Mathias v Highland Pine Products Pty Ltd
[2025] NSWPICMP 157
•12 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mathias v Highland Pine Products Pty Ltd [2025] NSWPICMP 157 |
| APPELLANT: | John Mathias |
| RESPONDENT: | Highland Pine Products Pty Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 12 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by worker against 14% whole person impairment (WPI) assessment; whether the 1/10th deduction pursuant to section 323 was properly made; whether the 0% finding for scarring was properly made; whether the Medical Assessor (MA) had failed to award WPI in respect of the effects of treatment; Held – section 323 deduction made on assumption; observations as to adequacy of [11] of the Medical Assessment Certificate (MAC) template; worker expert opinion affected by the dicta in Wingfoot Australia Partners Pty Ltd v Kocak but suggested more than one conclusion available; Campbelltown City Council v Vegan, and Vitaz v Westform (NSW) Pty Ltd applied; MA failed to give adequate reasons; Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd, and Fire & Rescue NSW v Clinen referred to; evidence before the MA insufficient to justify deduction; MA finding regarding scarring confirmed; submission made on inadequate factual background and MA reasoning adequate; chapter 14 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guides) applied; submission as to the effects of treatment misconceived as worker on medication for pain relief which medication was specifically excluded from chapter 1.32 of the Guides; Medical Assessment Certificate revoked and section 323 deduction removed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2024 John Mathias, 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
9 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 (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 Guides) 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 14 June 2024 this matter was referred for an assessment of WPI caused by injuries to the lumbar spine and scarring (TEMSKI) which occurred on 20 August 2021.
Mr Mathias was employed as a forklift driver when on 20 August 2021 he clipped a pallet whilst reversing his forklift.
When he got out of the forklift to shift the pallets, he developed acute pain in his back.
On 9 May 2022 he underwent a L3/S1 decompression, two weeks after which he developed an infection, and required an open washout.
He was assessed at 14% WPI.
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 worker to undergo a further medical examination. Although error was established in the MAC regarding the challenge to the s 323 deduction, there was sufficient evidence before us to correct the assessment.
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.
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. They are not repeated in full but 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.
THE MAC
The Medical Assessor noted that Mr Mathias’ current treatment had been to take medication, namely Endone and Tapentadol.
On examination, the Medical Assessor noted “a well-healed, 14 cm, midline scar consistent with the approach for lumbar decompression”. He further noted the MRI investigation of the lumbar spine dated 6 September 2021 which showed “L3/4, L4/5 stenosis.”
Under the heading regarding previous accidents, injuries or condition, the Medical Assessor noted:[1]
“Mr Mathias reports no previous injury to his back beyond the odd “muscle pull.”
[1] Appeal papers page 23.
The Medical Assessor noted on examination “a well-healed, midline scar consistent with the approach for lumbar decompression.”
As to diagnosis, the Medical Assessor said, relevantly:
“Mr Mathias had an injury at work aggravating pre-existing degenerative disease in his lumbar spine.…”
At [10b] the Medical Assessor stated:
“Scarring (TEMSKI) is assessed according to SIRA, page 74, Table 14.1. On the basis of the surgical wound being consistent with the type of surgery without complication, no contour or colour deficit, I assess 0% impairment for Scarring (TEMSKI).”
The Medical Assessor referred to the report of Dr Khong when answering the templated question at [10c]. He said that he disagreed with Dr Khong’s assessment of 1% WPI for scarring “for the reasons given above.”
Question 11 of the MAC is also in templated form. We reproduce the questions and the answers that appeared:
“11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a)In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Degenerative spondylosis lumbar spine.
b)The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)The injury represents aggravation of a pre-existing condition.
c)The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323 (2) I assess the deductible proportion as one tenth.”
SUBMISSIONS
Mr Mathias has submitted that the Medical Assessor had fallen into error by applying a deduction under s 323 of the 1998 Act.
Mr Mathias submitted, relying on the somewhat dated authority of Liu v Buckley Group Pty Ltd (Liq) t/as Buckley Group Pty Ltd (Deregistered)[2] for the proposition that a deduction “cannot be made without evidence identifying the pre-existing injury, condition, or abnormality and establishing when it occurred”.
[2] [2011] NSWWCCMA 25.
Mr Mathias summarized his medical treatment. He referred to the opinion of Dr Khong, that no deduction was necessary under s 323.
The Medical Assessor on the other hand had deducted 1/10th for degenerative spondylosis in the lumbar spine. His reasons for doing so were given on a “pro forma” question which did not, Mr Mathias submitted, engage with the “uncontradicted fact” that the degenerative changes in his lumbar spine were asymptomatic prior to the injury.
Mr Mathias noted that the Medical Assessor had stated that his prior back problems were limited to the a “odd muscle pull”.
Mr Mathias referred to Cole v Wenaline Pty Ltd,[3] as authority for the proposition that evidence regarding a pre-existing condition had to establish that the condition was actually contributing to the loss. A vulnerability, Mr Mathias submitted, was not sufficient.
[3] [2010] NSWSC 78.
Mr Mathias also submitted that the Medical Assessor, whose reasons were limited to saying, “the injury represents aggravation of the pre-existing condition,” did not engage with the central question of causation. Mr Mathias submitted that the Medical Assessor gave no elucidation as to how, why or on what basis it might be said that the “previously asymptomatic” degenerative changes in fact contributed to the assessable permanent impairment.
Mr Mathias submitted that the deduction had been made in error.
As to the scarring assessment, we were referred to the Medical Assessor's comments and Mr Mathias referred to the opinion of Dr Khong and the Medical Assessor's acknowledgement that he disagreed with Dr Khong. It was submitted that the Medical Assessor’s reasons were inadequate as they did not “contend with” the provisions of the TEMSKI scale at Table 14.1 of the Guides.
Mr Mathias relied on Dr Khong’s finding that Mr Mathias was conscious of the scar, which was not mentioned by the Medical Assessor. The scar was 14cm long and resulted from surgery “that was not without incident” Mr Mathias said, referring to the subsequent infection. It was, he said, “plainly” something that he remained conscious of at the time of the medical assessment, just as he had been when he saw Dr Khong.
In the circumstances, the finding by the Medical Assessor that the scar was consistent with the type of surgery Mr Mathias underwent without complication, was “not a relevant criterion”, Mr Mathias submitted. He argued that the Medical Assessor had failed to take account of a relevant consideration (that Mr Mathias was conscious of his scar) and had regard to an irrelevant consideration (that the wound was consistent with surgery without complication).
Mr Mathias then submitted that the Medical Assessor ought to have increased his assessment pursuant to Chapter 1.32 of the Guides.
The Medical Assessor noted Mr Mathias’ medication regime but, Mr Mathias said, had failed to “extrapolate as to the effects of such treatment”. It was submitted that the Medical Assessor had failed to consider the provisions of Chapter 1.32. The course of treatment had continued over a lengthy period, since at least May 2023, Mr Mathias submitted, and Chapter 1.32 should have been considered. His treatment was liable, he said, to “materially, that is substantially” eliminate Mr Mathias's permanent impairment. If it was withdrawn it would cause a reversion to “the original degree of permanent impairment.”
Respondent
The respondent noted that the basis of the appellant’s submissions regarding s 323 was that his pre-existing degenerative changes in the lumbar spine had been “asymptomatic”.
We referred to radiological examination investigations of the lumbar spine in December 2014. The MRI scan of 6 September 2021 showed extensive degenerative pathology. The respondent observed the diagnosis common to both Dr Khong (wrongly identified as Dr Kuru, the Medical Assessor) and the Medical Assessor were consistent in their diagnoses, namely that Mr Mathias was suffering from an aggravation to a pre-existing degenerative disease. The respondent also referred to Cole v Wenaline Pty Ltd (albeit with reference to the wrong presiding Justice) and disputed Mr Mathias’ assertion that his pre-existing condition had been asymptomatic but said that in any event it was now settled principle that whether a pre-existing condition was symptomatic or not was not determinative.
The respondent submitted that the reasoning given by the Medical Assessor in this regard was clear and sufficient to constitute adequate reasons as they “need not be extensive or provide detailed explanation in reaching [a] professional judgment.”
As to the submissions regarding scarring, the respondent admitted that, contrary to the appellant’s submission, the Medical Assessor did refer to the criteria set out in Table 14.1 of the Guides.
The Medical Assessor noted that there was no contour or colour deficit sufficient to justify a 1% WPI rating. He had “clearly” utilised the principle of “best fit”.
The submission regarding effective treatment, the respondent submitted, was unsustainable. Firstly, it observed that Dr Khong had made no such assessment and secondly submitted that Mr Mathias had failed to address the concluding sentence of Chapter 1.32, which specifically excluded the use of analgesics or anti-inflammatory medication for pain relief from the treatment to be considered.
The respondent referred to Wingfoot Australia Partners Pty Ltd v Kocak[4] in submitting that the appellant was simply quibbling with the clinical assessments and findings of the Medical Assessor.
[4] [2013] HCA 43.
The Medical Assessor had, the respondent submitted, explained his actual path of reasoning.
DISCUSSION
Section 323
Section 323 the 1998 Act provides relevantly:
“323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The challenge to the adequacy of the Medical Assessor’s reasons is well made. It may be one of the consequences of way the template for paragraph [11] is drafted, which is potentially confusing. The template reads:
“11 DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY (Delete where not applicable)
a.In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
i.(List previous injuries etc. If there are no such injuries etc put ‘Nil’)
b.The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
i.(List each sign etc that results from the previous injury etc and explain how the previous injury etc directly contributes to each of those matters. If there are no such matters put ‘Nil’)
c.The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)
OR (delete if not applicable)
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is X for the following reasons:
i.(List the reasons which have led to the conclusion that a one tenth deduction is at odds with the available evidence and which support the assessment made)
OR (delete if not applicable)
In my opinion the deductible proportion is X for the following reasons:
i.(List reasons which support the assessment made)
OR (If answer to b or c was Nil)
There is no deductible proportion.”
It can be seen that the form of [11] is capable of being misleading as, on one view, it could imply that, by virtue of the terms expressed in [11a, b and c], the default position for the assessment of deductions is s 323(2).
The question at [11b] is, with respect, somewhat convoluted. The templated statement maintains that the pre-existing condition (relevantly) “directly contributes to the following matters” and it then states that the matters mentioned in [10a] are those matters, “and in the following way.” The contents of [11b (i)] perpetuate that confusion.
Whilst [11b] does mention “when assessing the whole person impairment,” the essential requirement regarding the pre-existing condition is that it directly contribute to the total impairment assessed - sometimes called the “baseline impairment.”
The Medical Assessor at [10a] said:
“My opinion and assessment of whole person impairment:
Lumbar spine: 16% whole person impairment. Scarring (TEMSKI): 0% whole person impairment.
In making that assessment I have taken account of the following matters:
Review of the material provided and a detailed examination of the claimant.”
At [11b], the Medical Assessor said:
“(i) The injury represents aggravation of a pre-existing condition.”
What is lacking from the Medical Assessor’s comments is any explanation as to why the presence of degenerative spondylosis contributed to the baseline impairment assessment. There is thus an error in his reasoning. We accordingly considered the evidence that was before the Medical Assessor to consider whether the deduction made was justifiable.
Firstly, the Medical Assessor, as noted, reported Mr Mathias’ statement that Mr Mathias had not had any previous injury to his back “beyond the odd ‘muscle pull’.”
In his statement of 1 November 2021, Mr Mathias said:[5]
“12. A number of years ago, I sustained a muscle strain injury to my shoulders and 1 also sustained a muscle strain Injury to my lower back. Both of the injuries were minor in nature and I do not recall lodging a workers compensation claim in respect of either incident. I was not suffering from any incapacity for work or undergoing any active treatment when I started work with Highland.
13. I commenced employment with Highland in Oberon approximately five (5) years ago. I am employed as a forklift driver in dispatch. When I commenced employment, I underwent a pre-employment medical exam that I passed without issue.”
[5] Appeal papers page 38.
We were referred by the respondent to the clinical notes of Mr Mathias’ GP practice, Kelso Medical Centre. In fact the reference was to the heading “investigation requests,” under which the following appeared:[6]
“02/12/2014 Dr K Biswas X-ray - Foot (L), Low back pain and rt foot pain
X-ray - Spine - Lumbo-sacral Tender back and foot”
[6] Appeal papers page 37.
However, the clinical notes commenced on 20 April 2021, and did not date back to
2 December 2014, neither were the X-ray reports available.The respondent also referred to the conclusions of the radiologist who considered the MRI scan taken on 6 September 2021, after the injury. It stated:[7]
“CONCLUSION:
Epidural lipomatosis. At L5/Sl and distally there is severe canal stenosis with clumping of the cauda equina roots. Minor disc herniation is seen within the mid to lower lumbar levels although there is no significant foraminal narrowing.”
[7] Appeal papers page 80.
The diagnosis given by Dr Peter Khong, neurosurgeon, who was retained as Mr Mathias’ medicolegal expert, as at 24 May 2023 was:[8]
“Regarding the lumbar spine, the diagnosis is a musculoligamentous strain and exacerbation of the pre-existing degenerative changes in the lumbar spine.”
[8] Appeal papers page 49.
Dr Khong did not make any deduction pursuant to s 323. He said:[9]
“…Mr Mathias did not have significant back pain prior to his injuries. He experienced
acute exacerbation of previously asymptomatic degenerative changes in his cervical and lumbar spine as a direct result of his injuries.”
[9] Appeal papers page 55.
It can be seen that there was therefore some disparity between the opinions of the Medical Assessor and Dr Khong as to whether a deduction should be made. The effect of other medical opinions was discussed in the often-cited High Court authority of Wingfoot Australia Pty Ltd v Kocak:[10]
“47. The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.” (Authority omitted).
[10] [2013] HCA 43 from [47] per the Court.
The force of submissions that rely on the competing opinions of medical experts is therefore usually of little weight, unless the competing opinions give alternate conclusions to which a Medical Assessor might come. In Campbelltown City Council v Vegan Basten JA (Handley & McColl JJA agreeing) said:[11]
“…Where facts are in dispute, 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. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another....
122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: (authority omitted). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”
[11] From [121].
There was, with respect, no explanation by the Medical Assessor for his decision to deduct 1/10 from the baseline impairment, when another conclusion was open to him, namely that no deduction should be made.
It is settled law that in applying the provisions of s 323, a Medical Assessor must be satisfied that there was a pre-existing condition, and that it actually contributed to the impairment caused by the subject injury. That decision is not to be based on assumption or hypothesis.[12]
[12] Cole v Wenaline Pty Ltd [2010] NSWSC 78; Elcheikh v Diamond Formwork (NSW) PtyLtd [2013] NSWSC 365; Fire & Rescue NSW v Clinen [2013] NSWSC 609.
As to the second step, there was some argument as to whether Mr Mathias’ pre-existing condition had been symptomatic or not. In Vitaz v Westform (NSW) Pty Ltd[13] Basten JA (McColl JA and Handley AJA agreeing) said at [43]:
“….In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
[13] [2011] NSWCA 254.
Again, for the above reasons an alternative conclusion was presented by the evidence before the Medical Assessor and we accordingly reject the respondent’s submission that the Medical Assessor “clearly determined” that Mr Mathias’ pre-existing condition contributed to the overall level of impairment.
Mr Mathias argued that in fact he had been asymptomatic prior to the subject injury and we are satisfied that this was probably the case. The fact that a list of investigations from his GP practice revealed a back X-ray in 2014, without more, was not adequate proof that
Mr Mathias’ pre-existing degenerative condition had been symptomatic. Mr Mathias stated that he had sustained a “muscle strain injury to my lower back,” which he said had occurred “a number of years ago.” That reference may indeed be a reference to the occasion when an X-ray was taken of his lumbar spine, but there is no further evidence, as we indicated, and we do not regard the one episode of muscle strain, or “pulled muscle”, as the Medical Assessor described it, as demonstrating that Mr Mathias had been troubled by a symptomatic degenerative condition prior to his injury.We note the reference by the respondent to the MRI scan of 6 September 2021 and its conclusion that quite extensive pathology was therein demonstrated. As we noted above, the presence of that pathology, whilst perhaps providing the basis for an assumption that
Mr Mathias’s lumbar spine had indeed been symptomatic prior to his injury, did not have any contemporaneous factual support, and accordingly has no weight.We are satisfied that the Medical Assessor did not have an adequate basis for making the 1/10th deduction from the overall permanent impairment assessed, and we were also satisfied that he failed to explain, in the face of the evidence, why it was he actually made that deduction. We are satisfied that it was made on the basis of assumption or hypothesis without any evidentiary basis. As we noted, it may be that the terms of the template at [11] of the MAC misled him, but in any event his finding is revoked.
Scarring (TEMSKI)
With regard to the claim that the Medical Assessor erred in his assessment regarding
Mr Mathias’ scar, Chapter 14.6 of the Guides provides:“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
Chapter 14.8 of the Guides provides:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over the other categories.”
Table 14.1 of the Guides provides the criteria by which a Medical Assessor is to assess minor skin impairment – the “TEMSKI” criteria. There are five classes of criteria which relate to the visibility of the scar. Criteria include whether there is a good colour match with the surrounding skin, whether there are any trophic changes, the location of the scar, whether there is any contour defect and whether it affects a person’s activities of daily living and/or needs treatment. A Medical Assessor is to be guided by the footnote to the Table, which states:
“This table uses the principle of ‘best fit’. You should assess the impairment of the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment….”
As noted above, the Medical Assessor noted on examination that the scar was “well-heeled.” He gave reasons for his 0% finding, to repeat:
“Scarring (TEMSKI) is assessed according to SIRA, page 74, Table 14.1. On the basis of the surgical wound being consistent with the type of surgery without complication, no contour or colour deficit, I assess 0% impairment for Scarring (TEMSKI).”
The reference to the scarring being a “surgical wound,” which was consistent with the surgery Mr Mathias underwent, was a reference to the provisions of Chapter 14.6. The Medical Assessor has referred to the criteria which in his view were relevant and has applied the “best fit” applicable to Mr Mathias’ scar. He acknowledged the opinion of Dr Khong, saying at [10c]:
“… I disagree with the assessment of 1% whole person impairment for Scarring (TEMSKI).”
Mr Mathias argued that these reasons were insufficient because Dr Khong had recorded that Mr Mathias was conscious of the scar whereas the Medical Assessor made no comment.
Dr Khong provided four reports, two dated 24 May 2023, and two further reports dated
30 June 2023 and 4 October 2023. In none of those reports did Dr Khong report any examination of the scar or any opinion thereon. Mr Mathias, in submitting that Dr Khong had recognised that Mr Mathias was “conscious of the scar”, based his argument on a comment made by Dr Khong in his overall WPI assessment, where he said:[14]Page 74
Table 14.1
TEMSKI 1%
Conscious of scar
[14] Appeal papers page 54.
The question of whether a person is conscious or barely conscious of the scar is a feature that differentiates between an entitlement under the five categories above mentioned. If a person is not conscious of the scar, it is one of the criteria that would result in a 0% rating. If a person were so conscious then the assessment could result in a rating between 1% and 9% WPI, depending on the absence or presence of the other criteria listed in Table 14.1. If he had been conscious of the scar, Mr Mathias would not necessarily have been entitled, as other criteria needed to be satisfied, and the Medical Assessor has a wide discretion by virtue of Chapter 14.8.
In any event we do not regard a three-word phrase within an assessment such as that made by Dr Khong as having any evidentiary weight. Mr Mathias, in his statement of
13 October 2023, following his 9 May 2022 surgery, listed 14 paragraphs of restrictions and complaints without mentioning his scar.[15] The Medical Assessor has not made any error in exercising his discretion. He has given reasons for doing so, after examining the scar and referring to the applicable guidelines.[15] Appeal papers page 41 [13 - 28].
This assessment is confirmed.
Effects of treatment
The ground of appeal based on the effects of treatment is misconceived, with respect.
Chapter 1.32 of the Guides states:
“Adjustment for the effects of treatment
1.31 ….
1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or
3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
We have added the emphasis above to demonstrate that the provisions of Chapter 1.32 have no application to Mr Mathias’ case, as his treatment is by the use of analgesics and/or anti-inflammatory medication for pain relief. Endone and Tapentadol are both opioid medicines used for pain relief.
For these reasons, the Appeal Panel has determined that the MAC issued on
9 September 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: | W3654/24 |
Applicant: | John Mathias |
Respondent: | Highland Pine Products Pty Limited |
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) |
| Lumbar spine | 20.8.21 | Chapter 4.27, 4.34, 4.37, 4.2 | P 384, Table 15.3 | 16% | nil | 16% |
| Scarring (TEMSKI) | 20.8.21 | Chapter 14.6, 14.8, Table 14.1 | 0 | 0 | 0 | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0
6
0