Mitchell v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 767
•3 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mitchell v State of New South Wales (NSW Police Force) [2025] NSWPICMP 767 |
| APPELLANT: | Stephen James Mitchell |
| RESPONDENT: | State of New South Wales (NSW Police Force |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 3 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); the appellant submits that the Medical Assessor erred in respect of his assessment of “loss of efficient use” of the left hand/wrist under the Table of Disabilities by failing to apply the correct test; the Appeal Panel agreed; evidence of ongoing symptoms justifying assessment; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 July 2025 Stephen James Mitchell (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
5 June 2025.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.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons we will set out below.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in respect of his assessment of “loss of efficient use” of the left hand/wrist under the Table of Disabilities by failing to apply the correct test, as required by the Workers Compensation Act 1987 (NSW) and the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines).
In reply, the respondent submits that no errors were made adding:
“The Appellant’s injury occurred on 16 June 1995 and the Appellant’s entitlement to section 66 of the 1987 Act for the injury to the left hand is to be assessed under the Table of Disabilities. The Workers Compensation Guidelines for the Evaluation of Permanent Impairment (5th Edition) do not apply when assessing a loss under the Table of Disabilities. The assessment required is under the Table of Disabilities, not the Table of Maims…
The MA did not fall into error in assessing the loss as 0% as a 0% loss can still be a proportionate assessment of the maximum loss as set out in the Table of Disabilities.”
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 appellant was referred to the Medical Assessor for assessment of Loss of efficient use of the right leg at or above the knee and Loss of efficient use of the left hand under the Table of Disabilities resulting from injuries on 16 June 1995.
The appellant does not challenge the Medical Assessor’s assessment with respect to the right leg.
The Medical Assessor obtained a history of the circumstances of the injuries which we do not intend to repeat here.
Present symptoms were noted as follows:
“For his left wrist, he has intermittent numbness in his thumb. If he bumps his thumb he gets a weird sensation. He has loss of function which can last for a few minutes or occasionally a day. He has pain over the dorso-ulnar aspect of his wrist.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition” the Medical Assessor said:
“I note in the supplied records that Mr Mitchell subsequently had further injuries to his left wrist which were attributed to his multiple injuries during self-defence training. He underwent an ulnar shortening operation in 2014 with removal of ulna plates in 2017. This procedure was attributed to a frank injury dated 19 August 2014.”
After setting out his findings on examination, the Medical Assessor then summarised the injuries and diagnoses as follows: “Mr Mitchell sustained an injury to his right leg and left wrist when he was hit by a car on 19 June 1995. He has had ongoing symptoms in his knee since the incident. He has also had ongoing symptoms in his left wrist but this has [sic] subsequently suffered further injury.”
The Medical Assessor assessed 0% WPI in respect of the left hand.
He explained his calculations as follows:
“With respect to the left hand, again there is full range of motion of the wrist, thumb and fingers assessed at examination today. Whilst Mr Mitchell intermittently has symptoms, there is no suggestion of compromised function. 0% loss of efficient use for the left hand is assessed.”
He then documented the other medical opinions and evidence and said:
“With respect to the report by Dr Ridhalgh dated 25 September 2023, I note he has assessed 15% loss of efficient use for the right knee. I believe this is excessive for the reasons given above. He has also assessed 15% loss of efficient use of the left thumb or hand. Again, I believe this is excessive for the reasons given above.
With respect to the report by Dr Rimmer dated 13 February 2024, I note he assesses 0% loss of efficient use for the right knee. I note he has assessed 0% for the right thumb, which I assume actually relates to the left thumb.”
The appellant’s submissions
These are as follows:
(a) the Table of Maims requires an assessment of the worker’s functional loss, not merely anatomical or structural loss;
(b) the worker has consistently reported symptoms in relation to the left hand/wrist;
(c) these symptoms are credible, consistent, and have a demonstrable impact on the worker’s ability to use the hand efficiently in daily activities and work;
(d) the Medical Assessor concluded that there was 0% loss of efficient use of the left hand/wrist, reasoning that “there is full range of motion of the wrist, thumb and fingers assessed at examination today. Whilst Mr Mitchell intermittently has symptoms, there is no suggestion of compromised function”;
(e) the Medical Assessor has placed undue weight on the absence of objective findings at the time of examination, to the exclusion of the appellant worker’s credible history of intermittent but significant symptoms;
(f) the Guidelines require that the assessment be based on the worker’s ability to use the affected body part in daily life, not just in a clinical setting;
(g) intermittent symptoms that result in functional loss must be considered, even if not present at the time of examination;
(h) the Guidelines state:
“The assessment should be based on the worker’s ability to use the affected body part in daily life, not just in a clinical setting. The assessor should provide a reasoned opinion, referencing the Table of Maims, the Guidelines, and the worker’s reported symptoms and limitations”, and
(i) in Drayton v Crossroads Motors Pty Limited Nos. Ca 40215/94; Cc 5460/92 Workers Compensation [1995] NSWSC 82 (17 October 1995) Mahoney JA states at p 21;
“the scheme is not limited to a total loss of a thing or the use of it. The Legislative scheme is extended by the terms of s68(1). That section provides for compensation for the proportionate loss of the thing or the use of the thing in question. It provides: ‘68 (1). If a loss suffered by a worker consists of the loss of a proportion (but not all) of a thing mentioned in the Table to this Division a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the worker is payable as compensation under s66’”.
The respondent’s submissions
These are as follows:
(a) the appellant’s injury occurred on 16 June 1995 and the appellant’s entitlement to s 66 of the 1987 Act for the injury to the left hand is to be assessed under the Table of Disabilities;
(b) the Guidelines eferred to by the appellant in paragraph 1 of the appellant’s submissions and subsequently, apply to assessment of whole person impairment and do not apply when assessing a loss under the Table of Disabilities;
(c) the assessment required is under the Table of Disabilities, not the Table of Maims as submitted in paragraph 2 of the appellant’s submissions;
(d) the Medical Assessor reported the appellant’s current symptoms of the left wrist and referred to supplied records which detailed the appellant’s further injuries to his left wrist on 19 August 2014 which were attributed to multiple injuries during self- defence training including the requirement to undergo ulnar shortening in 2014 and removal of ulna plates in 2017. The appellant has not argued that the Medical Assessor has incorrectly recorded the appellant’s symptoms and subsequent injuries;
(e) the Medical Assessor has provided his reasons for his assessment of loss of the left hand at paragraph 10 (b) finding that there was a full range of motion of the wrist, thumb and fingers and whilst the appellant intermittently has symptoms, there was no suggestion of a compromised function, and
(f) the Medical Assessor did not fall into error in assessing the loss as 0% as a 0% loss can still be a proportionate assessment of the maximum loss as set out in the Table of Disabilities and the Medical Assessor has provided his reasons for his assessment of the loss.
Discussion
The Panel agrees with the respondent’s submissions regarding the relevant legislation.
Having said that, we are required to determine any error by the Medical Assessor with respect to his assessment under the Table of Disabilities of “Loss of efficient use of the left hand.”
In his statement dated 8 August 2024, the appellant said:
“I was thrown across the car and injured my left hand when I hit the bonnet of the car or possibly the ground where I landed.
My thumb never got any better and never stopped hurting…
My thumb has given me pain ever since and is strongly arthritic. It aches in cold weather and feels weak.
I get pain if I lift anything heavy.
If I knock it, it gives me extreme shooting pain and remains very sore for days.
I have had to adjust my life to account for the pain and weakness in my left thumb ever since the accident.”
Mr Mitchell did not refer to the further injuries to his left wrist during self-defence training requiring surgery.
This is understandable since from a lay person’s perspective, the wrist is a distinct entity from the thumb.
However, movement of the thumb impacts directly on the wrist, hence the agreed referral for assessment of loss of efficient use of the left hand.
Clinical records from the Quakers Court Medical Centre include a consultation on
22 October 2013 where the entry reads: “Continued left wrist pain.” A referral to Dr Maniam was arranged.In a consultation on 19 November 2013 the entry records: “Still painful left wrist.”
These consultations clearly pre-date the injury in August 2014.
They also confirm that Mr Mitchell had chronic problems well prior to the August 2014 injury.
Those problems undoubtedly led to a loss of efficient use of his left hand.
The Medical Assessor clearly accepted that the appellant had ongoing symptoms in his left hand because he said:
“For his left wrist, he has intermittent numbness in his thumb. If he bumps his thumb he gets a weird sensation. He has loss of function which can last for a few minutes or occasionally a day. He has pain over the dorso-ulnar aspect of his wrist.”
He added: “Whilst Mr Mitchell intermittently has symptoms, there is no suggestion of compromised function.”
In short, there is ample evidence to support ongoing symptoms in the left hand.
It seems to us that the Medical Assessor’s assessment was affected by the occurrence of the subsequent injury such that, despite accepting ongoing symptoms, the Medical Assessor did not accept that they were related to the injury the subject of the referral.
We should add that we agree with the appellant that the Medical Assessor’s reasons were sparse to say the least. He simply said: “He has also had ongoing symptoms in his left wrist but this has [sic] subsequently suffered further injury.”
Having regard to all of the evidence we are of the view that an assessment of 10% loss of efficient use of the left hand is appropriate and consistent with the totality of the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 June 2025 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
Table 1 - Assessment in accordance with the Table of Disabilities for injuries received before 1 January 2002
Matter number: | W2287/25 |
Applicant: | Stephen James Mitchell |
Respondent: | State of New South Wales (NSW Police Force) |
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:
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of Injury | Total amount of permanent Proportion of % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Loss of efficient use of the right leg at or above the knee | 16/06/1995 | 5% | Nil | 5% |
| Left hand | 16/06/1995 | 10% | Nil | 10% |
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