MH Management (NSW) Pty Ltd v Taylor

DETERMINATION OF APPEAL PANEL
CITATION:	MH Management (NSW) Pty Ltd v Taylor [2024] NSWPICMP 41
APPELLANT:	MH Management (NSW) Pty Ltd
RESPONDENT:	Julie Anne Taylor
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	29 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal in respect of assessment of right upper extremity and right lower extremity on basis Medical Assessor (MA) erred and applied incorrect criteria in assessing right wrist by comparison to amputation of right arm below the shoulder and left lower extremity by use of ankylosis; MA erred in using amputation as a method of assessment of right wrist and failed to explain adequately why ankylosis was an appropriate method for assessment of foot; worker re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 October 2023 MH Management (NSW) Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 September 2023.
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, 4^th ed reissued 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 respondent (Ms Taylor) sustained an injury to her left lower extremity, right lower extremity, left upper extremity (wrist and hand), right upper extremity (wrist and hand) and lumbar spine when she slipped and fell in the course of her employment with the appellant on 2 March 2017.
Ms Taylor lodged an Application to Resolve a Dispute (ARD) in the Workers Compensation Commission dated 5 October 2018 in which she claimed 15% whole person impairment in respect of injury to the left lower extremity, right lower extremity, left upper extremity (wrist), right upper extremity (wrist) and lumbar spine as a result of injuries sustained on
2 March 2017 in her employment with the appellant.
On 20 November 2018, Dr Anderson, then an Approved Medical Specialist, issued a medical assessment certificate (MAC) in this matter, in which he made an assessment of 8% WPI for the lumbar spine. Dr Anderson considered that the bilateral upper and lower extremities could not be assessed because they had not reached maximum medical improvement (MMI).
On 19 October 2022 Ms Taylor made a claim for lump sum compensation in respect of 26% WPI to the lumbar spine, bilateral knees, right ankle/hindfoot and bilateral wrists, based on the report of Associate Professor Hope dated 5 August 2022.
On 19 May 2023 Ms Taylor applied to reinstate the proceedings in the Personal Injury Commission (Commission) on the basis that she had reached MMI.
The appellant consented to the proceedings being recommenced and Ms Taylor was referred back to the same Medical Assessor Tim Anderson, for assessment of WPI of the left lower extremity, right lower extremity, left upper extremity (wrist) and right upper extremity (wrist) with the date of injury being 2 March 2017.
The Medical Assessor examined Ms Taylor on 29 August 2023 and assessed 0% WPI for the left upper extremity, 20% WPI for the right upper extremity, 0% WPI for the left lower extremity and 8% WPI for the right lower extremity.
The parties agreed that, after taking into account the previous assessment of 8% WPI for the lumbar spine, the combined total was 32% WPI as a result of the injury on 2 March 2017.

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.
The appellant requested that Ms Taylor be re-examined by a Medical Assessor who is a member of the Appeal Panel. The appellant considered that there was a need for a re-examination of Ms Taylor as the Medical Assessor had not recorded range of motion in the right upper extremity or right lower extremity. Ms Taylor submitted that there was no need for re-examination as the Medical Assessor adequately defined why range of motion for the upper right extremity and lower extremity were not able to be used as an assessable criterion for this matter.
As a result of that preliminary review, the Appeal Panel determined that there was a demonstrable error in the MAC and it was necessary for Ms Taylor to undergo a further medical examination because there was insufficient evidence on which to make a determination.

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.

Further medical examination

Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of
Ms Taylor on 15 January 2024 and reported to the Appeal Panel.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a)   this appeal was limited to the Medical Assessor’s assessments of the right upper extremity and right lower extremity;
(b)   right upper extremity - the Medical Assessor assessed impairment at the right upper extremity by comparison to an amputation of the right arm below the shoulder. This assessment was inconsistent with the Referral for Assessment of Permanent Impairment issued by the Commission on 7 August 2023 (the Referral);
(c)   the Medical Assessor erred in assessing WPI to the right upper extremity by analogy to an amputation of the right arm below the shoulder. It was open to the Medical Assessor to decline to assess Ms Taylor’s right upper extremity using range of motion if he considered that he was unable to rely on the range of motion measurements. However, the Medical Assessor did not use an appropriate alternative method to make his assessment. Further, the Medical Assessor erred in basing his assessment on the whole of the right upper extremity, rather than the wrist, as he was directed to do;
(d)   assessment by analogy - the Guidelines provide at cl 2.5 that if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present. The Medical Assessor did not provide an adequate explanation for using the amputation as the method of assessment simply stating that the use of range of motion was likely to be highly inaccurate and that likely functional capacity should be used instead. He further said “it is respectfully advised that this technique has been previously used for the Commission in similar difficult cases” but failed to cite any examples;
(e)   the Medical Assessor did not explain why he adopted the “amputation” method rather than one of the other methods available for assessing upper extremity impairment. This was especially important where there is a significant discrepancy between the Medical Assessor’s assessment of the right upper extremity and that of A/Prof Hope (being 20% WPI vs 5% WPI respectively), which is apparently caused by the assessment method that was selected by each doctor. The Medical Assessor failed to explain why he considered that amputation was a more appropriate method than range of motion in circumstances where Ms Taylor’s claim was based on a report from A/Prof Hope, who considered that range of motion was the appropriate method to assess her impairment;
(f)    further, the Medical Assessor had not discussed what weight he gave to other available evidence when determining if impairment is present. He acknowledged that A/Prof Hope “appears to have had better success and uses the range of movement modality for his assessment”. He did not, however, comment on why he could not use A/Prof Hope’s report, and other pieces of evidence, to inform his assessment;
(g)   assessing beyond the wrist - the Referral recorded that Ms Taylor was to be referred for assessment of the following body parts: “Left lower extremity, Right lower extremity, Left upper extremity (wrist), Right upper extremity (wrist)”. Paragraph 16.2a of AMA5 states “the upper limb is considered as a unit of the whole person and is divided into shoulder, elbow, wrist and hand regions”. It was clear from this that the assessor could take into account an isolated part of the upper extremity;
(h)   despite the referral of the right upper extremity being limited to the wrist, the Medical Assessor based his assessment on the impairment of the whole of the right upper extremity, considering it comparable to an amputation of the right arm below the shoulder. The result was that the Medical Assessor took into account the range up to the shoulder, which has a maximum of 60% WPI. According to Figure 16-2 in AMA5, the maximum for a wrist-level amputation is 54% WPI. In using the figure that applies to the shoulder, rather than the wrist, the Medical Assessor increased the maximum from 54% to 60%. This in turn increased the assessment of 1/3 of the maximum from 18% WPI to 20% WPI. In doing this, the Medical Assessor applied the incorrect criteria and made a demonstrable error;
(i)    the Medical Assessor did not explain why he assessed the whole of the upper extremity, rather than the wrist, which was a demonstrable error;
(j)    right lower extremity - the Medical Assessor erred in his assessment of the right lower extremity. Again, the Medical Assessor decided that it would be inappropriate to assess WPI on the basis of range of motion, but he failed to explain why the method that he chose instead (ankylosis) was appropriate;
(k)   further, it is noted that an assessment of ankylosis falls within Part 17.2f Range of Motion, and the Medical Assessor has not explained why this method was available to him when he had opined that range of motion was not an appropriate method of assessment in this matter;
(l)    the Medical Assessor failed to consider or properly consider other available evidence which could have been used to form his assessment, or to comment on why he did not use such evidence to guide him;
(m)     there were demonstrable errors in the MAC and that the Medical Assessor’s assessment of the right lower extremity was made on the basis of incorrect criteria;
(n)   for the reasons noted above, the MAC contained a demonstrable error and/or was based on incorrect criteria, and
(o)   the Appeal Panel should review the MAC and issue a new MAC based on a proper assessment of the Ms Taylor’s right upper extremity and right lower extremity applying AMA 5 and the Guidelines.
Ms Taylor’s submissions included the following:
(a)   the Medical Assessor was required to assess Ms Taylor in accordance with the Guidelines. Clause 2.5 on page 10 of the Guidelines provides that if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the Medical Assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present;
(b)   the Medical Assessor provided commentary when explaining his calculations on how he arrived at his assessment modality for the right upper extremity. The Medical Assessor noted on page 6 that it already had been established that any kind of assessment using range of motion for joints would be highly inaccurate. In trying to fairly and reasonably assess impairment of the right upper extremity, the Medical Assessor elected to assess in terms of likely functional capacity;
(c)   the Medical Assessor used an assessment of the upper right extremity by comparison to an amputation of the right arm below the shoulder. The decision in NSW Police Force v Daniel Wark [2012] WCCMA 36 confirmed it was essential that the Medical Assessor’s observations were taken into consideration when determining if the correct assessment modality was used. The Medical Assessor observed that it was “just impossible to properly examine Mrs Taylor. Physically, I found the same features when I initially saw her and again these existed at this assessment”;
(d)   the Medical Assessor rightly identified his difficulty in undertaking an assessment of Ms Taylor and provided clinical observations on the day as reasoning for why he was not able to continue assessing the right upper extremity using a range of motion method. The Medical Assessor provided clear reasoning for the use of amputation as an assessment method;
(e)   the appellant has established a difference of opinion in how the assessment ought to be made rather than a demonstrable error (Mahenthirarasa v State Rail Authority of New South Wales and Ors [2007] NSW SC 22);
(f)    it was not incumbent upon the Medical Assessor to explain why he considered the amputation assessment method to be more appropriate when he provided significant reasons defining his difficulty in obtaining a range of motion assessments of Ms Taylor;
(g)   the Medical Assessor did identify that A/Prof Hope had been able to successfully use a range of motion assessment, but the Medical Assessor was convinced that it was “impossible to use the range of motion modality to achieve an accurate Whole Person Impairment”. It was not a requirement nor was it important that the Medical Assessor provided or used A/Prof Hope’s range of motion assessment noting cl 2.5 of the Guidelines provided that an assessor ought use his own discretion in considering what eight to give available evidence to determine if an impairment is present;
(h)   assessment beyond the wrist – the Medical Assessor undertook his own assessment based on his clinical observations and determined from his findings on examination that it was the entire right forequarter that was limited as being part of his examination of the wrist;
(i)    no error was identified. The Medical Assessor assessed the right forequarter by comparing it to amputation of the right arm and this was in relation to the deductions made by the Medical Assessor being two thirds specifically related to the right forequarter;
(j)    the Medical Assessor thoroughly explained why he assessed the whole of the right upper extremity rather than the wrist;
(k)   right lower extremity – the Medical Assessor confirmed that it was just impossible to properly examine Ms Taylor physically. In not being able to determine a range of motion it was incumbent on the Medical Assessor to then undertake the assessment in accordance with cl 2.5 of the Guidelines;
(l)    the Medical Assessor considered that there was no need to use an assessment with the equivalents of an amputation. He considered ankylosis in a neutral position of the ankle joint and the sub-talar joint as being equivalent to the functional capacity of the right lower leg. The Medical Assessor provided his reasoning for the assessment;
(m)     the Medical Assessor provided evidence of the contemporaneous records that he reviewed. After examination of Ms Taylor, the Medical Assessor concluded that the appropriate assessment method in accordance with cl 2.5 of the Guidelines was ankylosis;
(n)   no demonstrable error was identified. The Medical Assessor did not err in his assessment of Ms Taylor and the material supporting his finding comes from his own clinical observations, and
(o)   the appellant failed to identify any demonstrable errors and failed to identify how the Medical Assessor had used incorrect criteria.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Ground 1 – Assessment of the right upper extremity

The appellant submitted that the Medical Assessor fell into error in assessing WPI to the right upper extremity by analogy to an amputation of the right arm below the shoulder. The appellant noted that it was open to the Medical Assessor to decline to assess Ms Taylor’s right upper extremity using range of motion if he considered that he was unable to rely on the range of motion measurements. However, the appellant argued that the Medical Assessor has not used an appropriate alternative method to make his assessment.
The appellant submitted that the Medical Assessor made a further error in basing his assessment on the whole of the right upper extremity, rather than the wrist, as he was directed to do.
The Guidelines provide at cl 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”.

The Guidelines provide at cl 2.5:
“Range of motion (ROM) is assessed as follows:
• A goniometer or inclinometer must be used, where clinically indicated.
• Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
• If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
• If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
• If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Guidelines at cl 1.36 refers to page 19 of the AMA-5 which 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 judgement 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 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.”
Under “Present Symptoms” the Medical Assessor wrote:
“Extensive pain throughout her body. This seems to be mostly focused more towards the right side than the left with gross restriction of functional capacity of the right hand and digits…”
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Mrs Taylor presented in a similar fashion to the previous occasion that I saw her. It was, however, not quite so severe in terms of her very excessive pain responses. As before, the major dysfunction is with the right arm and the right leg. She still has hyper-sensitivity of both right sided limbs, although this did not appear quite so severe as on the previous occasion, which is now getting on for five years ago.
Movement of the right arm remains grossly limited. This does appear to be variable. This was particularly identified with the fingers. No significant issues of alteration of colour, temperature, sweating or nail growth were identified with any of the limbs. Also, there was no swelling.
At this assessment it was just possible to carry out circumferential measurements of the upper limbs and also of the lower legs. It was identified that there was complete symmetry of the upper arms, forearms and also of the calves.
Most of this assessment was conducted with Mrs Taylor in a sitting position. She was able to flex her knees symmetrically. Also there did not appear to be any significant dysfunction in extension of the knees.
A very cautious attempt was made at assessing the reflexes. On the left side, these were quite difficult to demonstrate but were present at the elbow (C5 and 7) and at the wrist (C6).
The left knee and ankle reflexes were also present. It was elected not to try to pursue these on the right because of her chronic and quite severe pain condition.
As on the previous occasion, it was not possible to establish accurate joint measurements from which to assess any impairment evaluation.”
Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“Following the trip and fall at work in March 2017, which is now six and a half years ago, Mrs Taylor initially hurt her right ankle and to a lesser extent, her right arm. There was also an injury to her lower back.
Since then, she has developed a chronic pain condition, mostly associated with the right arm and the right leg which has been extremely difficult to manage. When I previously saw her, it had emerged that she had actually been seen at Royal North Shore Hospital for assessment to join the ADAPT Pain Management Programme. This has apparently been conducted on a second occasion as well. She has, however not actually attended this programme but only the assessment. My understanding is that the reason why she cannot attend this programme is that she does not have the capacity to get up on her own from the floor. If and when she can generate that capacity, it is understood that she would be eligible to attend the Pain Management Programme.
She was under the care of Specialist Pain Management Physician, Dr John Prickett but this no longer continues. My understanding of this situation is that it has been advised that Dr Prickett is realistically unable to assist her further until such time as she attends the Pain Management Programme. Therefore, this seems to be the major “rate limiting factor” beyond which she has not been able to progress and which looks as though this may be the situation for the future and certainly for the next year or so.
This situation has been in existence for well over five years and is therefore very well entrenched. It is therefore highly likely that this unfortunate state of affairs will continue, certainly for the year ahead and likely for longer. To that end, Maximum Medical Improvement has been achieved. Nevertheless, the actual evaluation of whole person impairment is extraordinarily difficult and cannot reasonably be conducted using range of movement, since this is likely to be highly inaccurate. She does not have Complex Regional Pain Syndrome, although does have a chronic pain condition.”
Under “Consistency of presentation” the Medical Assessor wrote: “There is still a lot of inconsistency in Mrs Taylor’s presentation. Nevertheless, was not as bizarre as the findings in the previous assessment”.
The Medical Assessor assessed WPI of the right upper extremity as follows:
“Movement of the right forequarter remains extremely limited and
the functional capacity of the right forequarter is therefore also extremely limited. It has already been established that any kind of assessment using range of movement for joints would be highly inaccurate. Therefore, at almost a “last ditch stance” in trying to fairly and reasonably assess impairment of Mrs Taylor’s right upper extremity, it has been elected to assess this in terms of likely functional capacity. It is respectfully advised that this technique has been previously used for the Commission in similar extremely difficult cases. To that end, the assessment of the right upper extremity is compared to an amputation of the right arm below the shoulder. This provides a whole person impairment of 60% WPI. In considering Mrs Taylor’s existing physical condition, attention is drawn that the circumference of the upper arms and forearms was respectively exactly the same. Therefore, there obviously must be at least some reasonable functional capacity of the right
forequarter. It is therefore assessed that Mrs Taylor’s right upper extremity impairment is one-third of the value of a right arm amputation. This therefore gives a whole person impairment of 20%.”
In commenting on the other medical opinions, the Medical Assessor wrote:
“I would return again to the report of Specialist Orthopaedic Surgeon, Dr Leon Kleinman of 10/09/18, which was several months before I first saw Mrs Taylor. On this occasion Dr Kleinman advised in quite powerful terms that it was just impossible to properly examine Mrs Taylor physically. I found the same features when I initially saw her and again these existed at this assessment.
Specialist Orthopaedic Surgeon, Dr Nigel Hope in his report of 05/08/22 appears to have had better success and uses the range of movement modality for his assessment. Ultimately he arrives at a whole person impairment of 26%, which includes 8% for the lumbar spine, which has already been addressed and I understand accepted by the Commission. At this assessment, however I was quite convinced that it was impossible to use the range of movement modality to achieve an accurate whole person impairment.”
The Appeal Panel noted that the Medical Assessor elected to assess Ms Taylor’s right upper extremity (wrist) in terms of an amputation of the right arm below the shoulder which gave 60% WPI. The Medical Assessor then went on to note that in view of the absence of muscle wasting, there must be some reasonable function or capacity in the right upper extremity and proceeded to assess this as one-third of the value of a right arm amputation, which resulted in an assessment of 20% WPI for the right upper extremity.
The Appeal Panel considered that it was extraordinary to use amputation below the shoulder as a method of assessing the right wrist. The Appeal Panel found that the Medical Assessor failed to give adequate reasons for using this method assessment for an assessment of the right wrist. Even though the Medical Assessor explained his difficulty in obtaining a range of motion assessments for the right wrist, he needed to provide adequate reasons for using the amputation as the method of assessment. The failure to provide adequate reasons for use of amputation below the shoulder as a method of assessing the right wrist was a demonstrable error.
The appellant further submitted that the Medical Assessor erred in basing his assessment on the whole of the right upper extremity, rather than the wrist, as he was directed to do. The Referral of the right upper extremity was limited to the wrist, but the Medical Assessor effectively based his assessment on the impairment of the whole of the right upper extremity, considering it comparable to an amputation of the right arm below the shoulder.
The claim made by Ms Taylor on 19 October 2022 for lump sum compensation was made in respect of 26% WPI to the lumbar spine, bilateral knees, right ankle/hindfoot and bilateral wrists, and was based on the report of A/Prof Hope dated 5 August 2022. A/Prof Hope made a diagnosis of bilateral wrist chronic sprain and assessed 5% WPI of the right wrist based on restriction of range of motion.
The Appeal Panel considered that it was inappropriate to use amputation as an alternative method of assessment by analogy as Ms Taylor had a totally different condition and the referral was limited to an assessment of the right wrist. The Appeal Panel considered that this assessment was therefore made on the basis of incorrect criteria.
The Appeal Panel noted that the Medical Assessor made no findings of any wasting and there was a “lot” of inconsistency in presentation.

Assessment of right lower extremity

The appellant submitted that the Medical Assessor further erred in his assessment of the right lower extremity. The Medical Assessor had decided that it was inappropriate to assess WPI on the basis of range of motion, but he failed to explain why the method that he chose, that is, ankylosis was appropriate.
Under “Present Symptoms” the Medical Assessor wrote:
“Extensive pain throughout her body. This seems to be mostly focused more towards the right side than the left …and also restriction of movement and functional capacity of the right leg. Stairs are avoided if at all possible, although if they are absolutely necessary, she manages these singly but only if she can hold onto a rail with her left hand.”
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Mrs Taylor presented in a similar fashion to the previous occasion that I saw her. It was, however not quite so severe in terms of her very excessive pain responses. As before, the major dysfunction is with the right arm and the right leg. She still has hyper-sensitivity of both right sided limbs, although this did not appear quite so severe as on the previous occasion, which is now getting on for five years ago.
….
At this assessment it was just possible to carry out circumferential measurements of the upper limbs and also of the lower legs. It was identified that there was complete symmetry of the upper arms, forearms and also of the calves.
Most of this assessment was conducted with Mrs Taylor in a sitting position. She was able to flex her knees symmetrically. Also there did not appear to be any significant dysfunction in extension of the knees.
…
The left knee and ankle reflexes were also present. It was elected not to try to pursue these on the right because of her chronic and quite severe pain condition.
As on the previous occasion, it was not possible to establish accurate joint measurements from which to assess any impairment evaluation.”
Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“Following the trip and fall at work in March 2017, which is now six and a half years ago, Mrs Taylor initially hurt her right ankle and to a lesser extent, her right arm. There was also an injury to her lower back.
Nevertheless, the actual evaluation of whole person impairment is extraordinarily difficult and cannot reasonably be conducted using range of movement, since this is likely to be highly inaccurate. She does not have Complex Regional Pain Syndrome, although does have a chronic pain condition.”
Under “Consistency of presentation” the Medical Assessor wrote: “There is still a lot of inconsistency in Mrs Taylor’s presentation. Nevertheless, was not as bizarre as the findings in the previous assessment”.
The Medical Assessor assessed WPI of the right lower extremity as follows:
“The right lower extremity is similarly addressed. In this case,
however rather than carrying out the assessment with the equivalence of an amputation, ankylosis in a neutral position of the ankle joint and the sub-talar joint is elected as being equivalent to the functional incapacity of the right lower leg. This is described in AMA 5 Page 541 and 542. In each instance there is 4% for each joint structure. This therefore gives her a whole person impairment of the right lower extremity of 8%.”
The Appeal Panel noted that the only investigation of the right ankle was the MRI undertaken on 20 June 2017, which reported a mid tarsal joint sprain.
The Appeal Panel did not consider that the Medical Assessor provided adequate reasons for choosing to assess the WPI of the right lower extremity by reference to ankylosis. The Medical Assessor had decided that it was inappropriate to assess WPI on the basis of range of motion, however, assessments due ankylosis are used in cases where the workers have fractures and the fracture healed with bony ankylosis. In this case there was a sprain and no fracture, and this method of assessment was not, in the view of the Appeal Panel, appropriate. The Appeal Panel concluded that the failure to provide adequate reasons for choosing to assess the WPI of the right lower extremity by reference to ankylosis was an error.
In view of the inconsistencies in the assessment of concentration, persistence and pace, the Appeal Panel considered that it was necessary for Ms Taylor to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Medical Assessor Roger Pillemer re-examined the appellant on
15 January 2024. Medical Assessor Pillemer provided the following report:
“1. The workers medical history, where it differs from previous records.
Ms Taylor attended with her daughter today on Monday, 15 January 2024, and I read her the history as taken by the MA, Dr T Anderson at the time of his consultation on
29 August 2023. The previous history of injury was confirmed according to his original MAC of 20 November 2018, and the MA noted that when last seen Ms Taylor had been under the care of her pain management specialist, but that treatment had now ceased. There had been no further specialist management since the original consultation.
As far as the present treatment was concerned, Ms Taylor informed me that she is taking Cymbalta, Tramadol, Endone, Panadeine Forte, Nurofen, Panadol and B12 injections. She is also on medications for her post-traumatic stress disorder (PTSD) as well as medications for her thyroid and bowels.
The MA noted the extensive pain throughout her body mainly on the right side with significant restrictions, and this will be discussed below. The rest of the history taken was confirmed, and Ms Taylor informed me that she had stopped working on the day of her injury on 2 March 2017 and had not gone back to any gainful employment since then.
She is still very restricted with regard to social activities/ADL, and nothing had really changed.
2. Additional history since the original Medical Assessment Certificate was performed.
Ms Taylor was complaining of pain from the top of her head, going down her neck on the right side and involving her right shoulder and arm, and in fact the whole of the right side of her body including her right lower limb and into the toes of her right foot. Symptoms were described as being constantly present and ranging between 7-10/10 at all sites mentioned.
Her symptoms were aggravated by sitting or standing for long, or by heat, or any stress, or any attempt at using her right arm or her right leg. She did get some relief in the cold weather, particularly if it was under 20°C, but was unable to think of any other relieving factors.
Ms Taylor felt that her whole body was swollen, particularly the right side including her face and abdomen. She also feels that on occasions she is so ‘sweaty’ that the sweat is literally dripping off her.
On specific questioning she complains of pins and needles and numbness in the whole of the right side of her body. She intermittently gets cold and hot patches in her body, once again particularly on the right side.
Social Activities/ADL
Ms Taylor once again felt that she was very restricted and could only take a few steps unsupported, and for the rest of the time needed the support of her daughter.
She lives alone but on the same property as her daughter and her daughter informed me that she has to do everything for her mother including getting her in and out of bed, on and off the toilet, and even cutting up her food, and she will then feed herself using her left arm and hand.
Ms Taylor feels she is unable to do any activities using her right arm.
3. Findings on clinical examination
As noted, Ms Taylor has a very short-stepped gait, being supported by her daughter and having to stop every few metres. Her history was taken while sitting on a chair, and on direct examination there was very little movement of her cervical spine in any direction, not confirmed on numerous occasions during the consultation.
Ms Taylor keeps her right arm limply at her side and any attempt at movement of her shoulder caused significant discomfort with minimal flexion of her elbow region.
It should be noted that when I attempted to passively move her right shoulder, she would only allow a few degrees of movement because of her severe discomfort, but while doing this her right wrist was moved passively with a very good range of passive movement being present without any complaint of discomfort in the wrist region itself. The discomfort was felt in the shoulder at this stage.
On direct examination of the right wrist, she would not flex or extend this actively at all.
Ms Taylor was unable to exert any grip strength on the right side, and in fact when asked to make a fist, there was minimal flexion of her thumb or any of the fingers.
As far as sensation is concerned, Ms Taylor complains of virtual anaesthesia to pinprick of the whole of the right side of her body. Importantly there was no evidence of any wasting to circumferential measurement of her arms or legs.
As far as her lower limbs are concerned, while lying on the examination couch Ms Taylor would not allow me to flex her right knee beyond 10° because of the severe discomfort complained of, and yet when seated the knee was in 90° of flexion without any obvious discomfort. The knee itself was stable.
As far as Ms Taylor’s right ankle was concerned, there was no voluntary movement present and any attempt to passively move the ankle or subtalar joint was accompanied by significant complaints of pain and therefore this was not persevered with.
In addition to the sensory loss referred to above, there was no active range of movement of the right foot and ankle, and as mentioned no wasting to circumferential measurement.
Palpation anywhere on the right side of her body caused intense pain.
Results of any additional investigations since the original Medical Assessment Certificate
No further investigations have been carried out.”

The Appeal Panel has adopted the report and findings of Medical Assessor Pillemer. The Appeal Panel concluded from the findings on physical examination and observations made by Medical Assessor Pillemer concerning passive movements that there was a gross functional component present with exaggeration of physical signs.
In respect of the right wrist, Medical Assessor Pillemer found that there was a very reasonable range of passive movements without any complaint of discomfort, while Ms Taylor’s attention was distracted. There was no evidence of any muscle wasting.
The Appeal Panel did not consider that there was objective evidence of any real pathology in the right wrist.
Dr Bentivoglio, in his report of 20 April 2018, reported that plain X-rays of the hands in
March 2017 showed no evidence of any fracture and no signs of any osteoporosis.
Dr Bentivoglio wrote:
“She had normal alignment present in both her wrists and hands. She had a negative Phalen's test. There was no muscle wasting present in her forearms. There was no sign of any complex regional pain syndrome involving her hands. She had full rotation present in her forearms. There was no muscle wasting present involving her thenar, hypothenar or interosseous muscle groups. She demonstrated a range of movement present in her wrists of; left, flexion 50 degrees, extension 60 degrees, ulnar deviation 30 degrees, radial deviation 20 degrees. Right wrist; flexion 30 degrees, extension 35 degrees, ulnar deviation 20 degrees, radial deviation 15 degrees. There were no cardinal signs of CRPS on today's examination.”
A/Prof Hope in his report of 5 August 2022 made a diagnosis of bilateral wrist chronic sprain. On examination of the right and left wrists, he wrote: “There was moderate tenderness with range of motion of flexion 30°, extension 40°, radial deviation 20° and ulnar deviation 30°”.
A/Prof Leon Kleinman, in a report dated 23 January 2023, noted that on examination
Ms Taylor had a full range of movement in both wrists and no tenderness to palpation of the wrists. He considered that she had sustained soft tissue injuries to the wrist which should have resolved and was exhibiting “severe, non-organic pain behaviours”.
The Appeal Panel noted that the physical findings in respect of the right wrist on re-examination by Medical Assessor Pillemer were not plausible and were totally inconsistent with the impairment being evaluated in the right wrist. Under Paragraph 1.36 of the Guidelines, the impairment rating, therefore, had to be modified.
The Appeal Panel accepted that there was deterioration in the right wrist following the injury and Ms Taylor was diagnosed as having chronic pain but not CPRS. However, A/Prof Hope in his report of August 2022 found a very reasonable range of wrist movements bilaterally, and Dr Kleinman in his examination in January 2023 found ‘a full range of movement of both wrists’.
The Appeal Panel concluded that there was no residual organic finding with Ms Taylor’s right wrist noting the good range of movement which was not uncomfortable for her, and the absence of any muscle wasting. All clinical findings, for example the inability to flex her thumb or fingers more than a few degrees, were obviously non-organic. Medical Assessor Pillemer expressed the opinion that the clinical findings were all on a psychological basis, although he could not determine whether this was voluntary or involuntary.
In conclusion, the Appeal Panel decided that there was no ongoing organic problem with her right wrist the assessment of impairment in the right wrist was 0% WPI.
In respect of the right lower extremity, once again the clinical findings were inexplicable on an organic basis, particularly, for example, the minimal movement of her right knee on direct examination, whereas she did have 90° of flexion without any particular complaints of discomfort. Medical Assessor Pillemer was unable to assess the right foot and ankle as mentioned due to the lack of any movement, both actively or passively because of the complaint of discomfort. However, there was no muscle wasting and the clinical findings were all non-organic.
The only investigation of the right lower extremity was an MRI of right ankle on 20 June 2017 in which Dr Lawrence Josey reported a mid tarsal sprain.
The Appeal Panel concluded that in relation to the right knee there was no residual impairment, noting the very satisfactory range of movement observed indirectly and the absence of any wasting of her right thigh. The Appeal Panel also noted that Dr Bentivoglio, in his report of 20 April 2018, noted a good range of knee movements and A/Prof Leon Kleinman, in a report dated 23 January 2023 noted Ms Taylor’s knee to flex to 90° when seated, and then not being able to flex her knees when recumbent.
In his report of 2 February 2023, A/Prof Leon Kleinman noted that when he originally saw
Ms Taylor in August 2018 there was no complaint of any problems with her knees at that stage, nor was there any documentation of knee injuries at that time.
The Appeal Panel concluded that it is not possible to assess impairment of the right foot and ankle on the basis of range of movement as there was no movement, both actively or passively on a non-organic basis. It was also not possible to make an assessment on the basis of muscle wasting as there was no muscle wasting present. The Appeal Panel accepted that Ms Taylor has sustained a chronic sprain of the mid tarsal joint. Neither AMA 5 nor the Guidelines provide a figure of impairment for a mid-tarsal joint sprain, so an analogous or equivalent condition must be used for assessment of the right foot. Using the mid-foot, the assessment can be made on the basis of a moderate cavus deformity (Table 17-33 page 547 AMA 5) giving 3% WPI.
In summary, the Appeal Panel assessed 0%WPI in respect of the right wrist and 3% WPI in respect of the right foot. The Appeal Panel noted that the parties agree that the 3% WPI for the right foot would be combined with 8% WPI assessed for the lumbar spine in the previous assessment, which would combine to total 11% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 September 2023 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:	5280/18
Applicant:	Julie Anne Taylor
Respondent:	MH Management (NSW) 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 Tim Anderson 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)
1.Left upper extremity	02/03/17	Ch 2 p10	P 441 F 16-02	0	0	0
2.Right upper extremity	02/03/17	Ch2 p10	P 441 F 16-02	0	0	0
3.Left lower extremity	02/03/17	Ch 3 p13	Footnotes P541-2	0	0	0
4.Right lower extremity	02/03/17	Ch3 p13	p547 Table 17-33	3	0	3
Total % WPI (the Combined Table values of all sub-totals)					3%

[2024] NSWPICMP 41

29 January 2024