guides the Medical Assessor was obliged to assess Mr Harris as he presented on the date of the assessment. Submissions as to
Mr Harris’s pathology state on other occasions accordingly were of limited relevance, it was submitted.
We were referred to extracts from the MAC regarding that presentation and the opinion given by Dr Berry.
We were referred to table 5.1 of the Guides which confirmed the assessment by the Medical Assessor. Notwithstanding other opinions in earlier times, the respondent submitted that it was appropriate for the Medical Assessor to assess 0% WPI in view of the findings on the day of examination.

Discussion

The cervical spine

As indicated, the respondent agrees that a demonstrable error was made in the calculation of the appropriate impairment of the cervical spine. The Medical Assessor mistakenly reported Dr Kleinman’s opinion as supporting a DRE category III assessment, when Dr Kleinman had in fact assessed a DRE category IV category, as Mr Harris had undergone a loss of motion segment due to the surgical arthrodesis on 19 January 2019. We confirm that the criteria for a cervical category IV includes “loss of motion of a motion segment due to… a successful or unsuccessful attempt at surgical arthrodesis.”[7] DRE category IV provides for a WPI range between 25-28%. Chapter 4.33 of the Guides provides that the 3% variation is governed by the assessment of the effect of the injury on the claimant’s ability to perform the activities of daily living, as defined in Chapters 4.33 – 4.35.[8]
[7] AMA5 page 392.
[8] Guides pages 27/28.

The Medical Assessor said that he “took into account the entire clinical picture and my findings on examination and did not consider an addition [pursuant to Chapter 4.34 of the Guides] was appropriate.” The respondent conceded that at least an allowance of 1% should be made, relying on the report of Dr John Bosanquet, the respondent’s medico-legal expert consultant orthopaedic surgeon.[9] Mr Harris submitted that an allowance should have been made, as he was dependent on his wife as a carer for many activities of daily living. We note the history taken by the Medical Assessor that Mr Harris was “responsible for all his personal needs and drives a vehicle”.[10] In the circumstances, a 2% addition is appropriate.
[9] Appeal papers page 266.
[10] Appeal papers page 30.
Further, Table 4.2 of the Guides allows a further 1% where the surgery involves a second level. The surgery carried out by Dr Mobbs was to the C4/5 and C5/6 levels and a further modification of 1% WPI is accordingly appropriate. Although Dr Kleinman thought a further 3% was available pursuant to Table 4.2 because there were residual symptoms and radiculopathy following the surgery, but it was not argued that the surgery produced such symptoms, and indeed the Medical Assessor found there was no evidence of radiculopathy.

The nervous system

Mr Harris made some submissions regarding the fact that the Medical Assessor examined him on two occasions, namely 16 August 2023 and 12 October 2023. Mr Harris wrongly assumed that the amended referral seeking an assessment of the left ilioinguinal and genitofemoral nerves were sent to the Medical Assessor prior to the consultation on
16 August 2023. This misassumption probably arose because the second referral unfortunately retained the same request date (1 August 2023) when it was in fact not amended until 22 August 2023, as our enquiries revealed.
As to the assessment of Mr Harris’ nervous system, Mr Harris relied on findings from
[11] Appeal papers page 98.
Dr Uthum Dias, occupational physician, his medico-legal expert, dated 15 November 2022. Dr Dias found that the right inguinal hernia injuries had resolved but that there was “chronic neuropathic left groin pain associated with sensory dysesthesia/loss in the distribution of left ilioinguinal and genitofemoral nerves, with associated ongoing sexual/bladder dysfunction”.[11]
Dr Dias noted the surgery to the bilateral hernias of 20 December 2005, and the persistent severe neuropathic left groin Mr Harris suffered continually over the course of the past 17 years since undergoing that surgery. He noted the discovery of a tack lying on the obturator nerve during the left inguinal laparoscopy and removal of mesh surgery in December 2013, after which Dr Dias noted a “moderate improvement”, but still continued to suffer neuropathic pain. He assessed 5% WPI for damage to the left ilioguinal nerve, using Table 5.1 of the Guides, and a further 5% WPI for damage to the left genitofemoral nerve.[12]
[12] Guides page 33.
Mr Harris also relied on the expert report from the respondent’s specialist, Dr Berry. Dr Berry assessed Mr Harris on 1 June 2023, he found a 5% WPI to the left ilioinguinal nerve, and 2% to the left genitofemoral nerve. He took the history that Mr Harris had developed mesh inguinodynia in the surgery of 20 December 2005, and that the surgery of 2013 had “relieved some of his leg symptoms”.[13]
[13] Appeal papers page 272.
Mr Harris also said that the Medical Assessor had erred in failing to refer to the report of
Dr Stephen Duma, neurologist, conceding as he did so that there was no obligation on a Medical Assessor to consider every report that was before him. This concession was well made as there is a presumption of regularity that an administrative decision-maker such as a Medical Assessor. In Bojko v ICM Property Service Pty Ltd[14] Handley AJA (Allsop P and Giles JA agreeing) said at [36]:
“The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action….”
[14] [2009] NSWCA 175.
Presumptions are, of course, rebuttable, and we have accordingly considered Dr Duma’s report.
Dr Duma appears to have seen Mr Harris on one occasion, reporting to Mr Harris’ GP on
9 June 2022.[15] Dr Duma took a history that Mr Harris underwent a bilateral hernia repair in 2005, but had “a subsequent left obturator nerve injury, which is permanent”. He underwent mesh removal surgery in 2013, Dr Duma reported, and “he continued to have mild pain anteriorly in the left thigh though not as bad [as] it was previously”. Dr Duma reported the onset of “a new pain” since 2013. Dr Duma said:
“… This pain commences in the left groin in and radiates to the left testicle. This pain occurs with every step. He has had extensive investigations which have not identified a cause for his pain….”
[15] Appeal papers page 245.
Dr Duma summarised that there had been “an extensive and complex history of the left lower limb pain, with the urinary and erectile dysfunction”. Dr Duma thought that there was “permanent nerve damage from his previous injuries” and that after extensive investigations no structural cause had been identified.
In the context of the reasons given by the Medical Assessor for declining to find any WPI for the nervous system, Dr Duma’s report does no more than assess that in 2019 Mr Harris had suffered permanent nerve damage. Dr Duma ascribed the nerve damage to the obturator nerve, although it is possible, given the generality of his sensory findings, that he was also referring to the ilioinguinal and/or genitofemoral nerves. In any event his opinion was generally repeated by both Dr Dias and Dr Berry. We do not find that the Medical Assessor fell into error by not referring to the report of Dr Duma.
Similarly, Mr Harris also submitted that the Medical Assessor erred in failing to refer to an ultrasound report of 30 October 2017 and an MRI report dated 20 November 2017. The ultrasound report noted that the eventual left mesh removal had left “a component of left groin pain nevertheless persisting with radiation to scrotum”.[16] The MRI scan dated
20 November 2017 contained the following findings, relevantly:[17]
“ …
Left inguinal canal shows (i) thickening of the posterior wall (ii) a presumed small spermatic cord lipoma, and (iii) a uniformly hyperintense cremaster muscle that suggests denervation related to genital branch of genitofemoral nerve. Of potential relevance to genitofemoral nerve entrapment, there is evidence of localised scarring at the margin of left deep inguinal ring….
No definite hyperintensity is identified in the path of left ilioinguinal nerve, but this does not necessarily negate the previous ultrasound finding….”
[16] Appeal papers page 160.
[17] Appeal papers page 162.
The previous ultrasound on 30 October 2017 found, relevantly:[18]
“left inguinal canal showed an echogenic posterior wall with associated posterior acoustic attenuation that suggested mesh in situ. There was no tenderness to probing directly over the left inguinal canal and no dynamic recurrent left direct or indirect incline all hernia detected…
….
The patient indicated a specific focal trigger point for his usual pain located towards the mid lateral aspect of LLQ (significant pain produced by relatively light pressure), were no definite or convincing underlying sonographic abnormality could be identified. However, nearby the left ilioinguinal nerve just proximal to deep green showed hypoechoic thickening.”
[18] Appeal papers page 161.
The impression noted was “presumed left ilioinguinal neuralgia for which further correlation with MRI is now suggested”.
Again, in view of the reasons given by the Medical Assessor for his assessment of the nervous system, we do not regard his failure to allude to these investigations as constituting error.
We note the concession by Mr Harris that a Medical Assessor was not obliged to agree with other specialists. We also have difficulty with his submission that the Medical Assessor did not explain his reasoning.
In the first place, at [10c] of the MAC he considered and commented on the reports of:
·        Professor Mobbs;
·        Professor Colebatch;
·        Dr John Bosanquet;
·        Dr Kleinman;
·        Dr James Yu;
·        Dr Barry [sic Berry], and
·        Dr Teychenné.
As to reports regarding the nervous system, we note in passing that the Medical Assessor did not consider the report of Dr Dias. However, as Dr Dias and Dr Berry gave similar diagnoses, as indicated above, the comments by the Medical Assessor are equally applicable to the opinion of Dr Dias. The Medical Assessor acknowledged that Dr Berry had noted dysesthesia extending down over the inguinal ligament and into the left scrotum. As indicated above, the Medical Assessor said:
“Those signs were not present at the time of my examination today and the site of the exquisite tenderness bore no anatomical relationship to the ilioinguinal and genitofemoral nerve. The dramatic symptoms that Mr Harris was able to demonstrate by himself pressing the area referred to above had no anatomical relevance to the areas of innovation of the ilioinguinal and genitofemoral nerves.”
In considering the reports of Dr Teychenné, the Medical Assessor said:[19]
“….It is noted that [Dr Teychenné] makes no reference to evidence of an earlier inguinal or genitofemoral nerve lesion, or the hernia operation scar.”
[19] Appeal papers page 34.
The Medical Assessor also referred to the report of Professor Mobbs, who had said in his report of 15 April 2019 that “the lower limb examination did not reveal any neurological deficit”. The Medical Assessor found that Dr Mobbs therefore “identified no evidence of left sided ilioinguinal or genitofemoral nerve abnormalities”.[20]
[20] Ibid.
It is thus apparent that the Medical Assessor found that no impairment had been caused by injury to the nervous system and particularly the ilioinguinal and genitofemoral nerves, as a result of his examination findings and the application of his clinical experience and expertise.
The Medical Assessor found, as indicated above, that Mr Harris’s examination revealed a limp of variable severity at different times during both the consultation and the examination. The Medical Assessor found no indication of left sided foot drop, nor did he find any abnormality of contour, posture, tone, power production, coordination or sensation in the lower extremities.
The Medical Assessor also noted the complaints from Mr Harris about the site of pain. Whilst Mr Harris described it to be in the left groin area, he indicated an area well above the lateral aspect of the left inguinal ligament almost anterior to the iliac crest. The Medical Assessor noted that Mr Harris pressed on the area himself, and “winced and jerked his upper body into extension… He said that others had pressed there and caused him severe pain “for two or three days…I am in bed for two or three days on Endone”.
The Medical Assessor explained those findings in his summary, which we have reproduced above. The pain which Mr Harris had described on examination was, the Medical Assessor said, in the region of the hernia scar. The Medical Assessor observed that the pain was thought to be due to ilioinguinal and/or femoral neuropathy but that examination of the deep and superficial sensory modalities within the territory of those nerves, which included the penis and scrotum, revealed no abnormality on examination. Further, the Medical Assessor stated that the site of the pain was “not inguinal, nor in the territory of the ilioinguinal or genitofemoral nerves”.
Chapter 1.6a of the Guides provides relevantly:[21]
“1.6 The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
•• ……..
•• whether the claimant’s compensable injury/condition has resulted in an impairment
•• whether the resultant impairment is permanent
•• the degree of permanent impairment that results from the injury
•• …”
[21] Guides page 3.
It can be seen that the Medical Assessor was aware that there was a significant body of evidence that suggested that Mr Harris’s symptoms involved damage to the ilioinguinal and genitofemoral nerves. The Medical Assessor has declined to accept that view on the basis of Mr Harris’s presentation. In Wingfoot Australia Pty Ltd v Kocak[22] the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) stated at [47]:
“The function of a Medical Panel[23] is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[22] [2013] HCA 43.
[23] This dicta also applies to the functions of a Medical Assessor: Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13] per Adams J.
An unusual feature of this matter is that Mr Harris suffered severe symptoms in his left leg, including its giving way and causing foot drop between the bilateral hernia surgery of
20 December 2005 and the surgery of 6 December 2013, which discovered that he had been left with a tack on his obturator nerve over an eight year period. The latter surgery appears to have relieved some of Mr Harris’ symptoms, but he has continued to be symptomatic since that time, as he demonstrated to the Medical Assessor on examination. The Medical Assessor did not think that Mr Harris had a left sided foot drop on examination and observation of Mr Harris.
The Medical Assessor was seized of the opinion of Dr Berry that the ilioinguinal and genitofemoral nerves were causing impairment to Mr Harris. Dr Dias was of the same view, as was Dr Duma. The ultrasound and MRI scans were dated in October and November 2017, and were not conclusive, the ultrasound finding being of “presumed” left ilioinguinal neuralgia for which a confirmatory MRI was suggested, but the MRI found that the imaging showed no definite hyperintensity in the path of the left ilioinguinal nerve, which it was said “did not necessarily negate the previous ultrasound finding.”
We find the nil assessment of impairment caused by injury to the ilioinguinal and genitofemoral nerves was open to the Medical Assessor. He was required to assess
Mr Harris as he presented on the day of his assessment, and this he did.
As we noted at the outset of these reasons, Vegan is authority for the proposition that, whilst the extent of the reasons given need not be extensive or detailed, bearing in mind that a Medical Assessor is a medical professional reaching a professional judgement, nonetheless it is necessary to explain a conclusion that is reached where more than one conclusion is open on the evidence.
We are satisfied that the Medical Assessor has explained his reasoning. He was aware that more than one conclusion was open on the evidence, and he engaged with and explained his reasoning for his assessment.
For these reasons (paragraphs 51-53, in relation to the cervical spine), the Appeal Panel has determined that the MAC issued on 30 October 2023 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:	W4823/23
Applicant:	Leslie Harris
Respondent:	Trojan Workforce No 3 Pty 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 Ross Mellick 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 WorkCover Guides	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	3.8.05	Chapter 4 paragraphs 4.34, 4.35, 4.37, Table 4.2	Chapter 15 Table 15 – five	28%	Nil	28%
Nervous System (ilioinguinal and genitofemoral nerves)	3.8.05	Chapter 1 paragraph 1.6	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					28%

[2024] NSWPICMP 284

10 May 2024