Le v Tran Hue Lieu t/as Vina Foods Distributor

DETERMINATION OF APPEAL PANEL
CITATION:	Le v Tran Hue Lieu t/as Vina Foods Distributor [2024] NSWPICMP 78
APPELLANT:	Thanh Binh Le
RESPONDENT:	Tran Hue Lieu t/as Vina Foods Distributor
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	19 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) made one quarter section 323 deduction for previous injury; ample evidence of impact of that injury; section 323(2) did not apply and deduction was open to MA; error in combining figures to assess upper extremity impairment; assessment of scars under the TEMSKI; no basis to assess impairment from alleged carpal tunnel syndrome in light of normal nerve conduction studies; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 December 2023 Thanh Binh Le lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 November 2023.
Mr Le relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Le was employed by Mr Lieu trading as Vina Foods Distributor (Vina) in a warehouse when he suffered an injury to his left arm on 20 October 2015 when he fell while standing on pallet on the tines of a forklift. He fell 2.5 to 3 metres, falling onto his outstretched left hand. He suffered a consequential condition in his right shoulder and elbow.
About 20 years ago and before he came to Australia, Mr Le had injured his left forearm when he fell off a motorcycle. It was treated in a cast. He said in his statement that he had no problems with his arms in the period before the injury.
The Medical Assessor was asked to assess Mr Le’s left upper extremity (hand, wrist, elbow and arm), right upper extremity (shoulder and elbow) and scarring under the table for the evaluation of minor skin impairment (TEMSKI). He assessed 14% whole person impairment (WPI) in respect of the left upper extremity as a whole and deducted one quarter under s 323 of the 1998 Act, resulting in 11% WPI. He assessed 0% WPI in respect of the right upper extremity and 2% under the TEMSKI, resulting in a total assessment of 13% WPI.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Mr Le to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Le submitted that the s 323 deduction was excessive. While conceding that he had suffered a previous injury, Mr Le referred to his statement to say that he was asymptomatic before the injury and referred to the medical evidence to say that the injury was significant. He said that the “statutory 10% deduction” was not at odds with the available evidence.
With respect to scarring, Mr Le submitted that the scars were visible and impacted on his activities of daily living because the scars were itchy and showering in hot water temporarily made them worse. He said that the scars should be assessed at 4% WPI as Dr Guirgis did on his behalf.
Mr Le said that it was not clear from the MAC that the Medical Assessor had conducted an appropriate examination to determine if carpel tunnel syndrome was present, referring to the tests described by Dr Pillemer in his report dated 15 June 2021.
In reply, Vina submitted that the Medical Assessor had correctly applied the test in Cole v Wenaline Pty Limited[1] and that his conclusion was open to him. It also said that there was no demonstrable error on the face of the MAC with respect to the s 323 deduction.
[1] [2010] NSWSC 78.
Vina submitted that the Medical Assessor made a clinical judgement and disclosed his path of reasoning with respect to the assessment of scarring. It said that the Medical Assessor did conduct the appropriate examination to determine that Mr Le did not suffer carpal tunnel syndrome.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton,[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[3] the Court of Appeal held that an 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.
[3] [2006] NSWCA 284.

Section 323 deduction

The Medical Assessor recorded a history of the injury and Mr Le’s subsequent treatment. He said:
“He saw the bones of his arm sticking through his skin. He was taken to Liverpool Hospital and underwent open reduction and internal fixation of the fractures. A year later he had revision surgery for non-union. This involved harvesting of bone graft from the pelvis. For a long period of time Mr Le was dependent on using his right arm. He progressively started to develop pain which radiated down the side of his neck, over his shoulder and down to the lateral portion of the elbow on the right hand side.”
He said:
“Mr Le sustained a fracture to his left distal radius some 20 years ago. He was treated in a cast at the time. He was adamant that he had normal wrist and arm movement up until his injury at work. It is noted, however that the previous fracture had healed in 30° of dorsal angulation.”
The Medical Assessor assessed the range of motion of Mr Le’s shoulders, elbows, wrists and hands. Apart from the ground of appeal with respect to carpal tunnel syndrome, discussed below, Mr Le has not raised any issue with respect to those measurements.
Explaining his calculations the Medical Assessor said:
“The range of motion of the shoulders was assessed according to AMA 5 page 476 16.40, 477 16.43 and 479 16.46. No impairment was assessable on the basis of restricted range of motion.
Range of motion of the elbows was assessed according to AMA 5 page 472 16.34,
474 16.37. 2% upper extremity impairment was assessed for the left elbow on the basis of restricted pronation and supination.
Range of motion in the wrists was assessed according to AMA 5 page 467 16.28,
469 16.31. On the basis of differential range of motion in the wrists, 11% upper extremity impairment was assessed for the left wrist. It was noted that there was no active flexion of the third finger distal interphalangeal joint, presumably indicative of rupture of the flexor digitorum profundus tendon. According to AMA 5 page 461 Table 16.21, this is assessed as 36% impairment of the finger. AMA page 438 Table 16.1 converts this to 7% hand impairment which, according to page 439 Table 16.2 is a 6% upper extremity impairment.
There is partially reducible subluxation of the distal radioulnar joint in the left arm. AMA 5 page 501 Table 16.22 assesses this as 40% joint impairment. AMA 5 page 499 Table 16.18 assesses 20% upper extremity impairment for the radioulnar joint. 40% of 20% UEI is 8% UEI.
Combining 11% UEI plus 8% UEI plus 6% UEI gives 23% upper extremity impairment. According to AMA 5 page 429 Table 16.3, this converts to 14% whole person impairment.”
The Medical Assessor said that a s 323 deduction was appropriate because of a previous malunited fracture of the left distal radius. He said that it contributed to the assessment because:
“The restricted range of movement in the wrist and subluxation of the distal radioulnar joint is a consequence of the malunited radial fracture and not the recent injury at work.”
He said that the deductible proportion was one quarter because:
“The quarter deduction approximates the amount of impairment assessable for the subluxation of the distal radioulnar joint, which is a consequence of the previous malunion of the distal radial fracture.”

Principles of assessment

Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
Mr Le’s submitted that a deduction of one-tenth was not at odds with the available evidence. Paragraph 1.28 of the Guidelines would support that submission, however the paragraph omits the important opening words of s 323 (2) – “[i]If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence),…” To the extent that the Guidelines are inconsistent with the 1998 Act, the legislation prevails.[4]
[4] See, for example, Marks v Secretary of Communities and Justice (No 2) [2021] NSWSC 616.
In Cole v Wenaline Pty Ltd[5] Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was mandated because surgery had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[6]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”[7]
[5] [2010] NSWSC 78.
[6] At [29]-[30].
[7] At [38].
In this case there is contemporaneous evidence including Dr Laird’s surgical findings to show that the extent of the impairment arising from the first injury is not difficult or costly to determine.

Medical evidence

Dr Laird described surgery undertaken in his report dated 21 September 2015:
“He sustained a comminuted fracture of the left radius with fracture of the ulna approximately midshaft and open with two small less than 1 cm wounds probably coming from the radius within out.
… He was taken to the theatre for open reduction and internal fixation of the fractures. The wounds were also washed out. Due to his arm swelling, limited fasciotomies were performed and the arm was unable to be closed at the end of the case therefore a VAC dressing was applied as well as Vessiloop type dressing. It was also noted at the time of fixation that he has a malunion of his radius distal to the current fracture. He does not recall, I gather any previous injury but this is certainly malunited and about 20 degrees of dorsal angulation and this was certainly not a new fracture.”
Dr Harris undertook further surgery on 26 October 2015 when the wound was closed.
On 10 November 2015 Dr Laird wrote to Mr Le’s general practitioner and said:
“It was noted at the time of surgery that he has an old malunion of his more distal radial shaft. Initially his family did not know this, but today in the rooms, he admits to having had a fracture treated in his 20s in Vietnam non-operatively and he does admit that he did not have full forearm rotation prior to the recent injury, but otherwise his function was quite good. He normally works in a factory lifting fairly heavy loads.
… I do not expect him to achieve full forearm rotation given his previous injury.”
On 4 December 2015 Dr Kodur reported that an X-ray of the left forearm showed, in addition to the recent fractures, “a further malunited fracture of the distal third of the ulnar shaft which is united.”
Dr Laird wrote to the general practitioner again on 8 December 2015, saying:
“Mr Le is now six to seven weeks post ORIF and he is doing quite well. He has near normal flexion, extension of the wrist. He is lacking 30 degrees of supination and pro nation which I suspect dates pre-injury from his old malunion although he does not remember this. He has some mild pain in the wrist and also at the medial epicondyle and no tenderness and his x-rays look fine. The proximal radial fracture has not healed but that is expected at this stage I would like him to continue physio.”
On 9 February 2016 Dr Laird wrote:
“His range· of motion is quite good in flexion and extension, he achieves about 45 degrees of supination and pronation and it is still unclear how good this was prior to his recent injury, but I suspect he was lacking some from his old malunion. His DRUJ is not clinically unstable but this seems to be the area of his pain.
His x-rays show healing of the more distal radial fracture and the ulnar fracture, but the more proximal radial fracture has not yet united so I would like to keep him on light duties for the time being. He can do this for as long as he can tolerate, but I will review him again in three months' time with repeat x-rays. If he continues to show a non-union of the proximal radius fracture he may need revision surgery with a bone graft. Of course it is possible that he will continue to get problems with his wrist down the track which would no doubt in some way be related to his old malunion as well.”
On 10 May 2016 Dr Laird wrote:
“The prominence in the volar forearm is largely due to his old malunion but probably exacerbated by the plate which ends at about that level but is not particularly tender. It is only really present in supination. On further questioning with his case manager who speaks Vietnamese he has finally conceded that he had an old fracture about 20years ago when he was training for the army which was treated in plaster and after which he reported no ongoing problems and did not notice any deformity in the forearm.”
Dr Laird reported again on 9 August 2016:
“Mr Lee is now 10 months post injury and he is still doing light duties. He is complaining of pain primarily over the prominent volar plate which is made more prominent by his malunion and also in his wrist. The CT does show that the fracture has not united and I think at this stage it is reasonable to redress it surgically with bone grafting at the fracture site. I have explained to him that his symptoms are more from the old malunion and the prominent plate as well as in his wrist and that bone grafting the more proximal fracture site will not necessarily address all of these. Once we get the fracture to heal, we can then contemplate removal of the metal and possibly osteotomy of his radial malunion in order to solve his other problems. Initially we did discuss with him doing all of these in one sitting but on further consideration I think it is safer to get the fracture healed first before we go creating any new fractures ...”
On 29 November 2016 Dr Laird noted that the surgery had been successful though Mr Le “was still complaining of a dull ache around the distal end of the plate and pain In his wrist where he has degenerative changes related to his previous malunion.”
Those contemporaneous observations show that Mr Le had material issues relating to the previous fracture during the treatment for the work injury. It is clear that a proportion of the impairment is a result of the previous injury to Mr Le’s forearm and that a deduction of one-tenth in respect of the impact of the previous fracture is at odds with the evidence. In respect of Mr Le’s left wrist, the deduction of 25% was open to the Medical Assessor and we agree it was appropriate.
However, the Medical Assessor said that the relevant previous injury was the malunited facture of the left distal radius resulting in subluxation of the distal radioulnar joint. He did not suggest that the restriction of movement of Mr Le’s elbow or the tendon rupture in his finger was a result of the previous injury. Nonetheless, he combined all of the assessments from the various parts of Mr Le’s left upper extremity and converted that assessment to WPI before making the s 323 deduction. By assessing the impairment in that way, the Medical Assessor reduced the assessment of impairment arising from Mr Le’s left third finger and elbow which were not impacted by the previous fracture.

The appropriate calculation is therefore to combine the assessments made by the Medical Assessor of 11% upper extremity impairment (UEI) for the left wrist and 8% UEI in respect of partially reducible subluxation of the distal radioulnar joint, resulting in 18% UEI. Deducting one-quarter of that figure under s 323 results in 14% UEI, after rounding. 14% UEI combined with 6% UEI in respect of the injury to Mr Le’s finger and 2% UEI in respect of his elbow to achieve 21% UEI which converts to 13% WPI.

Scarring

Mr Le’s submissions referred to his statement where he said:
“l have two long visible scars on my left forearm. I have a scar on my left front groin/hip from that operation. The scars on my left hip and left arm are itchy, especially in hot weather when I sweat.
l feel pain around the scar.
The scar is itchy all the time. Showering in warm to hot water make the itching worse.”
Mr Le said that the Medical Assessor should have assessed 4% WPI because he noted that the scars were visible with normal clothing and because of the impact when showering in hot water.
The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [8] (Bojko) Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“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. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[8] At [36].
The Medical Assessor said:
“There were two well healed surgical incisions. There was a13cm volar incision with some irregularity in contour change. There was a 10cm incision along the ulna.”
Assessing impairment, the Medical Assessor said:
“With respect to the surgical wounds, Mr Le reports ongoing pain associated with the wounds. There is some contour defect. The scars are clearly visible with usual clothing. I assess 2% whole person impairment for scarring/TEMSKI.”
Paragraph 14.4 of the Guidelines says:
“…Three components – signs and symptoms of skin disorders, limitations in ADL and requirements for treatment – define five classes of permanent impairment. The assessing specialist should derive a specific percentage impairment within the range for the class that best describes the clinical status of the claimant.”
The note to paragraph 14.6 provides that “uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
Paragraphs 14.8 and 14.9 read:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.
Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.”
The Guidelines reinforce the discretion available to the Medical Assessor in the requirement to apply “best fit” and the reference to clinical judgement. The Medical Assessor’s comments reveal that he has had regard to the various factors in the Guidelines and the TEMSKI.
The TEMSKI sets out criteria for assessment at 2% WPI and 3 to 4% WPI. The Medical Assessor highlighted that the scars are well healed.
The location criteria are whether the scarring is usually visible or visible with normal clothing. The Medical Assessor noted that the scars are visible with normal clothing, though we note that this can only refer to the scar on his left forearm and not to those on his left hip and palm. With respect to the contour component he noted only “some contour deficit.” For each of those components and based on his description, assessment of 2% WPI was clearly open to the Medical Assessor in the exercise of his clinical judgement.
The component relevant to the activities of daily living (ADL) provides that 2% WPI is appropriate where there is minor limitation in the performance of few ADL. Assessment of 3 to 4% is appropriate where in addition “exposure to chemical or physical agents (eg sunlight, heat, cold etc) may temporarily increase limitation”. That is the only criterion which might be relevant to assessment of 3 to 4%. However, Mr Le did not say that he avoids showering in hot water because of the impact on his scars.
The assessment of 2% was open to the Medical Assessor in the exercise of his clinical judgement and applying the principle of best fit.
Combining 13% WPI in respect of Mr Le’s left upper extremity and 2% for scarring results in 15% WPI.

Carpal tunnel syndrome

Dr Pillemer considered in his report dated 15 June 2021 that Mr Le had symptoms in keeping with left carpal tunnel syndrome, even though he noted that the usual provocative tests were negative. He recommended that Mr Le see a hand specialist and that nerve conduction studies be undertaken.
Carpal tunnel syndrome is caused by pressure on the median nerve in the carpal tunnel of the wrist. The Medical Assessor described his examination and said that there was no sensory deficit consistent with compression of a peripheral nerve. He therefore said that he did not observe signs of carpal tunnel syndrome and it is presumed that he undertook all appropriate tests reach that diagnosis.
Mr Le was referred to Dr Griffith, neurologist, who reported on 19 October 2022. Dr Griffith noted reduced grip strength but said that he was not convinced that Mr Le was exerting full force. He said:
“Sensory testing was difficult. He reported slightly reduced light touch sensation over the entire left hand to the wrist. However, there was no objective wasting of the APB muscle or dorsal interossel and he had a negative Tinel's sign at the wrist forearm and elbow with symmetric upper limb reflexes. His lower limb examination was normal. He was unable to flex the left middle finger at the DIP joint
In summary | am not sure whether Thanh Binh has a peripheral nerve injury. | have organised upper limb nerve conduction studies to assess this further I will report back to you soon.”
Dr Griffith undertook nerve conduction studies on 21 October 2022 and determined:
“Normal left median nerve study including left lateral antebrachial nerve. No electrical evidence of median nerve entrapment in the forearm.”
The Medical Assessor’s finding is consistent with that finding and we agree that it does not support a diagnosis of carpal tunnel syndrome.
For these reasons, we have determined that the MAC issued on 13 November 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:	W6068/23
Applicant:	Thanh Binh Le
Respondent:	Tran Hue Lieu t/as Vina Foods Distributor

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 Dr Rob Kuru and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in 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)
Left upper extremity (hand, elbow and wrist)	20/10/15	Chapter 2	476 16.40 477 16.43 479 16.46 472 16.34 474 16.37 467 16.28 469 16.31 461 16.21 501 16.22 499 16.18	13%	¼ in respect of wrist only (see reasons)	13%
Right upper extremity (shoulder, and elbow)	20/10/15	476 16.40 477 16.43 479 16.46 472 16.34 474 16.37	0%	0	0%
Scarring (TEMSKI)	20/10/15	Chapter 14	2%	0	2%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2024] NSWPICMP 78

19 February 2024