Hosie v Azzurri Services Pty Ltd
[2025] NSWPICMP 216
•28 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hosie v Azzurri Services Pty Ltd [2025] NSWPICMP 216 |
| APPELLANT: | Steven Hosie |
| RESPONDENT: | Azzurri Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Michael McGlynn |
| MEDICAL ASSESSOR: | Paul Curtin |
| DATE OF DECISION: | 28 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC) assessment of scarring; applicant suffered burns to his left leg and hand; consideration of Table 8-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); whether appellant fell into class 1 or higher; consideration of activities of daily living under Table 1-2 of AMA 5; Held – appellant appropriately assessed under class 1 of Table 8-2; best fit under the TEMSKI criteria; 4% whole person impairment; MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 August 2024 Steven Hosie, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by John Giles, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 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
Mr Hosie was employed by the respondent as a concrete pump operator. On 3 May 2023, he suffered burns to his left leg and hand when a fire occurred in a concrete vibrator. At the time of the incident, he was wearing a long sleeved shirt and shorts, which caught alight, but he was able to extinguish the flames. He was taken by ambulance to hospital. His burns were surgically treated.
Liability for the injury was accepted by the respondent. Mr Hosie made a claim for lump sum compensation, which was eventually referred to the Commission owing to the dispute concerning permanent impairment. The matter was referred for an assessment of whole person impairment by Dr John Giles, who issued a MAC on 25 July 2024. The appellant appeals against that assessment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel were satisfied that the MAC contained a demonstrable error, and in the circumstances where error had been identified, the nature of the injuries and the assessment process necessitated a further medical examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Michael McGlynn of the Appeal Panel conducted an examination of the worker on 4 March 2025 and reported to the Appeal Panel. A copy of that re-assessment report is included below.
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 summary, the appellant raises four grounds for appeal:
(a) the Medical Assessor erred in failing to consider the totality of the evidence in respect of activities of daily living;
(b) the Medical Assessor erred in respect of the totality of evidence in respect of treatment;
(c) the Medical Assessor has erred in assessing Mr Hosie within class 1 of Table 8-2 of AMA 5 instead of a higher class, and
(d) the Medical Assessor has failed to consider matters which may have resulted in him reaching a different conclusion.
In reply the respondent submits that the submissions cavil with the clinical judgement of the Medical Assessor, advocating for a different result rather than demonstrating an error. The appellant’s own evidence does not suggest a significant impact on his daily life, apart from the statement addressing that he is unable to stand for long periods. In respect of treatment, the respondent submits that the Medical Assessor has taken an appropriate history of the use of moisturising cream and compression garments. The respondent submits that the appellant has failed to show a demonstrable error, and the submissions are merely a case for disregarding the Medical Assessor’s opinion by substituting a finding of the appellant’s independent medical examiner.
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.
The appellant relies upon four grounds for appeal, but the ultimate contention is that the Medical Assessor should have assessed Mr Hosie in a higher class within Table 8-2 of AMA 5. The Medical Assessor assessed Class 1. Dr de Torres, who provided a report on behalf of the appellant, assessed class 3 impairment. Dr Pennington, who provides a report for the respondent, also assesses class 1 impairment within that table.
The three relevant classes (including class 2 as open between the two assessed classes) provide the following in AMA 5:
Class 1
0-9% impairment of the whole personClass 2
10-24% impairment of the whole personClass 3
25-34% impairment of the whole personSkin disorder signs and symptoms present or intermittently present
and
no or few limitations in performance of activities of daily living; exposure to certain chemical or physical agents may temporarily increase limitation
and
requires no or intermittent treatment
Skin disorder signs and symptoms present or intermittently present
and
limited performance of some activities of daily living
and
may require intermittent to constant treatment
Skin disorder signs and symptoms present or intermittently present
and
limited performance of many activities of daily living
and
may require intermittent to constant treatment
The appellant submits that firstly Mr Hosie cannot be described as having “no or few” limitations in performance of activities of daily living. The appellant refers to his statement, submitting that class 1 is not consistent with the available evidence. The appellant further submits that he requires intermittent to constant treatment, as opposed to no or intermittent treatment. Reference is made to his use of moisturising cream, which is submitted constitutes “treatment” within AMA 5, as well as compression garments, silicon sheets, and sunscreen.
The respondent refers to the criteria in Table 8-2 with reference to activities of daily living. The respondent submits that Table 1-2 of AMA 5 provides for activities of daily living, and the applicant’s own evidence does not suggest a significant impact on his activities, other than an inability to stand for long periods. The respondent submits, in respect of treatment, there is no evidence that the treatment referred to in the MAC is required “constantly” and they are preventive in nature.
The Appeal Panel, on preliminary review, were satisfied the MAC contained a demonstrable error. There are two aspects to this satisfaction. The first is the conclusion that the “scars do not appear to have impacted significantly on the normal activities of his daily life” on page 6 of the MAC. This does not reference in detail the activities of daily living, a required consideration as part of the criteria in Table 8-2, as set out in Table 1-2 (repeated in the glossary on page 599 of AMA 5). Secondly, the Medical Assessor has stated that the scars “would not benefit from further treatment”. This is not the appropriate consideration within Table 8-2, which is whether the scars require “no or intermittent treatment”, or “intermittent to constant treatment”.
Accordingly, being satisfied that the MAC contained a demonstrable error, the Appeal Panel, through Medical Assessor McGlynn, conducted a re-assessment of the respondent worker. The report from that re-assessment appears below:
“APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W22476/24 |
Appellant: | Steven Hosie |
Respondent: | Azzurri Services Pty Ltd |
Date of Determination: | 04 March 2025 |
Examination Conducted By: | Michael McGlynn |
Date of Examination: | 04 March 2025 |
1. The workers medical history, where it differs from previous records
The history of the occurrence of injury, and treatment thereafter, was identical to the history recorded in the Medical Assessment Certificate of Dr John Giles, 25 July 2024, and consistent with the medical records contained in the material
2. Additional history since the original Medical Assessment Certificate was performed
There has been no further surgical or medical treatment for physical injuries since the assessment by Dr Giles in July 2024. Mr Hosie stated his physical condition is unchanged. The photographs in Dr Giles MAC were similar to the appearance at today’s examination.
3. Findings on clinical examination
Stephen Hosie was examined on 3 March 2025.
He was 174 cm tall and weighed 86 kg.
He had blue eyes, black hair and fair skin colour with light suntan on exposed areas.
The examination focused on scarring and disfigurement.
On the dorsum of the left hand there were split skin grafts on left index, middle, ring, and little finger middle and distal phalanges. These were hyperpigmented with easily identifiable colour contrast, minor trophic features, no visible suture marks, and some adherence to deeper tissue.
There were full active ranges of movement of all fingers of the left hand similar to the ranges on the right side.
On the left thigh covering most of the medial, anterior and lateral sides, there was a healed split skin draft donor site 200 mm x 300 mm, hypopigmented with easily identifiable colour contrast, with no contour defect, no visible suture marks, no trophic features, and no adherence.
On the anterior aspect of left knee across the patella, there was a transverse scar from a laceration sustained in the incident, 35 mm x 1.5 mm, hypopigmented with noticeable colour contrast, indented, with no visible suture marks, no trophic features, and no adherence.
On the posterior aspect of left knee popliteal fossa and adjacent calf, there was a split skin graft scar 100 mm x 200 mm, with mixed hypopigmentation and hyperpigmentation causing easily identifiable colour contrast, with irregularity and indentation causing visible contour defect, with no visible suture marks and no adherence. At the proximal edge of the skin graft behind the knee, there a transverse zone of hypertrophic scar 100 mm x 10 mm, raised and firm on palpation.
On the lower third of the left lower leg there was a circumferential split skin graft scar 80 mm in width joining the split skin graft scar on the calf, with similar features to the other skin graft.
The split skin graft scarring had reduced sensation with no protective sensation.
4. Results of any additional investigations since the original Medical Assessment Certificate
There have been no additional investigations since the original medical assessment certificate.
5. ADL:
Stephen Hosie is conscious of visible scarring and disfigurement of his left hand and left lower limb. This sometimes causes embarrassment.
The skin grafted areas have little or no sensibility. He gets pins and needles discomfort in the scarring of left lower leg after standing for five minutes.
Sensory symptoms in left lower leg causes him to minimise standing. He stated he has changed jobs from concrete pumper to rigger because it gave him more opportunity to sit and rest when sensory symptoms were exacerbated
ADL affected by scarring are Social & Recreational Activity, Sensory Function, and Physical Activity (three = few).
6. Treatment:
Stephen Hosie stated that current treatment for his scarring is application of moisturiser cream each weekend. There is no other current treatment for his scarring. This is no to intermittent treatment.
7. WPI Opinion and Reasons:
NSW Workers Compensation Guidelines 4th Edition paragraph 14.2, page 73 states, disfigurement, scars and skin grafts may be assessed as causing significant permanent impairment when the skin condition causes limitation in the performance of activities of daily living (ADL).
AMA5 – Glossary Table Page 599 lists nine ADL with examples:
Self-care, personal hygiene (urinating, defecating, brushing hair, bathing, dressing, eating)
Communication (writing, typing, seeing, hearing, speaking)
Physical activity (standing, sitting, reclining, walking, climbing stairs)
Sensory function (hearing, seeing, tactile feeling, tasting, smelling)
Hand functions (grasping, lifting, tactile discrimination)
Travel (riding, driving, flying)
Sexual function (orgasm, ejaculation, lubrication, erection)
Sleep (restful, nocturnal sleep pattern)
Social and Recreational Activities (participating in individual or group activities, sports)
Steven Hosie has limitation of few ADL, namely Social & Recreational activities, Sensory Function due to loss of protective sensation and painful dysaesthesia in the skin graft scars, and Physical Activity due to standing for more than 5 minutes causing exacerbation of dysaesthesia.
Because the scarring causes limitation of few ADL and requires no to intermittent treatment, it is Class 1 Skin Disorder with impairment range of 0-9% WPI.NSW Workers Compensation Guidelines 4th Edition paragraphs 14.7 to 14.9 direct use of the Table for Evaluation of Minor Skin Impairment (TEMSKI) to assess impairment for Class 1 Skin Disorder.
The Guidelines paragraph 14.5 states, The skin is regarded as a single organ and all non-facial scarring is measured together as one overall impairment, rather than assessing individual scars separately and combining the results.
TEMSKI Criteria:
· Steven Hosie is conscious of the scarring;
· there is easily identifiable colour contrast with the surrounding skin;
· he is able to easily locate the scarring;
· there are palpable trophic changes;
· suture marks are not visible;
· the anatomic location of leg is clearly visible with usual summer clothing;
· there is visible contour defect;
· there is minor limitation of few ADL due to scarring, and exposure to physical agents such as heat and minor trauma may temporarily increase the limitation;
· no or intermittent treatment is required;
· there is scar adherence.
Eight of ten scar criteria fit the 3–4% WPI TEMSKI zone; four fit the 2% zone and five fit the 5–9% zone. Because the area of scarring is significant and there is significant effect on activities of daily living, particularly Sensory Function and Physical Activity, in my opinion the best fit is 4% WPI due to scarring.
There is no pre-existing scarring or skin disorder contributing to his current skin disorder. There is no deductible proportion. Maximum medical improvement has been reached as there has been no recent change and there is unlikely to be substantial change and by more than 3% in the next year with or without further medical treatment.”
The Appeal Panel adopts and agrees with the re-examination report of Medical Assessor McGlynn. The same class assessment has been provided (class 1) with a different assessment for “best fit” within that class.
Accordingly, the MAC will be revoked and a new MAC issued reflecting the assessment of impairment. 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: | W22476/24 |
Applicant: | Steven Hosie |
Respondent: | Azzurri Services Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Giles 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) |
| Skin (scarring) | 3/5/23 | Ch 14, pages 73-76, paragraph14.1 to 14.11 & TEMSKI | Ch 8, Page 178, Table 8-2 Table 1-2 Glossary | 4% | Nil | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 4% | |||||
0