Lowery v ABC Building Pty Ltd
[2024] NSWPICMP 698
•4 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lowery v ABC Building Pty Ltd [2024] NSWPICMP 698 |
| APPELLANT: | Benjamin Lowery |
| RESPONDENT: | ABC Building Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | John O’Neill |
| DATE OF DECISION: | 4 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from finding of 6% whole person impairment (WPI) by claimant who fell 3 metres when scaffolding collapsed under him; whether Medical Assessor (MA) had failed to comply with section 322; whether MA had given adequate reasons; respondent conceded the appeal; claims were for cervical spine, right upper extremity, right lower extremity central and peripheral nerve damage, and scarring; MA found elbow and shoulder injuries had not reached maximum medical improvement but assessed the remaining injuries, thus infringing section 322(2) that impairments resulting from the same injury are to be assessed together; MA found inconsistency on measuring range of motion but did not explain why the alternative options within the Guides in such a case had not been used; MA commented that no evidence of a cervical spine injury identified; Marks v Secretary, Department of Communities and Justice (No 2) referred to; Held – Medical Assessment Certificate revoked; claimant re-examined and 28% WPI certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 April 2024 Benjamin Lowery lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 6 February 2024 the delegate of the President referred this matter for a WPI assessment of the following injuries, which occurred on 22 January 2020:
(a) cervical spine;
(b) right upper extremity (shoulder, elbow, wrist);
(c) right lower extremity (knee);
(d) central and peripheral nervous system, and
(e) scarring (TEMSKI).
The referral followed consent orders entered on 15 November 2023 before Member Capel.
Mr Lowery was a property developer/builder who was injured when he fell approximately 3m from a scaffold which collapsed under him. He spent about a week in Nepean Hospital, during which time he underwent plastic surgery for a laceration on his right forehead. He suffered impacts to his head, right shoulder, right elbow, right knee and lower abdomen. He fractured both his wrists.
During recovery after about two weeks he was admitted to hospital with severe infection in the right arm. Approximately two months after the injury he became aware of symptoms in his right elbow and was admitted on three occasions to hospital for treatment of infection in the right elbow and right forearm. He came to surgery at the beginning of 2021 and two additional surgical procedures were subsequently performed on the right elbow.
Mr Lowery also suffered a post-traumatic stress disorder.
The Medical Assessor gave a 6% total WPI, having found that maximum medical improvement had not occurred regarding the right upper extremity injuries.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the respondent conceded that the Medical Assessor had fallen into error, and a re-examination was accordingly necessitated.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Mark Burns of the Appeal Panel conducted an examination of the worker on
28 August 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
As noted, the respondent conceded error on behalf of the Medical Assessor. It said:[1]
“The respondent does not oppose the worker’s appeal submissions.”
SUBMISSIONS
[1] Appeal papers page 17.
Mr Lowery submitted that the Medical Assessor had breached the provisions of s 322 of the 1998 Act, specifically that the Guides issued under that section prohibit an assessment from being conducted if maximum medical improvement had not been reached, as the Medical Assessor had found in relation to the right elbow.
Mr Lowery further submitted that the Medical Assessor did not employ the alternative options available within the Guides, and that he failed to give adequate reasons in that regard.
DISCUSSION
Section 322 of the 1998 Act provides relevantly:
“(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.”
The relevant guidelines with regard to the consideration of the term ‘maximum medical improvement’ are Chapters 1.15 and 1.16 of the Guides:
“1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation …”
The Guides also provide at Chapter 1.36:
“1.36 AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
In the chapter concerned with assessing impairments of the upper extremity, Chapter 2, the following guidelines are relevant:
2.2 Evaluation of anatomical impairment forms the basis for upper extremity impairment (UEI) assessment. The rating reflects the degree of impairment and its impact on the ability of the person to perform ADL. There can be clinical conditions where evaluation of impairment may be difficult. Such conditions are evaluated by their effect on function of the upper extremity, or, if all else fails, by analogy with other impairments that have similar effects on upper limb function.
…..
2.7 The hand and upper extremity are divided into regions: thumb, fingers, wrist, elbow and shoulder. Close attention needs to be paid to the instructions in AMA5 Figures 16-1a and 16-1b (pp 436–37) regarding adding or combining impairments.
2.8 AMA5 Table 16-3 (p 439) is used to convert upper extremity impairment to WPI. When the Combined Values Chart is used, the assessor must ensure that all values combined are in the same category of impairment (that is WPI, upper extremity impairment percentage, hand impairment percentage and so on). Regional impairments of the same limb (eg several upper extremity impairments) should be combined before converting to percentage WPI. (Note that impairments relating to the joints of the thumb are added rather than combined – AMA5 Section 16.4d ‘Thumb ray motion impairment’, p 454.).”
The Medical Assessor made the following observations regarding his examination of
Mr Lowery:[2]“With regard to the examination of the upper extremities, shoulder flexion and abduction on the right side were accomplished to 80°, adduction was normal and there was gross reduction of the range of internal and external rotation of the right shoulder to less than 20°. All movements were variable in their amplitude not allowing a consistent goniometer reading. There was no wasting of the paracervical or shoulder girdle muscles and no palpable abnormalities over the shoulder joints during shoulder movement.
There was possible ankylosis of the right elbow in some degree however, the degree of flexion, extension, supernation and pronation varied and a consistent reading could not be taken, he complained of pain in the right elbow with movement and intermittent redness and swelling of the right elbow. There was no redness or swelling on examination today, pain was present during movement and localised tenderness was also present in the elbow joint and over the olecranon.
The range of wrist movement was normal and symmetrical in all directions and there was no abnormality of power of wrist movement nor any abnormality of joint contour…”
[2] Appeal papers page 21.
For the upper extremity, the Medical Assessor certified there was 0% WPI for the injury to the wrist,[3] but maximum medical improvement had not occurred in relation to the injury to the right elbow, nor the right shoulder. In summarising Mr Lowery’s case at [8] of the MAC, the Medical Assessor said, relevantly:
“A high degree of variability is referred to in the physical examination and is a major barrier to assess right upper extremity impairment. The variability on examination of the right elbow is associated with intermittent complaints of pain and redness, erythema, which continue since the last surgery. Further chronic infection may be present there requiring orthopaedic investigation and possible treatment. Maximum medical improvement and stability has not been reached for that joint. Further chronic infection may be present requiring further orthopaedic investigation and possible treatment.
There is no assessable whole person impairment of the cervical spine, right wrist, right knee or within the peripheral nervous system.
Consistent goniometer recordings could not be achieved on examining the shoulders or right elbow.”
[3] Appeal papers page 27.
We note further, the comment made by the Medical Assessor at [12c] of the MAC:
“I do not identify evidence that a cervical spine injury occurred….”
At [12d] of the MAC, the Medical Assessor said:
“I certify that the impairment is permanent and that the degree of permanent impairment is ascertainable except for impairment of the right elbow, which cannot be regarded to have reached maximum medical improvement, this and the right shoulder because of the variability of the goniometer readings.”
We find that the Medical Assessor has erred in a number of areas, with respect. Chapter 1.15 does not, in terms, deal with the situation where there are multiple injuries to be assessed, and only some are not assessable because they had not reached maximum medical improvement. However, the terms of s 322(2) mandate that impairments that result from the same injury (in the sense of an injurious event) must be assessed together, and the splitting of an assessment in the manner performed by the Medical Assessor in this case has the effect of infringing the section. Practical difficulties can also be envisaged, as the provisions of Chapter 2.8 of the Guides demonstrate.
The Medical Assessor has also failed to explain why he found that there had been no maximum medical improvement in relation to the right elbow and shoulder in terms of Chapter 1.15. He did not consider the above options where inconsistent range of motion measurements were taken. He did not explain why he could not modify his impairment rating as provided by Chapter 1.36 of the Guides, neither did he did explain why he had not utilised an analogous impairment in conformance with Chapter 2.2 of the Guides.
Further, his comment that he could not identify evidence of injury to the cervical spine was regrettable, as he was bound to accept that such injury had been incurred by virtue of the referral.[4] The Medical Assessor’s comment was gratuitous, and perhaps engendered a perception that his assessment had been infected by bias.
[4] See Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616.
Accordingly the Panel determined that Mr Lowery should be re-examined. Medical Assessor Burn’s report follows:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number:
M1-W6276/23
Appellant:
BENJAMIN LOWERY
Respondent:
ABC Building Pty Ltd
Date of Determination:
September 2024
Examination Conducted By:
Assessor Mark Burns
Date of Examination:
28 August 2024
1. The workers medical history, where it differs from previous records
Mr Lowery confirmed the history taken by Assessor Mellick in his Medical Assessment Certificate dated 8 April 2024.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Lowery reported that there has been no change in his treatment or in his history since he was seen by Assessor Mellick on 8 April 2024.
3. Findings on clinical examination
Current Symptoms
Central and peripheral Nervous System
With respect to his head injury, he reported continuing headaches which occur with sudden movements of his head. The headaches are on the right side starting in the frontal area and going back towards the occipital area. The headaches can often be associated with flashbacks of his falling down. He reported ongoing loss of sensation over the right frontal area from the scar going out to just in front of his right ear. The absence of sensation also went down into his right upper eyelid and right eyebrow. This was consistent with the first division of the right trigeminal nerve.
He reports that he still struggles with memory and has to put appointments on the calendar on his phone. He finds the occasional difficulty with memory is very frustrating.
Cervical Spine
With respect to his cervical spine, he reports that he has significant stiffness mostly on rotation and extension. He reported pain over the mid-cervical spine mostly on the left side. The pain is always present but varies in intensity. The pain can occasionally be quite sharp and then can radiate down into his right shoulder. He reported no radiation of pain or discomfort into the right upper extremity below the shoulder or to the left arm.
Right Upper Extremity
He reported having a separate pain in the top of his right shoulder which was different from the neck pain. It is mostly like a dull ache but can increase with activity. With respect to the right elbow he has constant pain over the posterior aspect of the elbow with a marked decrease in range of movement. He stated that the decreased range of movement commenced after his second elbow operation when he was unable to use his elbow and arm for a prolonged period. He reported that Dr Yeoh has told him that his decrease in range of movement is associated with dystrophic calcification which has been shown on elbow investigations. Dr Yeoh was hopeful that the range of movement may improve over time, but this has not been the case.
Associated with the pain over the posterior aspect of the elbow, he also has sensory changes down into the right ring and little fingers. He reports that this is like constant pins and needles which increase when he attempts to use the arm. It is also present when he grips with his right hand. The distribution is consistent with the right ulnar nerve at the elbow.
With respect to his right wrist, he believes that there is a decrease in strength and difficulty in gripping. He states that it feels like he has a grinding sensation in the right wrist.
Right Lower Extremity
With respect to his right lower extremity he reports ongoing sharp pain over the medial aspect of the right knee towards the patella. This occurs when he walks and occasionally on a weekly basis it feels like it is going to give way. He states that he has never fallen. He also reported feeling a grinding sensation behind the kneecap with tenderness over the patellar area.
Scarring
With respect to scarring he has a well-healed scar over the right side of his frontal area which is barely visible. There is a very slight colour change compared to the surrounding skin. Mr Lowery reported that he is conscious of the scar, especially the fact that the direction of his right eyebrow has been slightly changed since the operation. The outer aspect of his right eyebrow now goes upwards towards his forehead. He keeps the eyebrow cut on that side, otherwise it looks different from the left side.
With respect to the scarring over the elbow he is also conscious of this scar and reports that he can easily find the scar.
He reports that his treatment has been remained unaltered since he was seen by Assessor Mellick.
Physical Examination
Mr Lowery was 177cm tall and weighed 106.6kg. He was noted to walk with a normal gait and appeared in no distress at rest.
Cervical Spine
With respect to his cervical spine, he reported tenderness on both the left and right sides but no evidence of muscle spasm or muscle guarding. Flexion was 50% of predicted, but extension less than 25% of predicted with reports of increased neck pain. Rotation to the left and right was 50% of predicted and symmetrical. Lateral tilt to the left and right was also 50% of predicted and symmetrical.
Neurological examination of both upper limbs revealed normal tone and reflexes. Power was slightly decreased in the entire right arm but this did not follow a myotomal pattern. Sensation was also decreased down into the right arm, but again this did not follow a dermatomal pattern.
Circumference of the right upper arm was 39cm and equal to the left. Circumference of the right forearm was 31.5cm and equal to the left.
Central and peripheral Nervous System
examination of the head and face revealed a loss of sensation over the distribution of the first division of the trigeminal nerve on the right side. This included the area lateral to his scarring going out as far as the ear. It went down going as far as the upper eyelid on the right side. Corneal reflexes were still present. There is therefore sparing of the corneal reflex so the entire first division is not involved.
Upper Extremities
With respect to the upper extremities he reported no problem with his left arm but his right arm has pain and discomfort with decreased range of movement in the shoulder, elbow and wrist. Examination of both shoulders revealed tenderness over the right shoulder, but no tenderness over the left shoulder.
Active range of movement in both shoulders was carried out using a goniometer on several occasions.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
150°
Extension
30°
50°
Adduction
0°
30°
Abduction
90°
160°
Internal Rotation
50°
80°
External Rotation
50°
80°
With respect to both elbows, he reported significant stiffness as well as pain in the right elbow, but no abnormality in the left elbow. Again, active range of movement was measured in both elbows using a goniometer on several occasions.
Elbow Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
130°
Extension
-40°
-5°
Supination
70°
80°
Pronation
60°
80°
With respect to both wrists he reported only some mild tenderness over the dorsum of the right wrist but no tenderness at all over the left wrist. Active range of movement in both wrists was measured using a goniometer on several occasions.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
35°
65°
Extension
60°
70°
Radial Deviation
20°
20°
Ulnar Deviation
30°
30°
Examination of peripheral nerves in both hands revealed no abnormality on the left side. On the right side there was tenderness over the posterior aspect of the elbow and there was a positive Tinel’s sign over the ulnar nerve in the cubital tunnel. This led to increased pins and needles in the distribution of the right ring and little fingers. There was no evidence though of muscle weakness in the muscles of the right hand supplied by the ulnar nerve.
Lower Extremities
With respect to the lower extremities, he reported no tenderness over the left knee but tenderness medially over the right knee and behind the patella. Active range of movement in both knees was measured using a goniometer.
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
115°
125°
Extension
0°
0°
It was noted that the right knee was in 5° valgus angulation and the left knee at approximately 3° valgus angulation. There was no evidence of ligamentous laxity in either cruciate or collateral ligaments on the left or right sides. It was noted though that he did have patellofemoral crepitus as well as tenderness in the right knee, but on the left side there was only slight patellofemoral crepitus with no tenderness.
Circumference of the right quadriceps 10cm above the knee was 57cm which was equal to the left. Circumference of the right mid-calf was 39.5cm compared to 39cm on the left. There was no muscle wasting.
Scarring
With respect to scarring there was a barely visible scar over the right side of the frontal region with a slight alteration in colour compared to the surrounding skin. Mr Lowery reported that he was conscious of the scar mostly due to the fact that the upper eyebrow was now turning up towards the scar region. He reports that when the eyebrow grows out fully, it takes a turn going upwards into the scar and is obviously different from the other side. With respect to the scar over the right elbow, this was visible from a distance of several metres and also had some slight change in colour compared to the surrounding skin. Again he was able to localise the scar and the scar would have been visible wearing a short-sleeved shirt.
From discussion with Mr Lowery he reported no impact on activities of daily living by the scars themselves, and no treatment was required for either scar at the current time. On examination there was also no attachment to underlying structures.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Lowery reported that he has had no further investigations carried out since he was seen by Assessor Mellick in April 2024.
Discussion
On my re-examination of Mr Lowery today, I did not find any marked inconsistency with respect to his examination findings. After developing significant infection in his right elbow he had three operations. Following the second operation he was found to have dystrophic calcification with decreased range of movement in the elbow. This has continued until the current time and is probably now permanent. With respect to his right shoulder, I note that investigations have shown a superior labral tear as well as partial thickness tears of the supraspinatus tendon and subacromial subdeltoid bursitis. His physical examination of the right shoulder is consistent with this degree of pathology.
With respect to the right wrist, I believe that his slight decrease in flexion is associated with pain and discomfort. It would be classified as a soft tissue injury. Additionally, the findings in his right elbow are consistent with an ulnar nerve injury at the elbow. Whilst his nerve conduction studies did not reveal an ulnar nerve injury, this is not unusual with mild injuries. It would appear that he has a relatively mild irritation of the right ulnar nerve which has not shown up on his nerve conduction studies. It is certainly present and would be seen as an assessable injury.
With respect to the right knee there is patellofemoral crepitus and tenderness, and his history would be one of a direct blow to the right knee when he fell. Therefore this would also be assessable. I note though that there is no evidence of decreased range of movement in the right knee and no evidence of angulation problems or laxity in the ligaments.
With respect to the forehead, there is certainly an assessable impairment in the first division of the trigeminal nerve. I note though that there is no evidence in the documentation or from the history I obtained from Mr Lowery to support a cognitive impairment. From paragraph 5.9 of the NSW Guidelines I note that there was no evidence of a significant medically verified abnormality in the Glasgow Coma Scale, no significant medically verified duration of post-traumatic amnesia, and no significant intracranial pathology on CT or MRI scan. I therefore believe that he does not have an assessable brain injury.
Impairment Rating
With respect to his cervical spine I note that he has dysmetria. This can be assessed using Table 15-5 of AMA 5. He would be assessed as DRE Category II or 5% whole person impairment. He also has impact upon his activities of daily living due to his neck pain which will give him a further 2% whole person impairment. This would be added to give 7% whole person impairment. I note that there is no evidence of any investigations being carried out on the cervical spine and no evidence of pre-existing neck injury. Therefore I do not believe that a deduction is appropriate.
With respect to the right upper extremity, there are significant problems involving the shoulder, elbow, wrist and ulnar nerve. With respect to decreased range of movement in the right shoulder, I note that there is 16% upper extremity impairment. I do note though that the left shoulder which is uninjured has a 3% upper extremity impairment due to decreased movement in flexion, abduction and adduction. Using the left shoulder as a baseline, the right shoulder would be assessed at 13% upper extremity impairment.
With respect to the right and left elbows, I note that the decreased range of movement in the right elbow would give 13% upper extremity impairment. With respect to the left elbow, he has a slight decrease in range of movement in both flexion and extension, and again the left elbow has not been injured. The left elbow can be used as a baseline such that the right elbow would be 13 – 2% which would give 11% upper extremity impairment.
With respect to the right wrist, there was a decrease in flexion with 35°. This would give 4% upper extremity impairment. The left wrist range of movement was normal so there would be no deduction.
A combination of 13% upper extremity impairment for the right shoulder, with 11% upper extremity impairment for the right elbow, and 4% upper extremity impairment for the right wrist would give 26% upper extremity impairment.
I note that he does have a degree of ulnar nerve injury at the elbow with pins and needles in the right little and ring fingers. From Table 16-15 of AMA 5, complete loss of sensation below the elbow in the ulnar nerve would give 7% upper extremity impairment. I note though from 16-10 he would be graded as Grade 4. I have given 25% of the total which would be 1.75% which would be rounded to 2%. This would then be combined with the 26% upper extremity impairment for range of movement to give 27% upper extremity impairment. This would then be converted to 16% whole person impairment. As there is no history of any previous injury to the right upper extremity, I believe that no deduction would be appropriate.
With respect to the right lower extremity (knee) I note that he did sustain direct trauma to the right knee when he fell, also striking his forehead. From range of movement he would have no assessable impairment. Also I note that there is no laxity or instability in the right knee. From the footnote of Table 17-31 of AMA 5, he did have direct trauma and does have tenderness as well as patellofemoral crepitus. This would give 2% whole person impairment.
With respect to the peripheral and central nervous system, the first division of the trigeminal nerve with sparing of the cornea would be assessed using Para 5.13 of the NSW Guidelines and Table 13-11 of AMA 5. From Table 13-11 he would be assessed as Class 1, or from 0 to 14% whole person impairment. The first division would normally be between 0 and 6% whole person impairment. Considering that his corneal reflex has been spared I believe that 5% whole person impairment is appropriate. Again there would be no deduction.
With respect to scarring, I note from Table 13.1 of the NSW Guidelines that his best fit would be 1% whole person impairment.
A combination of 16% whole person impairment for the right upper extremity with 7% whole person impairment for the cervical spine, and 5% whole person impairment for the central and peripheral nervous system, and 2% whole person impairment for the right knee, and finally 1% whole person impairment for scarring, would give 28% whole person impairment.
Assessor Mark Burns.”
The Panel adopts the report of Medical Assessor Burns.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 April 2024 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: | W6276/23 |
Applicant: | Benjamin Lowery |
Respondent: | ABC Building 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 Ross Mellick and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 22.1.20 | Chapter 4 | Chapter 15 Table 15-5 | 7 | Nil | 7 |
| Right upper extremity (shoulder, elbow, wrist) | 22.1.20 | Chapter 2 | Chapter 16 Pages 443-518 Table 16-15 | 16 | Nil | 16 |
| Right lower extremity (knee) | 22.1.20 | Chapter 3 | Chapter 17 Table 17-31 | 2 | Nil | 2 |
| Central and peripheral nervous system: Trigeminal nerve 1st division | 22.1.20 | Chapter 5.13 | Chapter 13 Table 13-11 | 5 | Nil | 5 |
| Scarring (TEMSKI) | 22.1.20 | Chapter 13 Table 13.1 | N/A | 1 | Nil | 1 |
| Total % WPI (the Combined Table values of all sub-totals) | 28% | |||||
0
2
0