Lennon v O S Trees Pty Limited ATF the O S Trees Trust
[2022] NSWPICMP 515
•15 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lennon v O S Trees Pty Limited ATF The O S Trees Trust [2022] NSWPICMP 515 |
| APPELLANT: | Benjamin Lennon |
| RESPONDENT: | O.S. Trees Pty Ltd ATF The O. S. Trees Trust |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 15 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Medical Assessor (MA) did not combine impairment; MA assessed appellant to have impairment of the right hip based on range of motion with the impairment he assessed the appellant to have of the femoral shaft based on diagnosis-based estimate; whether Table 17-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed applied to prevent the combination of those impairments; Held – Appeal Panel held it did not; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 August 2022 Benjamin Lennon, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 July 2022 (MAC of 27 July 2022).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
O.S. Trees Pty Ltd, in its capacity as trustee for the O.S. Trees Trust, the respondent, employed the appellant as an arborist. The appellant was working as such on 11 April 2019 in Bathurst when another of the respondent’s employees cut down a large tree which fell on top of the appellant striking him in the head and left shoulder and crushing him. He suffered a fracture of his right femur and fractures of his transverse processes from T11 to L3.
Emergency services personnel attended the scene. The appellant was thereafter transferred by helicopter to Westmead Hospital where surgery was done to repair his femoral fracture by the insertion of a femoral nail. That procedure caused a rotational deformity of his right femur and resulted in his experiencing pain and restricted movement in his right hip.
The appellant’s solicitors arranged for orthopaedic surgeon Dr E Gehr to examine the appellant on 7 December 2020 so as to prepare a report of various matters relating to the appellant’s injury, including the degree of the appellant’s permanent impairment from his injury. In a report of 7 December 2020 addressed to the appellant’s solicitors, Dr Gehr advised the appellant’s solicitors that he assessed the appellant had 32% whole person impairment (WPI) from his injury.
The composition of Dr Gehr’s assessment is not entirely clear to the Appeal Panel. It is clear that it included 19% WPI for a healed femoral shaft fracture with 20 degrees of mal-rotation, 5% WPI for impairment of the thoracic spine, and 10% WPI for impairment of the lumbar spine. Dr Gehr also indicated that the appellant had a further 2% WPI for the effect that the appellant’s injury to either his lumbar or thoracic spine had on his activities of daily living (ADLs), and a further 2% WPI due to either scarring or the restricted range of movement of his right hip. Most likely, given how he set out within his report the computation of his assessment, the 2%WPI for ADLs related to the lumbar spine, rather than the thoracic spine, and the further 2%WPI for either the right hip or scarring related to the restricted range of motion of the right hip rather than scarring. Dr Gehr however, combined only one of those additional impairments of 2% WPI, and it is unclear which he included. Had he combined all components, the assessment would have been 33% WPI.
Be that as it may, on 10 December 2020 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $94,483.59 for 32% WPI from his injury. It enclosed a copy of Dr Gehr’s report of 7 December 2020 with their letters.
The respondent’s insurer then arranged for the appellant to be examined by orthopaedic and trauma surgeon Dr Graeme Doig on 25 January 2021. In a report of 1 February 2021 to the insurer, Dr Doig advised that he assessed the appellant had 8% WPI from his injury, comprising 6% WPI for the impairment of the lumbar spine and 2% WPI for impairment of the right hip.
On 17 February 2021 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it denied liability to pay him compensation under s 66 of the 1987 Act. It advised him that it disputed the degree of his permanent impairment was what he had claimed. It advised him that Dr Doig had assessed him to have 8% WPI which was not sufficient for him to be entitled to compensation for permanent impairment because s 66 of the 1987 Act required that his degree of permanent impairment be more than 10% to be entitled to compensation for permanent impairment.
On 5 May 2021 the appellant initiated proceedings in the Personal Injury Commission (the Commission) against the respondent seeking determination of his claim for compensation for permanent impairment.
On 10 June 2021 an amended referral was issued to the Medical Assessor to assess the medical dispute between the parties, which was described in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 11/04/2019
Body part/s referred: Right lower extremity (femur, knee), thoracic spine,
Lumbar Spine, Scarring (TEMSKI)
Method of assessment: Whole Person Impairment”
On 11 August 2021 the Medical Assessor issued a MAC in response to that referral in which he certified the appellant had 27% WPI resulting from his injury, comprising 22% WPI for the right lower extremity (which in turn consisted of 15% lower extremity impairment for restriction of internal rotation and abduction of the motion in his right hip and 47% lower extremity impairment for the femoral shaft fracture that united with 20 degrees of external rotation), 6% WPI for the lumbar spine and 0% WPI for each of the thoracic spine and scarring.
On 30 August 2021 the respondent’s solicitors wrote to the Registrar of the Commission seeking that the matter be referred back to the Medical Assessor, under s 329(1A) of the 1998 Act, for reconsideration. The respondent’s solicitors in their correspondence to the Registrar contended, in substance, that Table 17-2 of AMA 5 did not permit the Medical Assessor to combine the lower extremity impairment the appellant had due to 20 degrees of malrotation from the appellant’s femur shaft fracture, which the Medical Assessor assessed based on a diagnosis-based estimate, with the impairment the appellant had due to restricted range of motion of his right hip. The respondent’s solicitors submitted that it would be appropriate for the matter to be re-considered by the Medical Assessor “because an appeal would not be required to correct a simple oversight in combining assessments which should not have been so combined”.
The appellant’s solicitors wrote to the Commission on 8 September 2021 opposing the matter being referred back to the Medical Assessor for reconsideration. In substance, their reasons were that the Medical Assessed correctly assessed the appellant’s impairment and that there had been no “inadvertent” error. They submitted that Table 17-2 did not preclude the Medical Assessor combining impairments the appellant had from two separate body parts, namely the right femoral shaft and right hip. The appellant’s solicitors submitted that what the respondent’s solicitors contended was really that the MAC contained a demonstrable error or that the Medical Assessor used incorrect criteria in assessing the appellant’s impairment and that those supposed errors ought to be the subject of an appeal to a Medical Appeal Panel.
On 26 October 2021 a delegate of the President of the Commission decided to refer the matter to the Medical Assessor for reconsideration pursuant to s 329(1A) of the 1998 Act. The President’s delegate also decided that the documents to be provided to the Medical Assessor should include a copy of her decision, which at [30] read as follows:
“[T]he Medical Assessor has incorrectly combined a diagnosis-based assessment with an assessment from range of motion in the assessment of the right lower extremity. Namely, the Medical Assessor impermissibly combined impairment assessment of the right femoral shaft under diagnosis-based estimate assessment method with assessment of the right hip under range of motion method, before converting to whole person impairment, contrary to the clear terms of Table 17-2 of the Guides. Indeed, the Medical Assessor has not explained why he combined those impairment assessments to arrive at a total lower extremity impairment before converting to a whole person impairment of the right lower extremity and/or how this was permissible under the law.”
Further correspondence flowed between each of the parties and the Commission regarding the delegate’s decision. Ultimately the parties consented to the matter being referred back to the Medical Assessor subject to the decision of the delegate of 26 October 2021 not being part of the materials to be provided to the Medical Assessor. On 22 December 2021 the delegate issued a Direction, with the consent of the parties, rescinding her decision of
26 October 2021 and referring the matter back to the Medical Assessor for reconsideration pursuant to s 329(1A). The delegate expressly stipulated in her Direction that her decision of 26 October 2021 was not to be referred to the Medical Assessor.On 23 February 2022 the Medical Assessor issued a further MAC, which in accordance with s 329(2) of the 1998 Act, prevailed over the MAC of 11 August 2021. He certified in the MAC of 23 February 2022 that the appellant’s permanent impairment from his injury was 24%, comprising 19% WPI for the right lower extremity and 6% WPI for the lumbar spine. The reasons the Medical Assessor provided for his reconsideration of the appellant’s permanent impairment included the following:
“For the purposes of making this assessment, the impairment of the right hip and impairment of mal-rotation subsequent to the femoral fracture have been deemed separate impairments, rather than a single impairment, and thus I did not regard Table 17-2 as relevant. The intention of Table 17-2 is to ensure that injuries and their consequences are adequately assessed without duplication. I regard the impairment due to mal-rotation as consequent to the injury. I regard the restriction in hip range of motion as a consequence of surgical treatment of the fracture. For this reason, I combined the two impairments and did not consider that was a contraindication according to the Guides.
Despite the above, I note the words from the Dispute Support Officer at paragraph 30 that states ‘In view of the clear words of the Guides which have not been modified by the Guidelines, the Medical Assessor has incorrectly combined a diagnosis based
assessment with an assessment from range of motion in the assessment of the right lower extremity’. In accordance with this interpretation, I have issued an updated Certificate.”
It is apparent from that that the delegate’s decision of 26 October 2021 was forwarded to the Medical Assessor and that he did have regard to it when reconsidering his assessment certified in the MAC of 11 August 2021. Thereafter, further correspondence ensued between each of the parties and the Commission relating to the matter in which there were further requests for reconsideration and which resulted in the matter being referred back to the Medical Assessor under s 329(1) on two further occasions. The Medical Assessor issued a further MAC on 11 July 2022 with respect to earlier of those referrals and issued a MAC on 27 July 2022 with respect to the last referral back to him. In accordance with s 329(2), the MAC of 27 July 2022 is the MAC that prevails and has force. It is this MAC that is the subject of the current appeal.
In that MAC, the Medical Assessor certified that the appellant’s degree of permanent impairment from his injury was 24% WPI consisting of 19% WPI for the right lower extremity and 6% WPI for the lumbar spine. The Medical Assessor repeated within the body of the MAC the first paragraph of what the Appeal Panel has extracted from the MAC of
22 February 2022 at [20] above, with the exception of the last sentence. The Medical Assessor also included this sentence, “I wish to clarify that I did not consider the decision dated 26 October 2021 before proceeding with the Reconsideration”.As noted above, the appellant appeals against the MAC of 22 July 2022.
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 WorkCover Medical Assessment Guidelines 2006.
Further examination
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because, firstly, neither party challenged the Medical Assessor’s findings from his examination of the appellant. Secondly, the Medical Assessor’s findings from his examination of the appellant are not germane to the ground of appeal the appellant has agitated, which in substance is whether Table 17-2 applies where a worker has impairments in different body parts in the lower extremity. Lastly, the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.
Fresh evidence
The Appeal Panel also considered whether it should receive into evidence several documents which were annexed to the appellant’s Appeal. The appellant only explicitly sought that one of those documents, namely an email from the Commission to the Medical Assessor dated 26 July 2022 which appears within Item 4 of Annexure V to the appellant’s submissions, but it is implicit from the submissions the appellant made with respect to the substantive issue he raised that he also seeks the Appeal Panel receive into evidence annexures D through to Annexure U. The only submission the appellant made regarding whether the Appeal Panel should receive further evidence related to the email of
26 July 2022. The appellant said that document should be received into evidence because it had not been made available to the appellant until after the Medical Assessor issued the MAC of 27 July 2022. The appellant submitted that the evidence is relevant to the Appeal as it contained a Direction from the Commission to the Medical Assessor with respect to amending the MAC the Medical Assessor issued on 11 July 2022.The respondent did not make any submission in response to that.
It is implicit from the submissions the appellant made with respect to the substantive issue of his appeal that he relies on annexures D to U in that he refers to them to provide context to the MAC that was ultimately issued on 27 July 2022.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The Medical Assessor’s assessment of the appellant’s permanent impairment from his injury commenced on 9 July 2021, when he examined the appellant. There were no further examinations conducted. The documents that the appellant seeks to rely on in support of his Appeal all post date that examination and could not reasonably have been obtained by the appellant before the medical assessment commenced. The documents provide context to the MAC of 27 July 2022, which is the subject of the Appeal, and because of that the Appeal Panel has decided to receive all those documents into evidence.
If it were the case that the date upon which the Medical Assessor made his medical assessment was the date on which he issued the MAC of 27 July 2022, in which case all the documents excepting the email of 26 July 2022 from the Commission to the Medical Assessor, would not fall within the description of documents specified within s 328(3), because they were available to the appellant prior to the medical assessment of
27 July 2022, the Appeal Panel considers that, by combination of ss 324(1)(b) and 324(4), it would have the power to call for those documents. In other words, if it is the case that
s 328(3) could not be engaged by the appellant so as to rely on those documents, the Appeal Panel considers it has the power to call for and consider that material under s 324(1)(b) because the Appeal Panel considers the information within the documents is germane to the appeal and it is desirable for the Appeal Panel to have them.
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 and also the fresh evidence into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
Whilst the MAC that is being reviewed is that which issued on 27 July 2022, which supersedes all earlier MACs, as the Appeal Panel has said above the assessment of the appellant’s permanent impairment commenced with the Medical Assessor’s examination of the appellant on 9 July 2021. The Medical Assessor’s findings from that examination and the history the Medical Assessor obtained at the time of examination are recorded in the initial MAC of 11 August 2021. It is necessary therefore, in order to comprehend the MAC of
27 July 2022, to set out some parts of that MAC. Further, the Appeal Panel notes that the appeal relates only to the Medical Assessor’s assessment of the appellant’s impairment of his left lower extremity. It is therefore unnecessary to detail any content of the MAC relating to his assessment of the appellant’s impairment of the other body parts and systems that were referred for assessment.The Medical Assessor noted in the MAC of 11 August 2021 that the appellant experiences pain over his lateral hip at the insertion point of the femoral nail. The Medical Assessor recorded that he found the appellant demonstrated 20 degrees or rotational deformity through the right femoral and he noted that he agreed “with the principal finding” of Dr Gehr “that the femoral fracture had been fixed in 20 degrees of external rotation”.
The Medical Assessor recorded that from his examination of the appellant’s hips he found the appellant had the following range of motion:
Movement
Right
Left
Flexion
110
120
Extension
10
20
Internal rotation
5
20
External rotation
40
40
Abduction
30
20
Adduction
30
30
As mentioned earlier, the Medical Assessor in the MAC of 11 August 2021 certified the appellant had 22% WPI relating to his right lower extremity consisting of 15% lower extremity impairment due to the restriction of internal rotation and abduction of his right hip and 47% lower extremity impairment for the fixed 20° of external rotation of the femur following his femoral shaft fracture, which combined to give 55% WPI lower extremity impairment and which in turn translated to 22% WPI.
In the MAC of 27 July 2022, the Medical Assessor provided the following explanation at section 6.b) for his assessment that the appellant had 18% WPI from the injury to the appellant’s right lower extremity:
“With respect to the principal injury which is the femoral shaft fracture, it is united with 20° of external rotation. According to AMA-5, page 546, Table 17-33 this attracts 47% lower extremity impairment. With restricted range of motion in the hip, the 15% lower extremity impairment is assessed for restriction of internal and external rotation, according to AMA- 5, page 537.”
The Medical Assessor also explained at section 6.a) that:
“The Commission has referred back my decision in the MAC of 25/10/2021 on the basis that I incorrectly combined incompatible assessments according to Table 17-2, page 526 of AMA-5. Specifically, this relates to an assessment made with respect to the femoral shaft fracture according to AMA-5, page 546, Table 17-33 with persistent femoral shaft mal-rotation subsequently being combined with assessments made according to AMA-5, page 537, Table 17-9 range of motion. Please note these are 2 separate impairments which were detected and independantly [sic] assessed in the right lower extremity.
AMA-5, page 526, Table 17-2 places an ‘x’ in the box intersecting ‘diagnosis based
estimates and range of motion/ankylosis . Cross referencing to the legend at the base of the Table, and ‘x’ is defined as ‘do not use these methods together for evaluating a single impairment. According to AMA -5, page 3, Table 1.1, I note the definition of impairment as ‘a loss, a loss of use, a derangement of any body part, organ, organ system or organ function.’
For the purposes of making this assessment, the impairment of the right hip and
impairment of mal-rotation subsequent to the femoral fracture have been deemed
separate impairments, rather than a single impairment, and thus I did not regard Table 17- 2 as relevant. The intention of Table 17-2 is to ensure that injuries and their consequences are adequately assessed without duplication. I regard the impairment due to mal-rotation as consequent to the injury. I regard the restriction in hip range of motion as a consequence of surgical treatment of the fracture.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In large part the appellant’s submissions dealt, at length, with the correspondence that passed between the parties’ respective lawyers and the Commission and the events that occurred between the MAC of 11 August 2021 being issued and the MAC of 27 July 2022 being issued.
As the Appeal Panel already has indicated, the appellant raised a single issue in his appeal and that is whether the Medical Assessor, insofar as he applied Table 17-2 of AMA 5 and did not combine his rating of 47% lower extremity impairment for the malrotation of the femoral shaft with his rating of 15% lower extremity impairment for restricted range of motion of the right hip, the Medical Assessor based his assessment on incorrect criteria and by doing so made an error such that the MAC contains a demonstrable error. The appellant submitted that Table 17-2 did not preclude the combination of two different methods of assessment, such as diagnosis-based estimates and restricted range of motion, when assessing different body parts within the lower extremity. The appellant submitted that what Table 17-2 precluded was combining the ratings from specified methods of assessment in the assessment of the impairment of a particular body part within the lower extremity. In other words, and this is the Appeal Panel providing an example so as to illuminate the appellant’s submissions, Table 17-2 would preclude combining impairments of the ankle that had assessed by reference to different and specified methods, and would do likewise for each and all of the several anatomical body parts comprising the lower extremity, but Table 17-2 would not preclude combining the impairment of the ankle with impairment of other different body parts, such as the hip, irrespective of what method had been used to assess the impairment of that different body part.
The appellant further submitted the Medical Assessor’s assessment that he had 18% WPI relating to his right lower extremity was inconsistent with the explanation the Medical Assessor provided for his assessment.
The appellant submitted that the MAC of 11 August 2021 “should be confirmed as true and correct”.
In reply, the respondent submitted that Table 17-2 of AMA 5 prevented the Medical Assessor from combining the lower extremity impairment he found the appellant had for mal-rotation of the femoral shaft, which was assessed by reference to a diagnosis-based estimate, with the appellant’s lower extremity impairment relating to his right hip, which was assessed by reference to the appellant’s restricted range of motion of his right hip. The respondent submitted that a Medical Assessor cannot disregard Table 17-2 because they are evaluating different anatomical regions of the lower extremity, and the respondent referred to Box 17-1 of AMA5, which the Appeal Panel observes provides a “step by step” calculation for an assessment of impairment of a hypothetical case described in example 17-20 of AMA5. The respondent submitted that in that example different parts of the right lower extremity were affected and different methods were used to assess the impairment of each part, namely atrophy, diagnosis-based estimate and peripheral nervous system. The Appeal Panel observes that the method of atrophy was used to evaluate impairments relating to the thigh and calf described in the hypothetical case, that diagnosis-based estimate was used to evaluate impairment of the knee and the peripheral nervous system method was used to evaluate impairment due to a common perineal nerve injury that had motor and sensory residuals. Box 17 revealed that the assessment of the impairment in the example combined the impairment relating to the knee and the impairment of the common perineal nerve injury but did not combine the impairment of the thigh and calf.
The respondent submitted that the Medical Assessor’s assessment in the MAC of
27 July 2022 was correct and the Medical Assessor was correct to apply Table 17-2 and not combine what he assessed the appellant’s impairment was due to the femoral shaft fracture with what he assessed the appellant’s the impairment was to his restricted range of movement of his right hip.
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.
In accordance with Chapter 3 of the Guidelines the assessment of a worker’s permanent impairment from an injury to a lower extremity is done in accordance with the criteria set out in Chapter 17 of AMA 5, subject to certain modifications set out in Chapter 3 which are not relevant to the case at hand. Relevant to the current appeal the criteria include the following:
The evaluator’s first step is to establish the diagnosis(es) and whether or not the individual has reached MMI. The next step is to identify each part of the lower extremity that might possibly warrant an impairment rating (pelvis, hip, thigh, etc, down to the toes). Figure 17-10 lists potential methods for each lower extremity part. The evaluator determines whether ROM impairment or other regional impairments are present for each relevant part and records the impairment values in the appropriate locations on the worksheet. The selection of the most specific method(s) and the appropriate combination are later considerations.
After all potentially impairing conditions have been identified and the correct ratings recorded, the evaluator should select the clinically most appropriate (ie, most specific) method(s) and record the estimated impairment for each. The cross-usage chart (Table 17-2) indicates which methods and resulting impairment ratings may be combined. It is the responsibility of the evaluating physician to explain in writing why a particular method(s) to assign the impairment rating was chosen. When uncertain about which method to choose, the evaluator should calculate the impairment using different alternatives and choose the method or combination of methods that gives the most clinically accurate impairment rating.”
Table 17-2 is titled “Guide to the appropriate combination of evaluation methods”. It is comprised of 144 cells. In each of the 12 cells along the top horizontal axis and in each of the 12 cells along the initial vertical axis appears one of the 12 methods that potentially can be utilised to assess a worker’s impairment of the lower extremity. An assessor, through the indication of an X within a particular cell of the body of the table or by a particular cell being left blank, is instructed whether impairment ratings derived from the various methods can be combined.
The issue that arises in this appeal is whether the Table is only engaged when assessing impairment within a particular anatomical part of the lower extremity or whether it applies more broadly such that an x within a box prevents the combination of the impairment of any body part that has been assessed by the methods appearing in the respective cells within first horizontal row and first vertical column. The Appeal Panel considers it is the former.
Paraphrasing what the Appeal Panel has extracted from AMA 5 at [48], a Medical Assessor’s task is firstly to establish and diagnose the anatomical parts of the lower extremity that have been affected by an injury and that impair the worker. A Medical Assessor must then consider the methods that potentially can be utilised to evaluate the impairment the worker has for each part. A single method only may be available or several methods may be. An injury to a particular body part may manifest in different types of impairments in that particular body part, or it may result in a single impairment. A Medical Assessor must, using clinical judgment of course, determine the most appropriate method or methods by which to assess a worker’s impairment of the body part.
On the Appeal Panel’s reading of what it has extracted from AMA 5, is that at this point that a Medical Assessor needs to consider Table 17-12 to establish what impairment ratings can be combined. It is engaged, in the Appeal Panel’s view to determine whether, if a worker’s injury has manifested in more than one type of impairment within a particular part of the worker’s lower extremity, those impairments can be combined when assessing the worker’s overall impairment of his or her lower extremity. Table 17-2 is not engaged where, due to an injury a worker, more than one part of the worker’s lower extremity is affected and impaired by the injury.
If it were otherwise, it could lead to the perverse circumstance where for example, a worker suffers injuries in a particular incident to distant and unconnected parts of his or her lower extremity, such as the foot and hip, and the worker suffers impairment in each of those unconnected anatomical parts, but the worker’s true impairment of his or her lower extremity could not be assessed. That would be caused if the most appropriate clinical method by which the impairment of a worker’s foot is to be assessed is diagnosis-based estimate and the method by which the worker’s impairment of the appellant is to be assessed is by reference to the restricted range of motion. In the Appeal Panel’s view the instructions within Chapter 17 of AMA 5 that the Appeal Panel has extracted above cannot be interpreted so as to cause such a result. The hypothetical circumstance provided in example 17-20 of AMA 5, as explained by Box 17-1, cannot, in the Appeal Panel’s view, be interpreted contrary to what is required by the instructions within Chapter 17 of AMA 5 that the Appeal Panel has extracted above.
The appellant’s right hip and femoral shaft are separate parts of his anatomy and he has different impairments to each part as a consequence of his injury. His right femoral shaft is now mal-rotated to the order of 20 degrees. That would result in his right leg appearing in “Charlie Chaplin” fashion. A mal-rotation of that order would likely cause him to walk with a duck like waddle. His right hip has restricted movement. Again, they are separate impairments. If the appellant did not have one or the other of those impairments, his overall impairment of his right lower extremity would not be as great. That is say, the two distinct impairments caused by the one injury combine to increase the appellant’s impairment of his right lower extremity.
The Appeal Panel is satisfied that the Medical Assessor did base his assessment, as certified in the MAC of 22 July 2022, on incorrect criteria by applying Table 17-2 and the Appeal Panel is also satisfied that the MAC contains a demonstrable error as a consequence of the Medical Assessor doing so.
The Appeal Panel finds that the appellant’s appeal based on s 327(3)(b) of the 1998 Act is not made out. There is no additional relevant information that has been put before the Appeal Panel that would lead the Appeal Panel to a different conclusion. For these reasons, the Appeal Panel has determined that the MAC issued on 27 July 2022 should be revoked, and a new Medical Assessment Certificate should be issued. The new certificate is attached to this statement of reasons.
The Appeal Panel notes that neither party raised an issue about the Medical Assessor’s evaluation of the appellant’s impairment of his right hip based on the findings the Medical Assessor made with respect to the range of motion of the appellant’s right hip, which findings, as said before, neither party disputed. The Appeal Panel considers that the Medical Assessor’s ratings based on those findings were wrong. The Appeal Panel is unable to correct such an error.[1] The Appeal Panel, as an expert panel and in its re-assessment of the medical dispute, does not however want to be seen to be countenancing that other error.
[1] Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]-[35].
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