Larken v Perry
[2025] NSWPICMP 849
•4 November 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Larken v Perry [2025] NSWPICMP 849 |
| APPELLANT: | Stephen Larken |
| RESPONDENT: | Paul Perry |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 4 November 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by claimant as Medical Assessor (MA) did not assess the left upper extremity; whether MA under an obligation to assess a part of the anatomy that was not named in the referral; whether procedural fairness required him to do so; whether spinal radiological investigations showing relevant pathology accompanied by complaints of pain should have resulted in a whole person impairment (WPI) assessment; whether lumbar spine examined by the MA; whether adequate reasons given; Held – employer conceded left upper extremity should have been in the referral and consented to a re-examination; Skates v Hills Industries Ltd referred to; lumbar spine properly examined and findings given; MA admitted to not reading relevant material before assessment interview; presumption of regularity considered; Jones v The Registrar WCC, and Stolzenberg v Workers Compensation Nominal Insurer considered and applied; claimant re-examined; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 April 2025 Stephen Larken 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 20 March 2025.
On 15 April 2025 Stephen Larken lodged a Reconsideration Application as a body part “the left upper extremity had been omitted inadvertently from the referral.”
On 23 April 2025 the respondent conceded that the terms of the referral had omitted the left upper extremity.
On 14 May 2025 the respondent lodged its Notice of Opposition to the Appeal.
The delegate of the President Ms Candy Yang determined that the matter should proceed to the Appeal Panel notwithstanding the agreement regarding the left upper extremity, as the appellant relied on incorrect criteria and demonstrable error as grounds of the appeal.
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). WPI is reference to whole person impairment. Baseline WPI is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 21 January 2025 this matter was referred to the Medical Assessor seeking an assessment of WPI caused by injury to the nervous system, lumbar spine, thoracic spine and scarring (TEMSKI) arising from an injury on 4 June 2015.
Mr Larken was employed as a strapper at the respondent's stables. He was standing on a ramp on the date of injury holding the reins of a horse which he had just finished exercising and was about to walk down the ramp. The horse reared and knocked Mr Larken off the ramp causing him to fall to the ground. He had no recollection of the impact.
He thought he was unconscious for 6 to 10 minutes and his next recollection was the ambulance officer speaking to him.
Mr Larken was discharged from the John Hunter Hospital on 11 June 2015 and the notes recorded that he had suffered post-traumatic amnesia throughout that time.
The discharge summary stated that he had been trampled by a horse and sustained a haematoma to the thoracic spine, a compound fracture dislocation to the right elbow and a head injury.
The reference to the right elbow the Medical Assessor considered was a typographical error as the injury occurred to the left elbow.
Mr Larken underwent at least nine additional surgical procedures on his elbow, the last having been performed about 12 months prior to the assessment.
He complained of ongoing back pain which limited his physical function to the Medical Assessor.
On being asked, Mr Larken also said he had difficulty with memory and judgment since the injury.
Mrs Larken was also present at the consultation and she indicated that Mr Larken began to suffer marked impairment of retentive memory after the injury which was continuing. He was unable to be responsible for the financial affairs of the family or to make judgment decisions Mrs Larken having taken over that function.
Mrs Larken also reported that Mr Larken became disorientated in space on occasion which was illustrated by his asking her which way to go when he is in a familiar environment.
Mr Larken had also withdrawn from the community. He no longer was a reader, nor was he an amateur painter to the same degree he used to be.
The Medical Assessor found a 15% combined value which consisted of 14% for the nervous system and 1% for the scarring. He found 0% WPI in relation to both the lumbar and the thoracic portions of the spine.
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 nature of the error demonstrated as described below meant that a re-examination was needed.
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
Dr Margaret Gibson of the Appeal Panel conducted an examination of the worker on
29 August 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered below 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.
The MAC
The Medical Assessor gave his findings on physical examination at [5] of the MAC.
With regard to the claim for injury to the spine he said:[1]
“Thoracic movements were performed over a normal range of symmetrically including rotation to right and left without muscle guarding or spasm. He was able to perform forward flexion in the standing position, bringing his fingers to the lower third of his lower legs in the midline without muscle guarding. Lateral flexion and extension were performed with marginal limitation symmetrically without lumbar muscle guarding all (sic) muscular spasm at any level. There was no local muscular spinal tenderness.”
[1] Appeal papers page 40.
The Medical Assessor also examined the “shoulder” (we assume the left shoulder). He said:[2]
“He exhibited normal shoulder, wrist and finger movements on formal testing and also when removing his tight T-shire and replacing it. There was also no impairment of the fine finger movement bilaterally, nor wasting of the intrinsic muscles of the hands. He was able to remove his footwear, requiring the need to unit his shoelaces and retie them whilst seated in a chair; he did so easily and with unimpaired bimanual dexterity or spinal movements. There was 10 degrees less elbow extension on the left side compared with the right elbow.”
[2] Appeal papers page 40.
In considering the investigations before him at [6] of the MAC, the Medical Assessor said:[3]
“Compression fractures were recorded with particular reference to the thoracic 3rd, 8th, 9th and 10th thoracic vertebrae. Rib fractures were recorded to have involved the 4th to 8th ribs on the left side.
The discharge summary records radiological information, including CT scans of the thoracic spine, performed on 4 June 2015 and reports ‘there is a loss of vertebral body height in the T3 vertebrae secondary to compression fracture of indeterminate age. There are no cervical spine fractures…” Attention was directed to the compression fractures and I quote, ‘there are also compression fractures of the T3, T8, T9 and T10 vertebrae. The T3 fracture appears old; the lower fractures are of indeterminate age. The posterior elements are intact. A bone scan or MRI may be helpful if clinically required’. Reference is also made to a CT scan of the cervical spine indicating there to have been no abnormalities at that site.”
[3] Appeal papers page 40.
The Medical Assessor referred further to the thoracic spine in considering the investigations. He said:[4]
“There are multiple radiological reports; on dated 16 August 201 provides detail regarding the thoracic spine compression fracture in these terms, ‘there is wedging without associated oedema at T2, T3, T8, T9 and T10…. Height loss is most marked at T3 where anterior vertebral height loss of 50% is noted.”
[4] Appeal papers page 41.
The Medical Assessor examined the MRI scan of the lumbar spine on 16 August 2021 stating that it indicated degenerative disease “But no reference was made to a compression fracture in the report prepared by Dr McWhirter”.
The Medical Assessor noted that earlier lumbar spine MRI scans of August 2018 and
18 September 2018 made no reference to compression fractures.A CT scan performed on 20 July 2018 again referred to mild degenerative disease, as the Medical Assessor said without reference to compression fractures.
Further an MRI of the lumbar spine on 26 June 2017 reported by Dr Holt again referred to degenerative changes without reference to “focal disc protrusion, neural compression or compression fracture.”
In his summary the Medical Assessor noted that there was “clear documentation” of the incident including that Mr Larken had 6 to 10 minutes of unconsciousness and six days of post-traumatic amnesia with an ongoing impairment of mental status functioning.
He said:[5]
“There is documentation from other doctors drawing attention to long standing spinal fractures dated from earlier traumatic events not mentioned during history taking to the writer by Mr Larken. These documentary details are noted subsequent to the history provided to my [sic] by Mr Larken.
The documentary evidence does not allow the identified compression fracture to have occurred at the time of the injury in June 2015. The findings on physical examination identified no significant limitation or asymmetry of spinal movements in particular no guarding or muscle spasms in the lumbar or thoracic region.”
[5] Appeal papers page 41.
In commenting on the evidence before him the Medical Assessor again noted that
Dr O'Sullivan on 29 December 2022 took a history of injuries “not mentioned to me during my consultation with Mr Larken.”The Medical Assessor listed and described those injuries noted by Dr O'Sullivan as follows:
“The first of those injuries was in 2014 when he reported falling from a horse. Injuries were significant causing pelvic and sacral fractures with history from Mr Larken to
Dr O’Sullivan that he had always had back pain since the injury in 2014. There is also history recorded in Dr O’Sullivan’s report documenting history from Mr Larken that he recalls being told at the site of the injury on 4/6/2015 that he was about to be given Ketamine injections for pain. That instruction must have been given by the ambulance officers and is in keeping with Mr Larken’s vague recollection reported to me today that he was informed at the I site of the injury that unconsciousness had been preset for between 6 and 10 minutes. Dr O’Sulliaven also recorded that unconsciousness occurred and estimated a time of 7 minutes…”The Medical Assessor referred to other information that was contained in Dr O'Sullivan's report.
Having noted this information that was not available to him at the time of the consultation with Mr Larken, the Medical Assessor said:[6]
“The clinical findings on examination today reported above do not depend on verbal testament and Mr Larken’s memory and reveal no significant impairment of spinal movement and no muscle guarding or muscle spam at any spinal level.
On the basis of evidence available to the writer and following the directives of the SIRA Guides and AMA 5, my clinical judgement and taking into account the normal spinal movements and the absence of muscle spasm noted during my examination today or guarding there is no evidence of any impairment of spinal function nor compression fractures causally connected to the injury which occurred on 4 June 2015.”
SUBMISSIONS
[6] Appeal papers page 43.
Appellant
Mr Larken referred to the standard cases as to the interpretation of incorrect criteria and demonstrable error.
Ground one: Failure to exercise jurisdiction
As noted above the referral did not include a request for assessment of the left upper extremity. It was alleged that the Medical Assessor misdirected himself by stating that he was required to assess those injuries that were referred to him.
Mr Larken went so far as to say it was unclear why the Medical Assessor took that course. Mr Larken said that the Medical Assessor had noted the injury to the left elbow and conducted a physical examination of it. It “should have been clear,” it was submitted, that there was no issue about the elbow, as it had not been raised in the reply. A reading of the dispute notices would have shown that the respondent agreed that the left elbow should be assessed.
Ground two: Procedural fairness
Mr Larken submitted that a clerical error appeared to have occurred in the referral document.
Mr Larken contended that as the Medical Assessor was aware that there was an injury to his elbow it was not procedurally fair that he simply ignored it. “It was incumbent upon the MA to bring the error to the attention of the parties before proceeding on that error to the worker's obvious disadvantage”, Mr Larken said.
Mr Larken observed that the Medical Assessor had seen that there had been about 10 surgical procedures to the left elbow and therefore “One would have expected” that the error would have been brought to the parties’ attention.
Discussion
These two grounds may be dealt with shortly.
There is no obligation on a Medical Assessor to peruse the pleadings in order to discover the parameters of his assessment. His function is to consider the injuries and consequential conditions that have been defined within the referral. The referral is a standard form document prepared by the Registry after the parties have agreed, or the Personal Injury Commission (Commission) has ordered, that an assessment be carried out by a Medical Assessor. The Commission circularises a draft of the referral to the parties to ensure that its contents properly reflect their agreement, or the orders made, and the parties are invited to notify the Commission if there is any objection. A failure to do so by both parties was described by Basten JA as “inexplicable” in Skates v Hills Industries Ltd and his Honour expressed an opinion that such a failure would provide a sound reason for refusing leave to appeal.[7]
[7] [2021] NSWCA 142 at [36].
Accordingly Mr Larken’s submissions are misconceived. There was no failure by the Medical Assessor as alleged, rather the failure lies with the legal representatives.
It appears that both parties in the present case failed to raise the matter with the President, but we note that the respondent agrees that a referral for assessment of the left elbow was intended and does not object to a re-examination by a Panel member for that purpose.
Grounds 1 and 2 are accordingly rejected.
Ground three: Lumbar spine
Mr Larken submitted that it did not appear that the lumbar spine had actually been examined, and the finding by the Medical Assessor in his summary at [7] of the MAC that there was no significant limitation in the lumbar (or thoracic) region was consequently contradictory. (The submission at 24 alleged that the Medical Assessor had found that there was significant limitation, but we assume that was a typographical error).
It was further submitted that “it is not clear” whether the Medical Assessor took into account the MRI scan of 17 August 2021, which demonstrated disc pathology at L4/5 and L5/S1, apart from “to defer to degenerative change.”
The Medical Assessor had failed to assess the lumbar spine in accordance with the mandated guideline contained in Table 15 – 3 of AMA 5, Mr Larken said. The evidence of the radiological scans suggested, he submitted, a higher lumbar rating than Category 1.
Ground four: Thoracic spine
Mr Larken submitted that it was not clear how the Medical Assessor dealt with much of the radiological material, and referred as an example to an MRI scan of 17 August 2021 which demonstrated a compression fracture at T7.
Whilst the Medical Assessor noted that there were multiple radiological reports detailing compression fractures in the thoracic spine, Mr Larken said it was unclear why they did not result in an assessment of WPI.
Mr Larken submitted that it would be “glaringly improbable” that there would be no deficit in the thoracic spine even on the history taken by the Medical Assessor, which included the acknowledgment of a haematoma to the thoracic spine and Mr Larken noted that the Medical Assessor noted the presence of pain in both the thoracic and lumbar spine (although he did not explain how that complaint could sound in any award for WPI).
Mr Larken referred to Table 15-4 of AMA 5 and submitted that the finding of a compression fracture should have resulted in an impairment between 5-28% WPI.
He submitted that the findings from the radiological scans would suggest an impairment higher than Category 1.
Ground five: Reasons
We were referred to Wingfoot Australia Partners Pty Ltd v Kocak[8] in that the Medical Assessor had failed to disclose his path of reasoning in reaching his medical conclusion.
[8] [2013] HCA 43.
Respondent submissions
The respondent submitted that there had been no error made by the Medical Assessor and that the appeal should be dismissed. It submitted that a review of the MAC did not support either ground 3 or ground 4 of Mr Larken’s submissions.
As to the failure to refer to the left upper extremity in the referral, the respondent submitted that it had conceded that the reference was omitted and did not oppose Mr Larken's application for re-examination by the Medical Assessor for that purpose.
We were referred to some dicta in Ferguson v State of NSW[9] to the effect that the
pre-eminence of clinical observations could not be understated, and that the judgement as to the significance or otherwise of the matters raised in the consultation was very much a matter for the clinician.[9] [2017] NSWSC 887 at [23].
Discussion
Mr Larken is to be re-examined because the respondent has conceded that the terms of the referral omitted any reference to injury to the left upper extremity (elbow).
As to Mr Larken’s submission that the lumbar spine was not the subject of any findings on examination, we note that the Medical Assessor in his summary at [7] of the MAC stated:
“The documentary evidence does not allow the identified compression fracture to have occurred at the time of the injury in June 2015. The findings on physical examination identified no significant limitation or asymmetry of spinal movements in particular no guarding or muscle spasms in the lumbar or thoracic region.”
In his examination findings, the Medical Assessor said at [5] of the MAC, to repeat:
“Thoracic movements were performed over a normal range of symmetrically including rotation to right and left without muscle guarding or spasm. He was able to perform forward flexion in the standing position, bringing his fingers to the lower third of his lower legs in the midline without muscle guarding. Lateral flexion and extension were performed with marginal limitation symmetrically without lumbar muscle guarding all [sic] muscular spasm at any level. There was no local muscular spinal tenderness.”
It can be seen that although the paragraph began by referring to “thoracic movements,” it is probable that his reference to forward flexion lateral flexion and extension were concerned with an examination of the lumbar spine, which is reinforced by his reference to “lumbar muscle guarding.” Mr Larken’s submissions on this ground are also rejected.
However, the findings by the Medical Assessor regarding the compression fracture at T7 do raise a question as to his findings generally about the thoracic spine. The Medical Assessor noted that the investigations showed pathology at T2, T3, T8, T9 and T10, with height loss most marked at T3 where anterior vertebral height loss of 50% was found.
The authority relied on by the respondent, Ferguson, related to the circumstances of an assessment for psychological injury, where there are no physical signs or investigations to assist a Medical Assessor. The situation is somewhat different in a case of physical injury such as confronted the Medical Assessor in this case.
There is a presumption of regularity that a Medical Assessor as an administrative officer, will have performed such clinical tests as might be required and indeed read the material that was forwarded to him as part of the referral in order to carry out his function.[10] The presumption was considered in detail by Griffiths AJA in Stoltzenberg v Workers Compensation Nominal Insurer[11] following an erroneous application of the maximum by the delegate of the President. At [112] his Honour said:
“112. The passage referred to in Jones v Registrar Workers Compensation Commission (WCC) [2010] NSWSC 481 at [50] by the Delegate contains observations by James J that, in a judicial review of a medical assessment certificate where the medical assessor had conducted a clinical examination of the plaintiff and found that ‘the range of motion in the cervical spine was symmetrical’, a presumption of regularity applied that the medical assessor had performed such tests as required to make that determination. Again, that passage does not support the resolution of a dispute as to what was said during a consultation.”
[10] Jones v The Registrar WCC [2010] NSWSC 481.
[11] [2025] NSWCA 40 from [103].
Clearly, a Medical Assessor is required to read the material on which he was to base his assessment in order to make his determination. It is difficult to have confidence in the authenticity of the MAC when the Medical Assessor stated that he was not aware of relevant facts contained in the documentation at the time of the examination. The Medical Assessor said variously:
“There is documentation from other doctors drawing attention to long standing spinal fractures dated from earlier traumatic events not mentioned during history taking to the writer by Mr Larken. These documentary details are noted subsequent to the history provided to my [sic] by Mr Larken. (At [7] of the MAC].
I have a detailed neurological report from Dr O'Sullivan dated 29/12/2022 in which he refers to history taken from Mr Larken. That history includes reference to injuries not mentioned to me during my consultation with Mr Larken..”(At [10c]).
For these reasons, a re-examination was held with Medical Assessor Margaret Gibson of the Panel on 19 September 2025. Her report follows:
“Examination Conducted By:
Medical Assessor Margaret Gibson
Date of Examination:
29 August 2025
1. The workers medical history, where it differs from previous records
Mr Larken had been working as a strapper with Paul Perry Stables at the Broadmeadow racetrack. He said he was working between 35 and 40 hours a week at that stage and had been in the job for about 6 months.
At the time of the subject injury he had been standing on a ramp and holding onto a horse. He said the horse had just finished exercising (although he had not done the exercising). He was to walk the horse down the ramp, but it became unruly and reared up and knocked him over. He landed on the lower part ramp and the horse jumped on top of him, so he was crushed under the horse. He could not recall much else about the impact. He said he had slowly lost consciousness. He had apparently been unconscious for about 10 minutes. He remembered when he awoke he noticed his left arm was bent at a funny angle and the arm felt weak. By that stage he had been moved onto the ground by bystanders.
An ambulance arrived and he was transferred to John Hunter Hospital. He was an inpatient there until 11 June 2015 and diagnosed with a head injury, compound fracture dislocation of his left elbow and a thoracic spine haematoma. He said he had subsequently undergone 11-12 procedures to the injured left elbow, the last performed May this year and involved an ulnar nerve transposition procedure done by Dr Benjamin East at Warners Bay Hospital. He said that since this procedure he has developed wasting of the muscles of his left hand and he is now struggling with normal day-to-day activities including self-care.
DETAILS OF ANY PREVIOUS OR SUBSEQUENT ACCIDENTS, INJURIES OR CONDITIONS
Mr Larken was involved in a motor vehicle accident on 2 October 2012 and injured his low back. At the time he had been driving his utility to work at Somerset Pest Control. He had lost control of the vehicle on a wet road and went into to a ditch. About 6 weeks later, on 15 November 2012, he had x-rays of his thoracic spine which revealed fractures at T3 and T4. He was referred to Dr Richard Ferch. He was eventually cleared for return to work on light duties on 16 November 2012.
On 22 June 2014, he fell from one of his horses at home and sustained fractured right sacral ala. On 18 August 2014, CT scan of pelvis revealed a fracture line displaced over the anterior sacral ala on the left.
On 22 May 2015 he had fallen from his horse and fractured his right scapula and right ribs. He had a month of work but hadn’t required any surgical procedure.
GENERAL HEALTH
Mr Larken said that he suffers with asthma and uses a Ventolin inhaler and a preventer.
WORK HISTORY
After leaving year 10 at school he worked as a tiler.
He had worked in pest control between 2004 and 2013 for various different companies including Somerset Pest Control.
At the time of the subject accident, he was working with Paul Perry Stables as a strapper. However, he said his main job at the time was as a pest control inspector. He had been working part-time with Pelican Pest Control. He said he had been offered a full-time position and was due to commence work in this job a few weeks after the accident.
Since the accident in 2016, he started work as a disability support worker. He was in the job for 6-12 months. He said he was required to assist the clients on a physical basis. He seemed to indicate that he had been struggling with the physical aspects of the work and also he had some issues with his mental health.
2. Additional history since the original Medical Assessment Certificate was performed
PRESENT TREATMENT
Mr Larken visits his general practitioner on a monthly basis for certification.
He visits an exercise physiologist every few weeks.
Following the recent surgical procedure, he had 1-2 reviews with Dr East who had recommended he have hand therapy, but no other specific treatment was offered. Several weeks ago, he commenced treatment with a hand therapist who he now sees monthly.
He takes escitalopram 40mg daily, tapentadol 150mg twice daily, pregabalin 75mg twice daily and paracetamol as required.
PRESENT SYMPTOMS
Mr Larken reported a deep diffuse ache in his upper back. This is worse when driving, getting in and out of bed or walking even slowly.
There is low back pain most of the time, rated 6-9/10 severity. This improves with rest and worsens with any activity apart from swimming, which he finds relieving.
He said his legs feel weak at times. There is pain over the front of both thighs. At times he feels unstable when walking.
There is left elbow pain most of the time, rated at 8/10 severity. He finds his left elbow is stiff and there is a numb sensation over the ulnar two fingers and the ulnar forearm.
SOCIAL ACTIVITIES/ADL
Mr Larken lives with his wife, 20-year-old daughter and her partner and baby, in a house in Maitland. They had been living there for the last 18 months. His wife volunteered that they moved 7 times since the accident as they rent and don’t own.
He said he has difficulty with self-care, so doing up buttons and getting on his shoes. His wife has to help. He does do a bit of whipper snippering about the yard but his wife does the lawn mowing. He does the washing up at home but none of the cooking.
3. Findings on clinical examination
Mr Larken was accompanied to the assessment by his wife Janine. He was right hand dominant.
He was 185cm tall and weighed 105kg. There was no limp. There were no walking aids. He was able to walk on heels and toes.
On examination of the thoracic spine, there was a marked kyphosis. There was no tenderness. There was normal rotation bilaterally. There was no asymmetry, muscle spasm or guarding.
On examination of the lumbar spine, there was three-quarters normal flexion, one-third normal extension, three-quarters normal lateral flexion bilaterally and normal rotation bilaterally. There some muscle guarding with extension.
Straight leg raise was 45° bilaterally. Neurotension signs were negative bilaterally.
On examination of the lower limbs, circumferential measurements were 45cm at both thighs, 44cm at both calf.
There were normal power, sensation and reflexes bilaterally.
On examination of the upper limbs, circumferential measurements of the arms were 32cm on the right, and 31cm on the left, right forearm 32cm and left forearm 28cm.
Elbow flexion on the right 140° and on the left 120°, extension 0°, on the right -20° on the left. Pronation was 60 degrees and supination 50 degrees. Provocation testing for epicondylitis and carpal tunnel syndrome was negative.
There were normal power, sensation and reflexes in right upper limb.
On the left there was 4/5 power with elbow flexion and extension due to pain. There was atrophy of the interosseous muscles of the left hand. Finger abduction was reduced against resistance. Thumb adduction was reduced against resistance. Left upper limb sensation was reduced to light touch and two point discrimination in an ulnar distribution involving forearm and hand.
He had multiple scars over the left elbow. There was an 18cm curved scar anteriorly. There was a 20cm scar laterally extending over the olecranon and 8cm distally and 12cm proximally. There was a 3cm scar over the lateral aspect of the left elbow. There were no suture marks and all scars were pale but clearly visible. One of the smaller scars at the elbow had some atrophic features. There was no adhesion.
On examination of both hands, there were no colour, temperature or nail changes although subjectively he reported a cold sensation in the left hand.
CALCULATION
Ulnar Sensory impairment 60% x 7 = 4.2 = 4%
Ulnar Motor impairment 25% x 40 = 1.75 = 10%
14% UEI = 8% WPI
Left elbow – 6% UEI = 4%WPI
Lumbar spine
There was asymmetry and muscle guarding. There was no radiculopathy present. Based on Chapter 4 Workcover Guides and AMA 5, Table 15-3, p 384 the Lumbar Spine was assessed at DRE Lumbar Category I, thus 5% WPI.
Thoracic spine
There was no asymmetry, muscle spasm or guarding. There was no radiculopathy present. Based on Chapter 4 Workcover Guides and AMA 5, Table 15-4, p384 the thoracic spine was assessed at DRE Thoracic Category I, thus 0% WPI.
4. Results of any additional investigations since the original Medical Assessment Certificate
He brought no imaging studies with him for the assessment.”
We adopt Medical Assessor Gibson’s report. There was no appeal against the finding of the Medical Assessor of 14% for injury to the nervous system.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 March 2025 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: | W274/25 |
Applicant: | Stephen Larken |
Respondent: | Paul Perry |
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 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) |
| Nervous system | 4 June 2015 | Chapter 5 | Chapter 13 | 14% | 0% | 14% |
| Left upper extremity | 4 June 2015 | Chapter 2 | Chapter 16 Table 16-15, 16-10, 16-11, 16-3 | 8% | 0% | 8% |
| Lumbar spine | 4 June 2015 | Chapter 4 para 4.27, 4.30, 4.33 | Chapter 15 Table 15-3 | 5% | 0% | 5% |
| Thoracic spine | 4 June 2015 | Chapter 4 para 4.27, 4.30, 4.33 | Chapter 15 Table 15-4 | 0% | 0% | 0% |
| Scarring (TEMSKI) | 4 June 2015 | Chapter 2 | N/A | 1% | 0% | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 26% | |||||
0
6
0