JTE Enterprises Pty Ltd (t/as Mount Gibraltar Preschool) v Brown
[2025] NSWPICMP 175
•18 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | JTE Enterprises Pty Ltd (t/as Mount Gibraltar Preschool) v Brown [2025] NSWPICMP 175 |
| APPELLANT: | JTE Enterprises Pty Ltd (t/as Mount Gibraltar Preschool) |
| RESPONDENT: | Jenna Marie Brown |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Doron Sher |
| MEDICAL ASSESSOR: | Tim Anderson |
| DATE OF DECISION: | 18 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Respondent suffered injury to her right ankle; her claim for compensation for permanent impairment was based on her meeting the criteria for a diagnosis of complex regional pain syndrome (CRPS); Medical Assessor (MA) found the appellant did not meet the criteria at the time of assessment and assessed her impairment by reference to restricted range of movement in knee and ankle joints; whether MA erred by including in his assessment the impairment the respondent had due to restricted range of movement of her knee joint; Held – Appeal Panel held the MA did not make an error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 November 2024 JTE Entreprises Pty Ltd, the appellant, who trades as Mount Gibraltar Preschool, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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 employed Jenna Marie Brown, commencing in 2017 or 2018, to care for
pre-school children. Whilst performing her duties for the appellant on 21 September 2020, the respondent walked down a slope covered in artificial turf. She rolled her right ankle in a ditch, while doing so, causing her to injure her ankle. She subsequently suffered a condition in her lumbar spine as a consequence of that injury.On 6 June 2023 the respondent’s solicitors wrote to the appellant advising them that the respondent claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her injury of the order of 43% whole person impairment (WPI). They further advised that the respondent relied on a report of
Dr Mohammed Assem dated 3 May 2023, which they enclosed with their correspondence. The Appeal Panel notes that Dr Assem is a rehabilitation specialist.In his report Dr Assem detailed the findings he made from his clinical examination of the respondent. These included that the respondent could not perform passive movements of the joints of her right leg as she had “severe pain, allodynia and hypersensitivity on light touch of her ankles that extended to her entire right leg but were less pronounced proximally”. Dr Assem noted that he could not measure movements of the respondent’s right hip and knee due to the severity of her symptoms.
Dr Assem advised that the respondent satisfied the criteria of Table 17.1 of the Guidelines for a diagnosis of complex regional pain syndrome (CRPS) to be made, allowing the respondent’s permanent impairment to be rated by reference to the criteria for CRPS,
Dr Assem advised that he assessed the appellant had 40% WPI relating to her right lower extremity. He advised this was on the basis that the respondent had moderate pain and abnormal sensation that interferes with her mobility, and he considered that represented
“a Grade 1 sensory impairment or 100% sensory loss of the entire right leg”.Dr Assem also advised that he assessed the appellant had 5% WPI relating to her lumbar spine, and when combined with the impairment the respondent had relating to her right leg, her permanent impairment equated to 43% WPI.
The respondent was also examined by orthopaedic surgeon Dr Stephen Rimmer on
20 November 2023, at the request of the appellant’s insurer. Dr Rimmer produced two reports relating to his examination, the first on 23 November 2023 and the second on
23 January 2024. The latter report followed the appellant’s solicitors requesting Dr Rimmer to produce a supplementary report seemingly to answer specific questions regarding some of the opinions Dr Rimmer expressed in his earlier report.The Appeal Panel notes that the correspondence from the appellant’s insurer and the appellant’s solicitors, by which the requests were made to Dr Rimmer to examine the respondent and to provide reports, are not before the Appeal Panel. It is apparent however from Dr Rimmer’s earliest report that he had before him the report of Dr Assem of
5 May 2023, on which the respondent had relied in support of her claim for compensation from the appellant.Dr Rimmer’s findings from his clinical examination of the appellant, as recorded in his earliest report, detailed that the respondent had discolouration to her right foot and ankle. Dr Rimmer noted the respondent claimed she could not move her ankle subtalar joint or toes more than a few degrees and would not permit him to palpate her right foot. Dr Rimmer said he was unable to examine her lumbar spine. Dr Rimmer did not indicate whether he examined or attempted to examine her right lower extremity other than her ankle and right foot. With respect to the symptoms the respondent reported, Dr Rimmer described them as being constant pain that were global in position and dysaesthesia, swelling and colour change. Those symptoms were detailed in his report under the sub-heading “right foot and ankle”.
Dr Rimmer did not indicate in his report whether he sought to elicit from the respondent if she suffered any symptoms in her right leg other than in her right foot and ankle. Dr Rimmer did note under the heading “current treatment” that the respondent had been attending a physiotherapist once a week for the prior two years predominantly to treat her knees.Dr Rimmer diagnosed the appellant had CRPS type 1 and mechanical lumbosacral back pain. He said that the respondent’s CRPS is a result of her right ankle sprain. He said that the respondent’s altered gait pattern, which was a result of her right ankle injury, caused her mechanical lumbosacral back pain. Dr Rimmer’s diagnosis of CRPS was in accordance with the criteria set out in Table 17-1 of the Guidelines. He assessed that she had 25% WPI from her injury on the basis that “it is equivalent to a hind foot amputation”.
Dr Rimmer said he had “no opinion regarding Dr Assem’s opinion”. In his subsequent report Dr Rimmer noted that his assessment of the respondent’s permanent impairment by reference to a right hind foot amputation, rather than the methodology provided in the Guidelines for assessing impairment by reference to CRPS type 1, was, in substance, because his examination of the respondent’s right foot and ankle was highly limited.
Dr Rimmer again repeated in his subsequent report that he had no opinion regarding
Dr Assem’s opinion.On 16 February 2024 the appellant’s solicitors wrote to the respondent’s solicitors advising that the appellant offered to pay compensation to the respondent under s 66 of the 1987 Act for 25% WPI. It indicated that the offer was based on Dr Rimmer’s findings, and they attached with their correspondence Dr Rimmer’s reports of 23 November 2023 and
23 January 2024.Thereupon the respondent initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute (ARD) dated 23 August 2024, seeking the Commission determine her claim for compensation for permanent impairment from her injury.
Following the respondent filing a Reply to that application, a delegate of the President of the Commission issued a referral to the Medical Assessor to assess various medical disputes relating to the respondent ‘s claim.
The Medical Assessor examined the respondent on 23 October 2024. As said, on
29 October 2024 he issued the MAC. In that he certified that he assessed the degree of the respondent’s permanent impairment from her injury was 31% WPI, comprising 27% WPI relating to her left lower extremity, 5% WPI relating to her lumbar spine and 0% WPI relating to CRPS. He advised in his report that his assessment of the degree of the respondent’s permanent impairment relating to her right lower extremity was on the basis that she had a restricted range of movement of her ankle, hind foot and knee. He advised he had found from his examination of the respondent’s knee that she had 10° extension lag, which was normal, but 90° flexion which corresponded with 10% lower extremity impairment. He advised that he found that the respondent had no movement of her ankle joint and her hind foot and he assessed her impairment relating to that joints by reference to fusion of the joints, which he equated to 54% lower extremity impairment for the ankle and 10% lower extremity impairment for the hind foot and subtalar, which together combines to 64% lower extremity, and which, when combined with the lower extremity impairment relating to the knee, came to 68% lower extremity impairment. That converted to 27% WPI.The Medical Assessor advised that the respondent did not meet the criteria within the Guidelines for a diagnosis of CRPS 1 because she did not meet criteria 3 and 4 as specified within Table 17.1 of the Guidelines.
The Medical Assessor advised that his assessment of the respondent’s permanent impairment relating to her lumbar spine was on the basis that her symptoms and signs of her lumbar spine correlated with the criteria within DRE Lumbar Category II. He assessed her at the base range provided within that category. He did not add anything for the effect on the respondent’s disabilities and restrictions with respect to her activities of daily living, as he considered these were due to her right leg injury and not her back injury.
Neither party has raised an issue with any of the Medical Assessor’s findings from his examination of the respondent or his ratings of impairment based on his findings. What is an issue is whether the Medical Assessor ought to have examined the respondent’s right knee and included a rating of impairment relating to her right knee in his assessment of the respondent’s permanent impairment from her injury.
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 it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established any of the grounds for appeal on which it relied, and consequently the Appeal Panel neither had power nor reason to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the medical dispute that arose between the parties, and which the Medical Assessor was required to assess, did not include anything relating to an “alleged right knee injury”. The appellant referred to the decision of the Court of Appeal in Skates v Hills Industries Ltd [2] (Skates) and submitted that the medical dispute that arose between the parties was crystallised by the correspondence attached to the claim and the appellant’s ARD. The appellant submitted that the respondent’s right knee never formed part of her claim.
[2] [2021] NSWCA 142
The appellant referred to the decisions in Yieldiz v Fullview Plastics Pty Ltd[3] and Voudouris v TDV Constructions Pty Ltd[4], and submitted that the respondent’s claim for compensation for permanent impairment from her injury did not include any impairment relating to her right knee and consequently the respondent cannot recover compensation for impairment relating to her right knee.
[3] [2019] NSWWCCPD 24
[4] [2023] NSWPICPD 53
The appellant submitted that neither Dr Assem nor Dr Rimmer assessed the respondent’s impairment of her right knee. The appellant submitted that the respondent’s claim for compensation that was made by means of her solicitors’ letter dated 6 June 2023 identified an injury to her right ankle and lumbar spine only and that the offer that the appellant made to the respondent to settle her claim related to her “right lower extremity (ankle) and lumbar spine injuries only”. The appellant highlighted that the “injury details” in the ARD detailed an “injury to the right ankle and a consequential injury to the lumbar spine”. The appellant submitted that there was never an allegation of injury to the respondent’s right knee nor any medical dispute between the parties regarding impairment of an alleged right knee injury.
The appellant submitted because the Medical Assessor’s assessment included an impairment the respondent had relating to her right knee, the MAC contains a demonstrable error, and the Medical Assessor made his assessment based upon incorrect criteria.
In reply, the respondent submitted that it is apparent from Dr Assem’s report that he assessed she had an impairment that affected her entire right leg. The respondent submitted that the Medical Assessor did not find that she suffered an injury to her right knee but rather that she had restricted movement of her knee as a result of her right ankle injury. The respondent submitted this was consistent with the conclusion of Dr Assem that her right ankle injury resulted in an impairment affecting the entirety of her right leg. The respondent noted that Dr Assem’s assessment of impairment was limited to the ankle and foot.
The respondent, relying on Oswell v Sublime Install Pty Ltd[5], wherein Basten AJ explained the reasoning in Skates, submitted that the medical dispute that was referred to the Medical Assessor, when properly considered, was a dispute regarding her impairment of her entire right leg resulting from the injury to her right ankle.
[5] [2024] NSWSC 1586
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.
Both Dr Assem and Dr Rimmer found from their respective examinations of the respondent that she met the criteria set out in the first five bold bullet points under the heading “Complex Regional Pain Syndrome Type 1” in the Guidelines to enable a finding that CRPS is present.
Dr Assem assessed the appellant’s permanent impairment by reference to the sixth to tenth bold bullet points under that heading, appearing immediately above the heading
“Complex Regional Pain Syndrome Type 2, causalgia”.Dr Rimmer, although finding that the respondent qualified for a diagnosis of CRPS to be made, did not make an assessment by reference to the sixth to tenth bullet points because of the manner in which the respondent presented at his examination. In that circumstance, he assessed the respondent’s impairment by reference to what he considered an analogous method being a hind foot amputation.
It is apparent from what Dr Assem recorded in his report under the heading “Examination” that he found the respondent’s injury affected the whole of her right leg. He found that she could not lift her right leg off the couch. He found that the respondent could not undertake passive movements of her right leg because of severe pain, allodynia and hypersensitivity on light touch of her ankle that extended to the entirety of her right leg. He could not measure movements of her right hip or her right knee because of severity of the respondent’s symptoms. His reasoning to explain his assessment that the degree of the respondent’s permanent impairment relating to her right lower extremity is 40% WPI, included that she had a Grade 1 sensory impairment for the whole of her right leg and that he was unable to examine her hip, knee and ankle due to complaints of severe pain.
It is the case, as the respondent submitted, that Dr Assem did not make any finding that the respondent had injured her right knee. Rather, and again as the respondent submitted, the assessment Dr Assem made of the respondent’s permanent impairment from her right ankle injury was made by reference to a sensory impairment the respondent had of her entire right lower extremity and that assessment was done by reference to the criteria for assessing impairment due to CRPS. Dr Assem, similar to Dr Rimmer, could not measure the restriction the respondent had of the joints in her right lower extremity because of the symptoms the respondent exhibited at the time of their respective examinations.
In the Appeal Panel’s view Dr Assem’s report cannot be read as limiting the respondent’s claim for compensation to an impairment of her right ankle only. Indeed, to the contrary, her claim, based on Dr Assem’s report, is for compensation for an impairment of the entirety of her right lower extremity due to the injury to her right ankle, which Dr Assem had been able to assess by reference to the criteria for CRPS.
It cannot be concluded from the fact that Dr Rimmer did not assess the impairment the respondent has relating to her right knee, that the medical dispute between the parties did not include any impairment that the respondent had in her right lower extremity beyond her right ankle and foot. It seems to the Appeal Panel that it is implicit from Dr Rimmer’s earliest report that he was aware that the respondent experienced symptoms in her right knee from her right ankle injury in that he noted that she was receiving physiotherapy treatment on her knee. As mentioned earlier, the material before the Appeal Panel does not include any correspondence from the appellant’s insurer or the appellant’s solicitors that reveals exactly what instructions were provided to Dr Rimmer relating to the assessment he was to undertake.[6] That is, based on the material before the Appeal Panel it simply cannot be known whether Dr Rimmer was required to limit his assessment of the respondent’s permanent impairment to her right ankle and foot or to CRPS if he found that the respondent met the criteria stipulated in the Guidelines for a finding to be made that she had CRPS.
[6] The Panel notes for the sake of completeness that s224 of the 1998 Act does not enable it to call for the production of that correspondence
In any event, as the Appeal Panel has already indicated, the correspondence from the respondent’s solicitors to the appellant, by which the respondent made her claim for compensation, which was attached to Dr Assem’s report, revealed that the medical dispute between the parties and the scope of it was the degree of the respondent’s permanent impairment from the injury to her right ankle, which injury resulted in the appellant suffering symptoms in the entirety of her right lower extremity.[7]
[7] Skates at [46] – [48], Oswell at [9]
The cases of Yieldiz and Voudouris on which the appellant relied are not to point. Yieldiz related to whether a worker could claim compensation under the appeal s 67 of the 1987 Act. President Phillips in that case held, in substance, that compensation cannot be recovered unless a claim for compensation has been made. The worker had resolved a claim for s 66 compensation prior to 19 June 2012. The worker made his claim for compensation under repealed s 67 on 30 March 2017. His purported s 67 claim therefore was not made after
19 June 2012. The worker was consequently not entitled to claim compensation under that repealed provision. The circumstances of that case are entirely different to this case and involved an issue not alive in this case.Voudouris is also not germane to the circumstances of this case. In that case the worker claimed compensation under s 66 of the 1987 Act relying on reports of Dr Pillemer and
Dr Curtis. Dr Pillemer assessed the worker had 33% WPI based on a combination of impairments he assessed the worker had of his right lower extremity and left lower extremity and scarring. Dr Pillemer also assessed the worker had “0% WPI” relating to his lumbar spine. Dr Curtis had assessed that the worker had “no resultant impairment in relation to oral facial injuries”. The respondent employer in that case relied on a report from Dr Rimmer who had assessed the worker had 8% WPI which was a combination of impairments. Dr Rimmer had assessed the worker’s injuries to his right and left wrists, right elbow, right femur and right knee.An issue arose between the parties regarding “whether a body system assessed as 0% WPI could be referred to a Medical Assessor for assessment, being the face and lumbar spine”.[8] The member of the Commission, to whom the matter was referred, determined that “the oral facial and lumbar spine injuries cannot be included in a referral to a Medical Assessor for assessment”. The Certificate of Determination recording that determination of the member was confirmed by President Phillips. President Phillips held the “constituent parts of the claim are made up of the various WPI assessments, including two assessments as 0% WPI”. President Phillips held that “the individual assessments of 0%, by definition, cannot form part of the claim for compensation as neither contributed to the WPI percentage necessary to surmount the s 39 threshold”.
[8] Voudouris at [8]
That is a different circumstance to this case because there has been no assessment that the respondent has 0% WPI relating to her right knee.
Indeed, it seems to the Appeal Panel this case is more akin to the circumstances in Klement v Bull “N” Bush Nurseries Pty Ltd[9], in that the claim that the respondent advanced included impairments of her right lower extremity resulting from her right ankle injury. The claim, attaching Dr Assem’s report, made that apparent. The documents attached to the ARD, which include a statement the respondent signed on 22 August 2024, wherein she said at [12] that she “occasionally experienced pain in her right knee” also made it apparent that her right ankle injury affected her right lower extremity beyond her right ankle.
[9] [24] NSWSC 466
The Medical Assessor concluded, based on the symptoms the respondent reported to him and his findings from his examination of the respondent, that she did not meet the criteria specified in the Guidelines to enable a finding that she had CRPS for the purposes of assessing her impairment by reference to CRPS. As indicated earlier, neither party has taken issue with that. Further, the Appeal Panel considers that this conclusion of the Medical Assessor is correct. The Medical Assessor, being unable to assess the respondent’s impairment by reference to the criteria for CRPS, was required to assess her impairment by reference to another method. Paragraph 3.3 of the Guidelines required the Medical Assessor to use the most specific method of impairment. The Medical Assessor used the range of motion method for evaluating the respondent’s impairment, and as indicated neither party took issue with that, the appellant’s concern being that any impairment relating to the respondent’s right knee was not part of the medical dispute. For reasons the Appeal Panel has explained above, it considers the Medical Assessor was correct to do so. That is, he was correct not to limit himself to the respondent’s right ankle, as the appellant submitted he should have.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 October 2024 should be confirmed.
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