Leota v General Mills Manufacturing Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Leota v General Mills Manufacturing Australia Pty Ltd [2023] NSWPICMP 607
APPELLANT:	Christina Leota
RESPONDENT:	General Mills Manufacturing Australia Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	23 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Where appellant’s injury was bilateral cubital and carpal syndromes; where Medical Assessor’s (MA) assessment was based on abnormal range of motion; whether MA applied correct criteria to assess impairment; Appeal Panel held appellant’s injury was a peripheral nerve injury and paragraph 2.9 of Guidelines required assessment of impairment to be done by reference to section 16.5 of AMA5; MA applied incorrect criteria; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 May 2023 Christina Leota, the appellant, 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 14 April 2023.
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):
· 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 (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

The appellant commenced employment with General Mills Manufacturing Australia Pty Ltd, the respondent, in 2000 working as a machine operator. Her employment required her to use her hands constantly. She had to grip, pull, push and twist machines repetitively. In September 2019 she commenced experiencing tingling and numbness in her hands. Both parties accept the appellant suffered a work injury deemed to have occurred on
23 September 2019.
The appellant’s solicitors organised for the appellant to be examined by shoulder and knee surgeon Dr Gavin Soo on 21 February 2022. Dr Soo advised the appellant’s solicitors in a report of that date that he diagnosed the appellant had bilateral recurrent carpal tunnel syndrome in her hands and bilateral cubital tunnel syndrome in her elbows. Dr Soo advised that he assessed the appellant had 33% whole person impairment (WPI) from her injury. He indicated that in making that assessment he relied on the criteria set out in paragraphs 2.9 and 2.10 of the Guidelines, which incorporate Tables 16-10, 16-11 and 16-5 AMA5.
Following receipt of that report from Dr Soo, the appellant’s solicitors wrote to the respondent’s insurer on 9 March 2022 advising it that the appellant claimed compensation from it in the amount of $99,450 for 33% WPI from her injury. Her solicitor’s provided the insurer with a copy of Dr Soo’s report of 21 February 2023 to support her claim.
The insurer thereupon organised for orthopaedic surgeon Dr Chris Harrington to examine the appellant on 20 June 2022. In a report dated 28 June 2022 Dr Harington advised the insurer that the history he obtained was consistent with the appellant having carpal tunnel syndrome with the left being worse than the right. He also advised that the appellant “has persistence left carpal tunnel ++/- left cubital tunnel” symptomatically. He advised that he assessed the appellant had 2% WPI due to the limitation of extension and flexion in her left wrist. He indicated that he utilised the criteria set out in Figure 16-28 of AMA5 to make that assessment.
In a supplementary report Dr Harrington provided the respondent’s solicitors dated
19 July 2022 he advised that he also assessed the appellant had 23% upper extremity impairment, in accordance with the criteria set out in Table 16-15 of the AMA5, relating to her left elbow and wrist due to sensory and motor deficits. He advised that he also assessed the appellant had 1% WPI for a scar that was tender. He indicated that these assessments, when combined with the assessment he previously made that the appellant had 2% WPI due to lack of flexion and extension of her left wrist, amounted to 17% WPI. He advised that he assessed the appellant had no impairment relating to her right elbow or right wrist.
In an undated letter the respondent’s solicitors sent to the appellant’s solicitors, the respondent’s solicitors advised that their client offered to pay the appellant compensation of $43,000 for 17% WPI, as assessed by Dr Harrington in his reports of 30 June and
19 July 2022. It is apparent that that offer was unacceptable to the appellant since the appellant’s solicitors filed with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 8 February 2023 seeking determination of the appellant’s claim for compensation.
A delegate of the president of the Commission referred the medical dispute between the parties to the Medical Assessor. That medical dispute was defined as follows:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM 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: 23 September 2019 - deemed
Body part/s referred: Right upper extremity (elbow, wrist)
Left upper extremity (elbow, wrist)
Method of assessment: Whole person impairment”
The Medical Assessor examined the appellant on 17 March 2023.
The Medical Assessor tabulated in the MAC the movement the appellant had of her elbows, wrists and left thumb, as found by him from his examination of the appellant. He also recorded that he found appellant had global sensory change in “the hand” to light touch which extended to the proximal two-thirds of her forearm. He recorded that he did not observe the appellant had abnormal colour or temperature difference or abnormal sweating.
The Medical Assessor provided the following details of his calculations of his assessment of the appellant’s permanent impairment:
“Elbow range of motion is assessed according to AMA 5 page 472, Table 16.34 and 474, Table 16.37. Impairment for loss of extension was not, however assessed, given that it was symmetrical and not related to the elbow ‘injury’ (cubital tunnel syndrome). As such, her restricted elbow range of motion is constitutional.
Wrist range of motion was assessed according to AMA 5 page 467 16.28, 469 16.31. 3% upper extremity impairment was assessed for restricted range of motion in the left wrist and 5% upper extremity impairment was assessed for restricted range of motion of the right wrist.
Restricted range of motion in the left thumb is assessed according to AMA 5 page 456 Table 16.1, 457 16.15, 459 16.8a and 16.8b and 460 16.9. A 7% thumb impairment was assessed, which converts via AMA 5 page 438 Table 16.1 to 3% hand impairment. This, according to AMA 5 page 439 Table 16.2 converts to 3% upper extremity impairment.
In the left hand there is a 6% upper extremity impairment for restricted range of motion at the wrist and thumb. In the right wrist there is a 5% upper extremity impairment for restricted range of motion in the wrist.
With respect to peripheral nervous system, according to AMA 5 page 482 Table 16.0,
sensory deficit in the ulnar nerve bilaterally is assessed as Grade IV (25%). According to AMA 5 page 492 Table 16.5, nerve above mid-forearm attracts a maximum of 7% upper extremity impairment. 25% of 7% rounded gives 2% upper extremity impairment for sensory loss in the ulnar nerve distribution.
Ms Leota did not report any ongoing sensory disturbance in the distribution of the median nerve and hence, impairment for this was not assessed.
Weakness in the ulnar nerves was not detected. There was Grade IV weakness of thumb opposition. According to AMA 5 page 484 Table 16.11, this is assessed as 25%. According to AMA 5 page 492 Table 16.5, motor deficit of the median nerve below mid-forearm attracts a maximum of 10% upper extremity impairment. 25% of 10% is 3% upper extremity impairment, rounded for motor deficit in the median nerve.
Hence, for the left upper extremity there is a 3% upper extremity impairment for median
nerve weakness and 2% upper extremity impairment for ulnar nerve sensory loss. These combined, gives a 5% upper extremity impairment, which combined with 6% upper extremity impairment for restricted range of motion gives an 11% upper extremity impairment for the left upper extremity. This converts by AMA 5 page 439 Table 16.3 to 7% whole person impairment.
For the right upper extremity, 3% upper extremity impairment for restricted range of motion combines with 2% for ulnar nerve sensory loss, giving 5% upper extremity impairment which converts via AMA 5 page 439 Table 16.3 to 3% whole person impairment.”
The Appeal Panel notes that notwithstanding the Medical Assessor did not record finding the appellant had weakness in her ulnar nerve from his examination of her and notwithstanding that in his calculations of the appellant’s permanent impairment he said he did not detect weakness in the appellant’s ulnar nerves, the Medical Assessor, when comparing his assessment with the assessment Dr Soo had made of the appellant’s permanent impairment, said he agreed with Dr Soo assessing the appellant had grade IV deficit for the ulnar nerve motor deficit in the left upper extremity. On its face, that statement of the Medical Assessor is contradictory.
The Medical Assessor certified he assessed the appellant had 10% WPI. That did not incorporate any rating for deficit of the ulnar nerve.

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 appellant should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC contained a demonstrable error and the Appeal Panel would accordingly need to correct that error. To do that, the Appeal Panel could not rely on the findings the Medical Assessor made from his examination, and hence it was necessary for the Appeal Panel to examine the appellant so as to obtain the necessary clinical data to correct the error. The Appeal Panel appointed Medical Assessor Margaret Gibson, one of its members, to undertake that examination. On 10 November 2023 she provided her report to the Appeal Panel on her examination. Her report is set out below in Findings and Reasons.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions.
The Appeal Panel notes that cls 9, 16, 29, 38, 39 and 40 of Procedural Direction PIC7, when read together, require the parties to an appeal to lodge with their respective application for appeal or reply written submissions in support of their appeal or reply. The appellant did not abide that requirement of PIC7, but rather provided written submissions with her application for appeal that addressed only some of the grounds on which she relied. With respect to other grounds on which she relied the appellant asserted that she would provide additional submissions, which her counsel subsequently did on 31 May 2023. That was 19 days after she had lodged her appeal. Further neither the appellant nor her counsel addressed why it would be in the interest of justice for the Appeal Panel to consider her further written submissions.
In summary, the appellant submitted the Medical Assessor provided no findings from his examination to support the conclusion he reached that he did not detect weakness in the ulnar nerves.
The appellant submitted the Medical Assessor made an inconsistent finding by stating that he did not detect weakness in her ulnar nerves but also stating that he assessed motor deficit for the ulnar nerve when comparing his assessment with the assessment Dr Soo made.
The appellant submitted that the Medical Assessor misapplied the guidelines because paragraph 2.9 of the Guidelines required the assessment of her impairment to be done in accordance with the s 16.5 of AMA5, rather than s 16.4 and this was because her injury was carpal tunnel syndrome and cubital tunnel syndrome which is a peripheral nerve injury. The appellant submitted that the medical assessor did not explain why paragraph 2.9 of the Guidelines did not apply with respect to the assessment of her impairment due to carpal tunnel and cubital tunnel syndromes.
In her application for appeal the appellant specified several grounds of appeal upon which she subsequently abandon. Those were that the Medical Assessor failed to find work related cubital tunnel syndrome, that the Medical Assessor found that the restricted range of the movement of her elbow was constitutional, that the Medical Assessor failed to find that she had an impairment due to left wrist sensory deficit, and that the Medical Assessor made findings beyond the scope of the medical dispute referred for assessment.
In reply, the respondent submitted that the discrepancy in the MAC regarding the Medical Assessor recording finding no weakness in the appellant’s ulnar nerves but also recording, when comparing his assessment with the assessment of Dr Soo, a motor deficit for ulnar nerve is not a demonstrable error because on a fair reading of the MAC it is clear that the medical assessor did not find the appellant had rateable impairment for motor deficit of the ulnar nerve.
The respondent submitted that the Medical Assessor did not misapply the Guidelines to assess the appellant’s permanent impairment because the Medical Assessor identified that the appellant’s predominate problem resulted from wrist pain and the Medical Assessor formed the “uncontroversial view” that the appellant did not have a nerve injury. The respondent submitted that the appellant failed to demonstrate an error in the diagnosis the medical assessor made, which was wrist pain.
The respondent submitted that the Medical Assessor erred by assessing a permanent impairment with respect to the appellant’s left thumb because the matter referred to the Medical Assessor to assess related to the appellant’s elbow and wrist, and not the thumb.
The respondent also submitted that the appeal had not been properly made because a senior paralegal in the employ of the appellant’s solicitors may not be a legal practitioner and was consequently incapable “providing the certification pursuant to s 327(8)”.

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.
The Appeal Panel shall deal firstly with the submission the respondent made regarding the appeal not being properly made because the certification within the application form may have been signed by a senior paralegal rather than a legal practitioner. By virtue of s 327(8) of the 1998 Act a law practice is prohibited from providing legal services in connection with appeal against a MAC unless a legal practitioner responsible for the provision of the legal services reasonably believes on the basis of provable facts and a reasonable arguable view of the law that the appeal has reasonable prospects of success.
Ivica Covic signed the certification in the appellant’s application form that there were reasonable grounds for believing on the basis provable facts and reasonable arguable view of the law that the appeal had reasonable prospects of success. In an email from Ivica Covic to the respondent’s solicitors on 31 May 2023 Ivica Covic confirmed he or she was not a legal practitioner. The Appeal Panel observes that the appellant’s submissions were drafted by her counsel S G Moffet. They were signed by him. Further, Ivica Covic indicated in his or her email to the respondent’s solicitor that he or she was employed in the appellant’s office and under the supervision of a legal practitioner Mr Kevin Sawers, who subsequently provided the certification that appeal had reasonable prospects of success.
It is the Appeal Panel’s view that, given what is set out in the preceding paragraph, the requirement of s 327(8) of the 1998 Act, has been met in this matter. It seems to the Appeal Panel that, given the submissions the appellant’s counsel made in support of the appellant’s appeal, the appellant’s solicitors and counsel believed, on reasonable grounds, that the appellant’s appeal had reasonable prospects of success.
Turning now to the substance of the appeal, the Appeal Panel accepts the appellant’s submission that the Medical Assessor made the assessment of the appellant’s permanent impairment based on incorrect criteria. This is because the appellant’s injury was bilateral cubital tunnel syndrome and bilateral carpal tunnel syndrome. Those syndromes describe an injury of the peripheral nerves in the upper extremities. The appellant’s upper extremity impairment results solely as a consequence of that injury.
Paragraphs 2.9 and 2.10 of the Guidelines read as follows:
“2.9 If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments.
For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).
The assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation.
2.10 When applying AMA5 tables 16-10 (p 482) and 16-11 (pp 482 and 484) the examiner must use clinical judgement to estimate the appropriate percentage within the range of values shown for each severity grade. The maximum value is not applied automatically.”
The Medical Assessor assessed the appellant’s permanent impairment by reference to the criteria set out in s 16.4 of AMA5, that is based on the restricted range of motion of the appellant’s elbows, wrists and thumbs. That was contrary to the instruction within paragraph 2.9 of the Guidelines, given the appellant’s injury was an injury to her peripheral nerves and her impairment solely the consequence of that injury. The manner in which the medical assessor went about the assessment of the appellant’s impairment was accordingly wrong. Paragraph 2.9 of the Guidelines required the assessment be done by reference to the criteria in s 16.5 of AMA5 and not by reference to the criteria within s 16.4 of AMA5.

Given that the Medical Assessor applied the incorrect criteria to assess the appellant’s permanent impairment, which also meant the MAC contains such a demonstrable error, the Appeal Panel determined that the appellant should be re-examined so that the Appeal Panel could obtain the necessary clinical data to correct that error and issue a MAC with respect to matters concerned. As said above, Medical Assessor Margaret Gibson conducted that examination. She provided the appeal panel with the following report:

“APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W879/23
Applicant worker:	Christina Leota
Respondent:	General Mills Manufacturing Australia Pty Limited
Date of Report:	29 September 2023

Examination Conducted By:	Medical Assessor Dr Margaret Gibson
Date of Examination:	29 September 2023

1.   The workers medical history, where it differs from previous records
I have reviewed the history contained in the Medical Assessment Certificate.
Ms Leota arrived at the assessment with her son who had driven her in today from their home in Lethbridge Park, the trip taking approximately 40 minutes. He remained in the waiting room while the assessment was conducted.
Ms Leota had worked with General Mills for 23 years. She said she had requested time off from work on 14 August 2023, which was granted. On 22 August 2023 she was contacted by her employer, who told her that she was not to return to the workplace. She said no reason was given. She said she was very distressed following this call.
Over the period of her employment with General Mills, she had worked with heavy industrial machinery. She had worked on a packing line where she was packing up tortillas and mixes. She had worked on another line where she was using an industrial mixer. She said this process at times, when there was an issue at the flour mill, involved lifting of 25kg bags of flour, generally five bags at a session and emptying these into a hopper. She said she would be cooking in the vicinity of 21-38 batches of tortilla each evening. On another line, she would be changing a press belt, which could be anywhere from 1.5 to 20 metres long. She said if the oven was blocked she had to scrape it out using a metal bar.
Ms Leota said the subject injury had occurred when she was working on a specific area of the factory where tortillas, which were judged unfit for sale were ground into breadcrumbs in a large tub weighing anywhere from 30-50kg. She said she would use a scoop to shovel the breadcrumbs into these tubs. She said on the evening of the injury, she had been working in this capacity for the entire evening, so about 8 hours.
She said both of her hands became very sore and her left hand had locked up and became excruciating to move. Nevertheless, she attended work the following day and reported the injury.
She was referred to the company doctor at a nearby medical practice. There was subsequently referral for nerve conduction studies.
She had about six months of physiotherapy treatment prior to visiting a hand surgeon, Dr Yee. He organised for a steroid injection into both her hands.
In February 2014 she underwent left carpal tunnel release. She said a few weeks after that she felt as if something was wrong with the hand. In particular, the lateral two fingers of the left hand felt numb and there was also numbness extending up towards her left elbow. There was also persisting dysesthesia in the tips of her index finger and thumb. She asked Dr Yee about this and was advised that it might be related to the surgery and to monitor it and further review would occur if the symptoms didn’t settle. She said the hand therapist at the practice had performed sensory testing.
In June 2014, she underwent carpal tunnel decompression of the right wrist.
2.   Additional history since the original Medical Assessment Certificate was performed
Ms Leota currently wears splints on both her wrists. She said she was especially conscious of doing so when she is out in public, as she is worried about falling onto her hands and injuring them further.
She takes duloxetine tablets at night. She was previously using diazepam but not now. She applies some form of compounded cream but this only provides relief for 1-2 hours.
She visits a physiotherapist on a fortnightly basis.
Currently, she described her symptoms as including right hand swelling, right wrist discomfort, a burning sensation involving the whole palmar surface of the hand and extending to the right ulnar side of the elbow and sometimes over the antero-medial forearm. She rated the pain level at 6/10 severity. There is pain over the thumb and first two fingers of the right hand and a numb feeling over the ulnar aspect of the right hand.
She said her left hand is "shocking" and the pain "excruciating." She rated it 12/10 severity. There was severe burning sensation over the entire palmar surface and severe pain extending over the entire left forearm.
As a consequence of these symptoms, she finds she can’t drive a car for more than 15 minutes. She can no longer participate in any sporting activities with her children. She said she has significant issues with showering and general hygiene. She has problems dealing with buttons and zippers. She has difficulty chopping and preparing food. She said she can’t hang washing or do any vacuuming. She can’t clean the bathrooms.
She lives with her husband and four children aged 29, 25, 18 and 16 years. The eldest two work. They all help her out at home.
3.   Findings on clinical examination
Ms Leota had a stocky build. She wore Velcro supports on both wrists which were removed for the purposes of the examination.
On examination both elbows there was no deformity, swelling or scarring. There was tenderness over the medial and lateral epicondyles bilaterally. Tinel's sign was positive at both elbows.
Sensation was assessed using light touch, monofilament and two point discrimination.
Right upper limb
There was no reproducible sensory loss in a median distribution over hand.
Paraesthesia in an ulnar distribution over forearm and hand.
Left upper limb

There was no reproducible sensory loss in a median distribution over hand.
Paraesthesia in an ulnar distribution over forearm and hand.

Motor
There was normal upper limb power, apart from the hands. There was giving way weakness on testing of both hands, but on repetition the following was noted:
Right hand
Grade 5 median nerve power
Grade 4 ulnar nerve power
Left hand
Grade 5 median nerve power
Grade 4 ulnar nerve power
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations were provided.
Summary
Ms Leota was a long-term employee of General Mills, working in an industrial process line in food production. She described performing a repetitive task over an 8-hour shift and developing pain and neurological symptoms in her left hand and forearm. She was diagnosed with bilateral carpal tunnel syndrome and subsequently underwent carpal tunnel releases. Following the surgery, there was onset of left-sided and then right-sided ulnar sensory symptoms.
Impairment
Workcover Guides state that “2.9 If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments. For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).”
Peripheral nervous system impairment
Sensory deficit in the ulnar nerve bilaterally is assessed as Grade IV (25%) in reference to Table 16.10.
In reference to AMA 5 page 492 Table 16.15, nerve above mid-forearm attracts a maximum of 7% upper extremity impairment.
25% of 7% rounded gives 2% upper extremity impairment.
Motor deficit in the ulnar nerve above mid-forearm bilaterally is assessed at Grade IV (1- 25%). The Workcover Guides state that “2.10 When applying AMA5 tables 16-10 (p 482) and 16-11 (pp 482 and 484) the examiner must use clinical judgement to estimate the appropriate percentage within the range of values shown for each severity grade. The maximum value is not applied automatically.”
In reference to AMA 5 page 492 Table 16.15, ulnar nerve above mid-forearm attracts a maximum of 46% upper extremity impairment. Based on my assessment, there was mild weakness which I would rate at 15%.
15% of 46% gives 6.9% which rounded gives 7% upper extremity impairment.
Hence, for the left upper extremity there is a 7% upper extremity impairment for ulnar nerve weakness and 2% upper extremity impairment for ulnar nerve sensory loss. These combined, gives a 9% upper extremity impairment.
Hence, for the right upper extremity there is a 7% upper extremity impairment for ulnar nerve weakness and 2% upper extremity impairment for ulnar nerve sensory loss. These combined, gives a 9% upper extremity impairment.

The Appeal Panel accepts and adopts the findings of Medical Assessor Gibson. The Appeal Panel also confirmed the upper extremity impairment Medical Assessor Gibson found the appellant had based on her findings from her examination is correct, that is 9% upper extremity impairment for the left upper extremity and 9% upper extremity impairment for the right upper extremity. That converts to 5% WPI for each side, which combines to 10% WPI. The Appeal Panel consequently assesses the appellant’s WPI as 10%, and certifies that. The Appeal Panel observes that that is the same assessment that the Medical Assessor made, but as said he based his assessment on incorrect criteria. The table to the MAC that the Medical Assessor issued specified that incorrect criteria. Consequently, it is appropriate that the table to the MAC is corrected to ensure the certification contains the correct criteria applied to assess the appellant’s permanent impairment.
The Appeal Panel also observes that neither the medical dispute between the parties nor the referral to the Medical Assessor of that medical dispute included an injury to the appellant’s thumb or any impairment relating to a restricted movement of her thumb. Consequently, insofar as the Medical Assessor assessed impairment relating to that, the Medical Assessor made an error and the MAC consequently contains a further demonstrable error. That particular error however is also corrected as a consequence of the Appeal Panel applying the correct criteria to assess the appellant’s permanent impairment, that is the criteria set out in
s 16.5 of AMA5.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W879/23
Applicant:	Christina Leota
Respondent:	General Mills Manufacturing Australia Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor 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)
Right upper extremity (elbow and wrist)	23/09/2019	Chapter 2, paragraphs 2.9 and 2.10	Section 16.5, Tables 16-10, 16-11 and 16-15	5%	-	5%
Left upper extremity (elbow and wrist)	23/09/2019	Chapter 2, paragraphs 2.9 and 2.10	Section 16.5, Tables 16-10, 16-11 and 16-15	5%	-	5%
Total % WPI (the Combined Table values of all sub-totals)					10%

[2023] NSWPICMP 607

23 November 2023