Noonan v RJ & RJ Turner t/as Outback Building Specialists
[2024] NSWPICMP 809
•29 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Noonan v RJ & RJ Turner t/as Outback Building Specialists [2024] NSWPICMP 809 |
| APPELLANT: | Christopher Noonan |
| RESPONDENT: | RJ & RJ Turner t/as Outback Building Specialists |
| APPEAL PANEL | |
| MEMBER: | Gaius Whiffin |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Andrew Porteous Glozier |
| DATE OF DECISION: | 29 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against Medical Assessor’s (MA) assessment of permanent impairment on the basis that the MA erred in failing to have regard to the appellant’s left hip and left ankle surgeries, as well as updated medical evidence provided by him regarding his neck, back and both knees; error found in that the MA did not consider relevant and significant material; further medical examination conducted on behalf of the Appeal Panel by Dr James Bodel, and findings of Dr James Bodel adopted by the Appeal Panel and different to those of the MA; Campbelltown City Council v Vegan, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Prasad v Workers Compensation Commission, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, Wentworth Community Housing Limited v Brennan considered; Held – Medical Assessment Certificate revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 July 2024, Christopher Noonan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Peter Honeyman (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 8 July 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 President’s delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, but limited to the grounds of appeal on which the Appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 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).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by RJ & RJ Turner t/as Outback Building Specialists (the respondent) when he sustained injury on 7 July 2015. He was working at stockyards at Cobram, Victoria when he was struck from behind by a forklift. He injured his neck, his back, his left hip, his left foot and ankle, and both his knees.
The appellant claimed compensation from the respondent in relation to his injury, and the respondent accepted that it was liable to pay compensation in this regard, in accordance with the provisions in the Workers Compensation Act 1987 (the 1987 Act).
By an Application for Assessment by an Approved Medical Specialist (the Application) dated 21 July 2020 and lodged with the Workers Compensation Commission (now the Personal Injury Commission – the Commission), the appellant requested a medical assessment in relation to whether the degree of his permanent impairment was greater than 20%, in order to entitle him to ongoing weekly benefits compensation in accordance with s 39 of the 1987 Act. The respondent subsequently lodged its Response (the Response) to the Application.
The Application referred to the body parts to be assessed as – left lower extremity, right lower extremity, cervical spine, and lumbar spine. The Response did not submit otherwise.
Consent Orders were made in relation to the Application by Arbitrator Jane Peacock (as she then was) on 26 August 2020. Inter alia, a referral to an Approved Medical Specialist was ordered “to assess whether the degree of permanent impairment is more than 20% as a result of injury on 7 July 2015 to the left lower extremity, right lower extremity, lumbar spine and cervical spine”.
The appellant then attended upon Approved Medical Specialist Tim Anderson (as he then was), who issued a Medical Assessment Certificate dated 12 November 2020, in which he found that the degree of permanent impairments in the appellant’s left lower extremity and right lower extremity was not then ascertainable.
The appellant subsequently underwent left hip surgery on 21 December 2020 and on 11 March 2021, as well as left ankle surgery on 12 May 2022.
By way of a letter to the Commission dated 5 December 2023, the appellant then requested a further assessment of the degree of his permanent impairment. Attached to that letter was updated medical evidence (the appellant’s updated evidence) relied upon by the appellant. The updated evidence however was not attached to an Application to Admit Late Documents.
The respondent did lodge an Application to Admit Late Documents dated 25 January 2024 (the respondent’s second AALD) with the Commission, attaching updated medical evidence that it wished to rely upon.
By way of a referral dated 8 April 2024, the President’s delegate referred the assessment of the appellant’s “left lower extremity, right lower extremity, lumbar spine and cervical spine” to the Medical Assessor, sending him a brief which included the Application, the Response, and “late documents”. It is apparent from the MAC however that the “late documents” included the respondent’s second AALD, but not the appellant’s updated evidence.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination because the Medical Assessor had not considered the appellant’s updated evidence. That updated evidence included:
(a) medico-legal reports from Dr Pillemer dated 5 April 2022 and 4 May 2023;
(b) a report from the appellant’s treating pain specialist, Dr Chow, dated 10 October 2023;
(c) a radiological report in relation to the appellant’s cervical spine and lumbar spine dated 25 September 2023;
(d) clinical notes from Dr Randhawa – who performed left hip surgery upon the appellant on 21 December 2020 and on 11 March 2021;
(e) clinical notes from Dr Rooney – who performed left ankle surgery upon the appellant on 12 May 2022;
(f) clinical notes from Dr Khoo – who was providing ongoing treatment to the appellant for his bilateral knee injuries, and
(g) other clinical notes from Bondi Junction Medical Practice, MyHealth Bondi Junction, Dr Yu, and Dr Higgs.
In considering the appellant’s updated evidence, the Appeal Panel formed the view that the Medical Assessor had fallen into error in not considering “relevant and significant material” in the assessment of the degree of the appellant’s permanent impairment.
The Appeal Panel also formed the view that it was not itself able to determine the degree of the appellant’s permanent impairment without a further medical examination of him. It therefore exercised its power in accordance with s 324 of the 1998 Act to require the appellant to attend an examination with Dr James Bodel from the Appeal Panel on 7 November 2024.
A preliminary review certificate was issued by the Appeal Panel and provided to the parties. It informed the parties of the medical examination on 7 November 2024, and it also directed:
(a) the appellant to lodge an Application to Admit Late Documents with the appellant’s updated evidence, and
(b) the respondent to lodge an Application to Admit Late Documents with any documents provided by it to the Commission since 5 December 2023, except for those documents attached to the respondent’s second AALD.
Following the preliminary review certificate, on 25 September 2024, the appellant lodged the Application to Admit Late Documents (the appellant’s second AALD) directed. The respondent did not lodge any further Application to Admit Late Documents. The appellant then attended the 7 November 2024 medical examination ordered.
EVIDENCE
Documentary evidence
The Appeal Panel therefore now has before it the following documents and has taken them into account in making this determination:
(a) the Application and its attachments;
(b) the Response and its attachments;
(c) the appellant’s Application to Admit Late Documents dated 16 September 2020 (the appellant’s first AALD) and its attachments;
(d) the respondent’s Application to Admit Late Documents dated 19 August 2020 (the respondent’s first AALD) and its attachments;
(e) the appellant’s second AALD and its attachments, and
(f) the respondent’s second AALD and its attachments.
Medical Assessment Certificate
The parts of the MAC that are relevant to the Appeal are set out in the body of this decision. It is unnecessary however to refer to the MAC in detail given the limited nature of the Appeal.
In the MAC, the Medical Assessor confirms that he relied upon the documents “as listed in the referral from the Registrar” – see paragraph 15 above.
The history obtained by the Medical Assessor:
(a) does not include any mention of the three operations referred to at paragraph 12 above;
(b) in relation to the appellant’s left ankle, only refers to him undergoing multiple injections, pain management and physiotherapy;
(c) in relation to the appellant’s left hip, does not refer to any treatment undertaken save for radiological tests, and
(d) details ongoing complaints by the appellant of pain in both his feet and his left hip, as well as both his knees.
The Medical Assessor refers to examining only the appellant’s cervical spine, lumbar spine, hips, and knees. He refers to not having access to any recent radiology and advises:
“In the extensive notes I could find no further radiology, clinical notes, or opinions following Dr Anderson’s examination…This gap is important as within the history provided by Christopher, there was discussion that he was being proposed for possible hip and knee replacements.”
The Medical Assessor then proceeds to assess the degree of the appellant’s permanent impairments without assessing the appellant’s left hip or left ankle. He finds the appellant to have 7% permanent impairment in relation to the lumbar spine, 5% permanent impairment in relation to the cervical spine, 4% permanent impairment in relation to the left lower extremity, and 3% permanent impairment in relation to the right lower extremity.
Further medical examination
As noted at paragraph 21 above, Dr James Bodel of the Appeal Panel conducted an examination of the appellant on 7 November 2024 and has now reported to the Appeal Panel:
“1. The appellant’s medical history, where it differs from previous records
The MAC prepared by the Medical Assessor records a brief description of the original injury dated 7 July 2015. That history is essentially correct. He was ‘hit from behind by a forklift’. He was pushed forward into a gate where he was crushed by the forklift for a period of time. As a result, he injured his neck, his back and both his lower extremities, particularly his left hip, both his knees and his left foot and ankle.
The recorded history in the MAC then concludes the following:
‘The pain persisted. He [has had] a long succession of MRIs of knees, hips, back, left ankle with trial injections of steroids and has had a further arthroscopy of the left knee. He has had multiple injections on his left ankle and was put into an extensive period of physiotherapy. He has also, as the pain progressed, been put into a number of pain management programs.’
The Medical Assessor makes no mention of the surgical procedures which have been undertaken since the previous medical assessment done by Dr Anderson. These are detailed in the appellant’s submissions, on page 2 of the submissions, and they are as follows:
(a)a left hip labral reconstruction and arthroscopy on 21 December 2020 (Dr Sunny Randhawa);
(b)a left total hip replacement on 11 March 2021 (Dr Sunny Randhawa), and
(c)a lateral ligament reconstruction on the left ankle on 12 May 2022.
These treatment protocols do affect the level of assessable impairment in the left lower extremity and had not been taken into consideration, it appears, in the assessment done on 8 July 2024.
2. Additional history since the original MAC was issued
There is no real additional history, except the clarification of the correct history which was not recorded in the Medical Assessment on 8 July 2024.
The most important part in this regard is the referral to the three surgical procedures mentioned above, particularly the total hip replacement on the left side.
3. Findings on clinical examination
The appellant is 39 years of age. He is most uncomfortable sitting on a chair and rises very slowly, walking with a broad-based gait pattern and an unsteady gait on the left side in particular. I observed no measurable leg length inequality.
He has a restricted range of neck flexion, extension and rotation in all directions, and this is most restricted on rotation to the right. He has asymmetry of movement and guarding, and evidence of dysmetria.
Range of motion is 50% of the expected range on rotation and lateral bending to the right, and 80% of the expected range on rotation and lateral bending to the left. He therefore has asymmetry of movement and guarding, and dysmetria.
He also has asymmetry of back movement with a restricted range of lateral bending and rotation to the right, and again evidence of dysmetria, with 50% of the expected range of lateral bending and rotation to the right, and 80% of the expected range of lateral bending and rotation to the left.
Inspection of the lower limbs shows healed scarring over the anterolateral aspect of the left thigh in the region of the left hip, for the anterior left total hip replacement performed by Dr Randhawa on 11 March 2021.
I measured 1.2cm of wasting in the left thigh when compared to the right, measured 10cm above the superior pole of the patella on both sides, and 1.8cm of wasting in the left calf when compared to the right.
There is quite marked hypersensitivity in the anterolateral aspect of the left thigh in the distribution of the lateral cutaneous nerve of the thigh.
I note that Dr Pillemer in his assessment also observed that abnormality, and gave the full 2% lower extremity impairment, giving a grading of 0% in accordance with Table 16-10 on page 482 of AMA 5. The total grading is taken from Table 17-37 on page 552 of AMA 5.
He has a restricted range of movement as recorded in the table below:
Hip Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
90°
Extension
0°
0°
Adduction
30°
20°
Abduction
40°
20°
Internal Rotation
30°
20°
External Rotation
40°
20°
There is no restriction of knee movement. He has 0° knee extension and 120° knee flexion in both knees. There is no ligamentous laxity in either knee. There is tenderness over the medial joint line in each knee and he has had partial meniscectomies on both knees.
There is a slight restriction of ankle movement on the left side, where he has had the lateral ligament reconstruction. The ankle movement is as follows:
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
15°
5°
Plantarflexion
30°
30°
Inversion
30°
30°
Eversion
20°
10°
The left ankle is stable. There is no separate neurological abnormality in the lower limbs.
He complains of widespread numbness and tingling throughout the whole of the left leg, but it is principally in the distribution of the lateral cutaneous nerve of the thigh in the region of the anterolateral aspect of the thigh, and there are no objective signs of CRPS.
He has allodynia, which is to light touch, over the whole of the left leg but there is no hair loss and no nail changes or other trophic changes. There is no abnormal sweating pattern. There is no temperature differential between the left and right leg, and no colour change that I can observe today.
4. Results of any additional investigations since the original MAC was issued
There are no x-rays or other tests available.
I have not seen the post-operative x-ray of the left hip. I have seen the official report of the operative findings from Dr Randhawa which confirms that the total hip replacement was done on 11 March 2021, and at the time of that surgery, the implants were in satisfactory position.
5. Comment
There is assessable impairment in the left lower extremity, which is not properly assessed in the MAC prepared by the Medical Assessor.
I note in the appellant’s submissions that he is of the view that the ‘appellant submits all of the body parts referred for assessment ought to be re-assessed, in accordance with law, by a Review Panel.’ I have done that. I find the clinical findings in regards to the cervical spine and the lumbar spine are unchanged.
The previous assessment by Dr Anderson and the assessment by the Medical Assessor are correct and confirmed by Dr Pillemer, as being a DRE Cervical Category II level of assessable impairment with a 5% whole person impairment, and a DRE Lumbar Category II level of assessable impairment with a 7% whole person impairment, and that does not change.
In the right lower extremity, the appellant has had a partial meniscectomy in the right knee, and has no other rateable impairment in the right lower extremity, and that attracts 1% whole person impairment in accordance with Table 17-33 on page 546 of AMA 5.
In the left lower extremity, the appellant has had multiple assessments.
The total hip replacement is assessed using Table 17-34 on page 548 of AMA 5.
Left THR
a. Pain
20 points
b. Function
15 points
c. Activities
5 points
d. Deformity
4 points
e. ROM
3 points
Total
47 points
This places the total hip replacement in the ‘poor’ outcome for a total hip replacement in accordance with Table 17-33 on Page 546 of AMA 5, and that attracts a 75% lower extremity impairment.
In addition, the appellant has a 2% lower extremity impairment for the partial meniscectomy in the region of the left knee. He also has a 7% lower extremity impairment for restricted range of ankle dorsiflexion, and a 2% lower extremity impairment for restricted range of eversion in the ankle and subtalar joint, added to give a 9% lower extremity impairment for that joint.
The only other rating is the sensory loss for the lateral femoral cutaneous nerve, which is a 2% lower extremity impairment from Table 17-37 on Page 552 of AMA 5, as mentioned above.
The four individual ratings for the left lower extremity therefore are:
(a)75% for the hip joint for the poor outcome following a total hip replacement;
(b)9% for the ankle and subtalar joint from Table 17-11 and Table 17-12 on page 537 of AMA 5;
(c)2% for the partial meniscectomy from Table 17-33 on page 546 of AMA 5, and
(d)2% for the sensory loss in the distribution of the lateral cutaneous nerve of the thigh.
These four individual ratings are then combined using the Combined Value Charts on Page 604 of AMA 5 to give a 77% lower extremity impairment overall, and that converts to a 31% whole person impairment using Table 17-3 on page 527 of AMA 5.
The overall level of whole person impairment therefore is determined by combining:
(a)31% for the left lower extremity;
(b)7% for the lumbar spine;
(c)5% for the cervical spine, and
(d)1% for the right lower extremity.
There is a total of 40% whole person impairment in this case.”
SUBMISSIONS
Both parties have 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 fell into demonstrable error in not being cognisant of the surgeries undertaken by him as referred to at paragraph 12 above. The Medical Assessor also did not consider the appellant’s updated evidence. This constitutes error as:
(a) the appellant’s updated evidence is of significance in demonstrating that his clinical picture had changed since his original assessment by Approved Medical Specialist Tim Anderson;
(b) failure to have regard to the appellant’s updated evidence denied him natural justice – as he was clearly relying upon that evidence (it being attached to his solicitors’ letter to the Commission dated 5 December 2023);
(c) the Medical Assessment was not conducted appropriately as the appellant was denied procedural fairness by the appellant’s updated evidence being ignored, and
(d) there was a constructive failure to exercise jurisdiction.
The appellant also submits that the Medical Assessor assessed him on the basis of incorrect criteria as the Medical Assessor:
(a) did not assess him as he presented (by not having regard to the surgeries undertaken by him as referred to at paragraph 12 above) – necessary in accordance with cl 1.6 of the Guidelines;
(b) did not provide the MAC “based on all available medical information and results of investigations” – necessary in accordance with cls 1.42-1.51 of the Guidelines, and
(c) failed to assess his left hip impairment on the basis that he had undergone a total hip replacement – in relation to which, AMA 5 mandates the use of different criteria than the Medical Assessor used.
The appellant also requested that the Appeal Panel arrange a re-examination of him by one of its members.
In reply, the respondent submits:
“The respondent agrees with the submission from the appellant worker that the Medical Assessor has fell [sic] into error by failing to consider the three surgeries to the left lower extremity…The respondent seeks that the matter be remitted back to MA, Dr Honeyman to reassess the left lower extremity.”
FINDINGS AND REASONS
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 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, that is, those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated [at 35]:
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
In this case, the appellant’s updated evidence (see paragraph 17 above) included evidence relating to his cervical spine, his lumbar spine, and his bilateral knees, as well as his left hip and his left ankle. The error identified by the appellant of failing to have regard to this updated evidence therefore challenges the assessments made by the Medical Assessor of the permanent impairments in not only the left lower extremity, but also the cervical spine, the lumbar spine, and the right lower extremity.
As noted at paragraph 18 above, the Appeal Panel has come to the conclusion that the Medical Assessor fell into error in not considering “relevant and significant material”, being the appellant’s updated evidence. As that evidence included evidence relating to the appellant’s cervical spine, lumbar spine, bilateral knees, left hip, and left ankle, it was appropriate for Dr James Bodel of the Appeal Panel to re-assess not only permanent impairment in the left lower extremity, but also permanent impairments in the cervical spine, the lumbar spine, and the right lower extremity.
The respondent (while agreeing that the Medical Assessor fell into error – see paragraph 33 above) submitted that only a re-assessment of permanent impairment in the appellant’s left lower extremity was appropriate. However, the Appeal Panel rejects this submission for the above reasons relating to the appellant’s updated evidence including evidence relating to not just his left lower extremity.
The respondent also requested (see paragraph 33 above) that the Medical Assessor himself conduct the necessary re-assessment, but the Appeal Panel does not have the power to make such an order, once the Appeal has been referred to it by the President’s delegate. The Appeal Panel also notes that the respondent has not lodged any application for reconsideration (requesting a re-assessment by the Medical Assessor) in accordance with s 329(1A) of the 1998 Act, which is the appropriate method of requesting such a re-assessment by the Medical Assessor himself.
Although a Medical Assessor does not have to refer in a MAC to “every matter or thing that is germane or critical to an administrative decision” (per Harrison SCJ in Prasad v Workers Compensation Commission [2010] NSWSC 418), it is an error for a Medical Assessor not to consider “relevant and significant material”. As Adams SCJ found in Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2017] NSWSC 453 (Tattersall) (at [14]):
“Given the significance of the Medical Assessment Certificate by the Appointed Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and to dispose of applications by non-participatory decision making, a failure to consider relevant and significant material provided by one of the parties must be regarded as a significant error. Indeed, it seems to me that it amounts to a denial of natural justice.”
In Wentworth Community Housing Limited v Brennan [2019] NSWSC 152 (Brennan), Harrison ASCJ referred to Tattersall with approval and found that a Medical Assessor had fallen into error in that case, as follows (at [74]):
“In this current judicial review, it is fair to say that aside from the general statements in [2] and [9] of his decision, the AMS did not specifically refer to either the surveillance reports dated 27 August 2015 and 11 October 2016, or the social media reports dated 13 July 2015 and 12 September 2016. Nor has the AMS addressed Wentworth’s submissions on the inconsistent matters raised in the reports under the ‘History Relating to the Injury’ heading of the MAC. Wentworth had submitted that the material shown in these reports was inconsistent with what the first defendant stated in her initial statement. In her supplementary statement, the first defendant provided her response as to what was contained in media posts and surveillance. The AMS also did not refer to either the first defendant’s supplementary or latter statement in his reasoning. It appears that the AMS overlooked these reports, or failed to consider the relevant and significant material provided by the plaintiff.”
In the opinion of the Appeal Panel, it is clear from the MAC that the Medical Assessor did not consider the appellant’s updated evidence referred to at paragraph 17 above. The evidence is not specifically mentioned in the MAC, and in context, the extract from the MAC referred to at paragraph 26 above demonstrates that the Medical Assessor also did not appreciate that the appellant had undergone the left hip and left ankle operations referred to at paragraph 12 above. As a result, the Medical Assessor did not assess any permanent impairments in the appellant’s left hip or left ankle, and therefore did not utilise the correct criteria to assess the appellant.
The Appeal Panel finds the appellant’s updated evidence to be “relevant and significant material” of the type discussed in Tattersall and Brennan. It provides extensive details regarding the appellant’s left hip and left ankle operations, as well as his ongoing treatment for his bilateral knee injuries, and it required consideration by the Medical Assessor. Such consideration, in the opinion of the Appeal Panel, is critical to the correct assessment of the appellant’s permanent impairment as a result of his injury. The respondent makes no submissions to the contrary and in fact agrees that the Medical Assessor fell into error in this regard.
It is not however for the Appeal Panel to speculate regarding what the Medical Assessor would have done if he had considered the appellant’s updated evidence. The appellant needed to be re-examined in the light of that updated evidence.
Dr James Bodel of the Appeal Panel has conducted this re-examination, and reported to the Appeal Panel, as detailed at paragraph 28 above. The Appeal Panel has considered this report provided to it by Dr James Bodel and adopts the findings in the report. The findings were made with the benefit of the “relevant and significant material” found in the appellant’s updated evidence, and incorrect criteria was not therefore used in the making of the findings.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 July 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: | 4042/20 |
Applicant: | Christopher Noonan |
Respondent: | RJ & RJ Turner t/as Outback Building Specialists |
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 Peter Honeyman and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity | 17 July 2015 | Chapter 3 | T17-33, p546 T17-33, p546 T17-11, p537 T17-12, p537 T17-37, p552 | 31 | 0 | 31 |
| Lumbar spine | 17 July 2015 | Chapter 4 incl paras 4.34-4.35, p28 | T15-3, p384 | 7 | 0 | 7 |
| Cervical spine | 17 July 2015 | Chapter 4 | T15-5, p392 | 5 | 0 | 5 |
| Right lower extremity | 17 July 2015 | Chapter 3 | T17-33, p546 | 1 | 0 | 1 |
| Total % WPI (the Combined Table values of all sub-totals) | 40 | |||||
The above assessment is made in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021, for injuries received after 1 January 2002.
0
6
0