Luthra v Outlook (Aust.) Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Luthra v Outlook (Aust.) Ltd [2025] NSWPICMP 12
APPELLANT:	Manvinder Singh Luthra
RESPONDENT:	Outlook (Aust.) Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	7 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Whether the Medical Assessor (MA) found that the appellant did not suffer a median nerve injury, which the parties agreed the appellant had suffered and which was the subject of the referral to the MA; Held – MA’s assessment was that the appellant had recovered from his median nerve injury, and not that the appellant did not suffer that injury; MA was consequently correct to assess that the appellant did not have any permanent impairment from that injury.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 October 2024 Manvinder Singh Luthra, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
3 September 2024.
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

In November 2022 the appellant commenced employment as a disability support worker with Outlook (Aust.) Ltd, the respondent. On 6 January 2023, whilst in the course of his employment, he tripped on a gutter and fell over. He used his hands to break his fall, which resulted in his suffering a capitellar fracture of his left elbow. On 10 January 2023 he was admitted to Gosford Hospital where orthopaedic surgeon Dr Bateman performed an open reduction and internal fixation of the fracture. Following his surgery he experienced paraethesia and weakness in his left hand which resulted in him using his right arm to perform most of his activities, which in turn led to his developing numbness in his right hand.
The appellant claimed compensation from the respondent’s insurer for permanent impairment from his injury, which he said was of the order of 29% whole person impairment (WPI). He relied on reports dated 17 October 2023 and 13 November 2023 that occupational physician Dr Andrew Porteous prepared for his solicitors. Dr Porteous had examined the appellant on 10 October 2023 and in his earliest report recorded making the following findings from his examination of the appellant’s upper extremities:
“At examination he had a 12 cm posterior left elbow vertical thin pinky red scar with keloid that he can place. He had 0º to 140º flexion right elbow, while it was -10 (1º to 110º flexion) (4%). He had 60º pronation and supination. That was normal on the right elbow. 7% UEI, Figures 16-34, 37.
He had a reduced sensation to light touch in the palmar aspects of all of the fingers and of the thumb on both hands. There is mild wasting of the hypothenar eminence on the right. He had a negative Tinel’s test at the wrist and elbow. He had a mildly positive Phalen’s test bilaterally in the hands. He had normal motor power and was able to cross the middle and index fingers in both hands and also able to pinch grip in both hands. There is no loss of motor power, and it was considered 5/5. Reflexes were normal today.”
Dr Porteous also provided a diagnosis in that report that the appellant had suffered a left elbow capitellar fracture. Dr Porteous further noted that the appellant had developed tingling and pins and needles in his left hand which he said had some features of an “ulnar and/or median nerve abnormality”. Dr Porteous noted too that the appellant had developed tingling and pins and needles in both the median and ulnar nerve distribution in his right hand due to the appellant favouring his left elbow. Dr Porteous said he would need to refer to nerve conduction studies to confirm whether the appellant had an ulnar or median nerve abnormality with respect to his left hand and also, because of the appellant’s widespread symptoms in the right hand, to clarify whether he had impingement of his right median nerve. Dr Porteous noted that it was possible that the appellant had unmasked or developed bilateral carpal tunnel syndrome and that he required nerve conduction studies to confirm that.
Following the appellant’s solicitors receiving that report, they provided to Dr Porteous the results that consultant neurologist Associate Professor Denis Crimmins had recorded from sensory and motor nerve conduction studies he had done on the appellant on
22 August 2023. Associate Professor Crimmins’ concluded that the findings were consistent with a median nerve entrapment at the level of the wrist bilaterally, which was worse on the left side.
In his subsequent report of 13 November 2023 Dr Porteous advised that the nerve conduction studies showed that the appellant’s “neurological symptoms in the forearms are related to bilateral carpal tunnel syndrome”. Dr Porteous said that the appellant’s left wrist carpal tunnel syndrome is a result of the appellant’s work injury and subsequent surgery. He said that the appellant’s right wrist carpal tunnel syndrome is the result of the appellant overusing his right arm when favouring his left arm injury and consequently is due to the appellant’s left arm injury.
Dr Porteous also advised that he assessed the appellant had 29% WPI from his injury. He advised this was a combination of 7% upper extremity impairment due to the appellant’s restricted range of motion of his left elbow and 23% upper extremity impairment due to the appellant’s left median nerve (which he noted combines 28% UEI and converts to 17% WPI), and 23% upper extremity impairment due to the impairment of the appellant’s right median nerve, which he noted converts to 14% WPI.
To respond to the appellant’s claim for compensation for permanent impairment, the respondent’s solicitors arranged for the appellant to be examined by orthopaedic surgeon Dr John Bentivoglio on 12 March 2024. In a report dated 14 March 2024 Dr Bentivoglio advised that he made a diagnosis that the appellant suffered “a nasty fracture of his capitellum…involving his left upper limb”. Dr Bentivoglio also diagnosed, based on the nerve conduction studies, that the appellant had bilateral carpal syndrome which he considered was due to carpal tunnel compression in the median nerve. Dr Bentivoglio said that this compression “may well have occurred as a result of falling on his outstretched upper limbs when he sustained the fracture of his capitellum”.
Dr Bentivoglio advised he assessed the appellant had 14% WPI from his injury, being a combination of 7% WPI relating to the appellant’s left upper extremity, (which he noted was due to the appellant having 11% upper extremity impairment due to a sensory motor dysfunction of his median nerve) and 7% WPI relating to his right upper extremity (which he advised was comprised of 1% upper extremity impairment due to decrease extension of his left elbow and 11% upper extremity impairment due to sensory motor dysfunction of his right median nerve).
There was thus a medical dispute between the parties regarding the degree of the appellant’s permanent impairment from the injury he suffered on 6 January 2023. The appellant by an Application to Resolve a Dispute dated 14 June 2024 that he filed with the Personal Injury Commission (Commission) sought the Commission determine his claim against the respondent for compensation for permanent impairment from his injury. A delegate of the President of the Commission referred the medical dispute between the parties relating to that claim to the Medical Assessor to assess. The Medical Assessor conducted an examination of the appellant on 26 August 2024, and as said earlier issued a MAC on 3 September 2024 in response to the referral to him.
In the MAC the Medical Assessor certified he assessed the appellant had 7% WPI from his injury. That was comprised entirely of the impairment he assessed the appellant had due restricted range of movement of the appellant’s left elbow. No complaint has been made by the appellant regarding the findings from the Medical Assessor’s examination of his movement of his left elbow or the Medical Assessor’s assessment of his permanent impairment based on that restricted range of movement. The appellant’s challenge to the Medical Assessor’s assessment of the matters referred for assessment relates to the Medical Assessor finding that he did not have any impairment due to an injury to his right and left median nerve.
Relevant to that aspect of the Medical Assessor’s assessment, the Medical Assessor noted that the appellant’s present symptoms included numbness that affected his left hand globally including the palmar and dorsal aspects and all digits and thumbs, and numbness of his right hand that affected all of the palmar but not dorsal aspects of his hand. The Medical Assessor also noted that the nerve conduction studies done on 22 August 2023 were reported to show changes consistent with median nerve entrapment at the level of the wrist bilaterally, and normal motor and sensory findings for the ulnar nerve.
The Medical Assessor recorded the following findings from his examination of the appellant’s upper limb peripheral nerves:
“Examination of upper limb peripheral nerves revealed a subjective non-anatomical reduction in pinprick sensation which on the left side was global in nature and extending to the mid upper arm. There was also no pattern of peripheral nerve deficit on the right side with the reduction in pinprick being patchy, but did not conform to a peripheral nerve distribution. Neither side conformed to a dermatomal loss or peripheral nerve distribution that was objectively verifiable.
Deep tendon reflexes were within normal limits.
Power was globally reduced, but not in a myotomal distribution.
Provocative tests for carpal tunnel were negative.”
The Medical Assessor said that the appellant’s injury to his left elbow on 6 January 2023 consisted of a left elbow capitellar displaced fracture that required open reduction and internal fixation from which the appellant developed a chronic pain state with regional neuropathic pain but without features of complex regional pain syndrome or a specific peripheral nerve impairment.
As already noted, the Medical Assessor assessed the appellant had no impairment relating to a peripheral nerve. His explanation for that part of his assessment was provided within part 10a of the MAC and was the following:
“Peripheral Nerve Impairments: When present are assessed under the W.C.C Guides 4th Edition, Chapter 2, Page 11, Paragraphs 2.9 and 2.10 and A.M.A 5, Chapter 16, Page 482, Table 16 - 10 ; Page 484, Table 16 – 11and Page 492, Table 16 - 15.
Carpal tunnel syndrome, when present, is assessed using A.M.A 5 - Chapter 16, Page 482, Table 16 - 10 ; Page 484, Table 16 – 11 and Page 492, Table 16 - 15 and W.C.C Guides 4th Edition (Revised March 2021) Chapter 2, Page 11, Paragraphs 2.9 and 2.10.
In this case there was no clinical evidence of a peripheral nerve lesion including median nerve / carpal tunnel syndrome. The examination findings did not conform to an objectively verifiable anatomical pattern and particularly not that of median nerve/carpal tunnel impairment. While there was some evidence on nerve conduction studies of bilateral median nerve entrapment at the level of the wrist bilaterally the clinical signs were not consistent with a median nerve lesion at the wrist on either left or right side.
It is not uncommon that nerve conduction studies do not correlate well with clinical
symptoms and signs for carpal tunnel and this is highlighted on Page 493 of A.M.A 5. A.M.A 5 further specifies that “only individuals with an objectively verifiable diagnosis qualify for a permanent impairment rating. The diagnosis is made not only on believable symptoms [should they be present] but, more important, on the presence of positive clinical findings”. Clinical examination findings that are objectively verifiable are necessary to make the diagnosis and are absent on today’s examination. Nerve conduction studies help support the clinical findings but do not replace them. The reported symptoms were also not confined to median nerve or other peripheral nerve distribution but rather in keeping with of a regional disorder.
Today’s assessment was consistent with a chronic regional neuropathic pain state but without vasomotor or sudomotor features necessary for a ratable impairment of C.R.P.S.”
Within part 10c of the MAC the Medical Assessor compared his assessment of the appellant’s permanent impairment from the appellant’s injury to the assessments that
Dr Porteous and Dr Bentivoglio had respectively made. The Medical Assessor noted that both doctors had included a component in their respective assessments for impairment of the median nerve. The Medical Assessor made the following comments regarding that:
“Both I.M.E examination findings are not in keeping with a median nerve lesion at the wrist with Dr Porteus reporting sensory loss involving all the fingers and the thumb on both hands i.e. not confined to a particular peripheral nerve. Dr Bentivoglio reports sensory loss in the fingers supplied by the median nerve but only extending to the knuckle joints (metacarpo-phalangeal joints) not to the wrist as one would expect with an entrapment at the wrist and if guided by the nerve conduction studies.
On today’s examination, as mentioned previously under Section 5 and discussed under
Section 10a), subjective sensory loss extended across all 3 peripheral nerves, median,
ulnar and radial nerves and beyond that, extended in a non-anatomical distribution up the arm. Today’s examination findings matched reported global symptoms, again, not
conforming to a particular peripheral nerve or anatomical distribution.
….
I am satisfied that on today’s examination findings, there is not a rateable impairment for median nerve/carpal tunnel. The symptoms are more consistent with chronic regional neuropathic pain. This suggests a possibility of C.R.P.S but on today’s examination the sudomotor of vasomotor changes necessary to assess a ratable impairment for C.R.P.S were not present.”

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 it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established any of the grounds for appeal on which it relied, and consequently the Appeal Panel had no reason or power to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s solicitor drafted the appellant’s submissions. They were somewhat clumsily composed. For example, at [24] of the appellant’s submissions reference is made to the Medical Assessor failing to engage with the evidence and “appropriately apply the PIRS criteria”. The PIRS criteria is an obvious reference to the criteria that the Guidelines within Chapter 11 instruct a Medical Assessor to adopt when assessing the degree of a worker’s permanent impairment from a psychiatric injury. They have no application whatsoever to assessing the degree of a worker’s permanent impairment relating to an impairment a worker has of his upper extremities due to a physical injury.
Also at [24] of the appellant’s submissions, the appellant described one of the two broad grounds upon which he based his appeal against the Medical Assessor’s assessment is the Medical Assessor’s “failure to provide procedural fairness in relation to the finding that there was no” (verbatim). That is an incomplete sentence. The appellant did not specify what it is that the Medical Assessor failed to find.
Further, at [29] of his submissions, reference is made to “Assessor Yates”. That is not the Medical Assessor who conducted the medical assessment. As said at the outset, the Medical Assessor is Dr David Lewington.
Notwithstanding that clumsiness, it would appear that the appellant’s submissions are that the Medical Assessor wrongly found that he did not suffer a median nerve injury and, as a consequence of making that error, the Medical Assessor made a further error by not assessing that he had a nerve impairment. The appellant submitted that the Medical Assessor denied him procedural fairness by finding he did not have a nerve injury because there was no dispute between the parties that he had suffered a nerve injury. The appellant submitted that the Medical Assessor’s finding “flew in the face of not only all the medical evidence in the material, but also fell outside the scope of any dispute”. The appellant submitted that his “nerve injuries were referred for assessment” and that the respondent had accepted liability for those injuries.
The respondent, in reply to the appellant’s submission, noted the matters within the appellant’s submissions to which the Appeal Panel made reference at [25] to [29] above. The respondent submitted that because of those matters the appellant’s appeal should be dismissed and the MAC confirmed without further consideration.
The respondent further submitted that the Medical Assessor was not bound by the conclusions of Dr Porteous or Dr Bentivoglio and was able to make an independent assessment based on his examination of the appellant.

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.
It is the case, as the appellant has submitted, that there was no dispute between the parties that the injury the appellant suffered on 6 January 2023 included a bilateral median nerve injury, as well as a fracture of his left elbow capitellum. Consequently, the Medical Assessor was required to assess the degree of the appellant’s permanent impairment resulting from that injury.
The Appeal Panel does not however agree with the appellant’s submission to the effect that the Medical Assessor found that the appellant did not suffer an injury to his left and right median nerve. What the Medical Assessor found was that at the time he examined the appellant there was no objective clinical evidence of any signs from that injury and no evidence of any symptoms from that injury. In other words, the Medical Assessor found, in substance, that at the time he examined the appellant, the injury had resolved and, consequently, there was no permanent impairment he could assess from that injury at the time he made his assessment.

The current presence of such an injury is determined by reference to the symptoms a worker experiences and from the results of provocative tests an examiner performs, being the Phalen test and the Tinel test. The Tinel test is where the examiner taps the skin of the person who has suffered the injury along the distribution of the median nerve. If the tapping causes sensory change in the middle and ring fingers and thumb of a worker, then that indicates the current presence of the injury. The Phalan test involves the examiner forcefully flexing the injured person’s wrist for a short period of time to ascertain whether that elicits any sensory change in the person’s hands and fingers. If it does, then that too reveals the current presence of an injury to the median nerve. Absent the injured person demonstrating signs of sensory change in those tests, there can be no entrapment or compression of the carpal nerve in the wrist. If there were such entrapment or compression it would demonstrate sensory change from the two tests. Basically, if the tests do not reveal current signs of sensory change, then that means the injury the person has suffered to his or her median nerve has resolved.
The Medical Assessor said in the MAC that “provocative test for carpal tunnel were negative”. That means the Medical Assessor conducted the provocative tests, that is the Phalens and Tinel tests, and that they did not produce sensory change. The Medical Assessor in accordance with paragraph 1.6 of the Guidelines was required to assess the appellant based on how the appellant presented on the day of the assessment. The Medical Assessor consequently could not make an assessment of impairment under Table 16-10 of AMA5.
Further, the Medical Assessor observed that his examination of the appellant revealed the appellant had “a subjective non-anatomical reduction in pin prick sensation which on the left side was global in nature” and which on the right side was “patchy” and “did not conform to a peripheral nerve distribution”. Such a sensory disturbance is not due to entrapment or compression of the median nerve. It is more likely associated with the chronic pain state with neuropathic pain that the Medical Assessor found the appellant had developed.
Consequently, the Appeal Panel finds that the Medical Assessor did not make the errors the appellant contended. The Appeal Panel finds that the MAC does not contain a demonstrable error.
Hypothetically speaking, even if it was the case that the Medical Assessor found that the appellant did not suffer an injury to his median nerve in the event of 6 January 2023, which would be an error given the scope of the medical dispute that was referred to him for assessment, such an error would not be material because, based on the Medical Assessor’s findings from his examination, there were no signs of impairment at the time of examination that would enable a rating to be made under Table 16-10 for impairment resulting from a peripheral nerve disorder. This is because the findings the Medical Assessor made from his examination of the appellant do not reveal any signs or symptoms of such a disorder. Again, the provocative tests conducted were negative. The changes to the appellant’s sensation in his hands and fingers do not accord with the median nerve distribution.
For these reasons, the Appeal Panel has determined that the MAC issued on
3 September 2024 should be confirmed.

[2025] NSWPICMP 12

7 January 2025