Quickturn Pty Ltd v O'Brien
[2024] NSWPICMP 621
•3 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Quickturn Pty Ltd v O'Brien [2024] NSWPICMP 621 |
| APPELLANT: | Quickturn Pty Ltd |
| RESPONDENT: | Grahame Douglas O'Brien |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Malcolm Linsell |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 3 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment to the skin as a result of allergy to chemical under Table 8-2 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th ed; worker was asymptomatic on the day of examination so that assessment in class 4 was inappropriate; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 May 2024 Quickturn Pty Ltd (Quickturn) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John Giles, who issued a Medical Assessment Certificate (MAC) on 15 April 2024.
Quickturn 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 was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, 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 – 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).
RELEVANT FACTUAL BACKGROUND
Mr O’Brien was employed by Quickturn as a labourer/machinist in early 2020 when he developed an inflammatory condition in the skin of his hands which spread to other parts of his body. His general practitioner diagnosed contact dermatitis and he underwent patch testing which revealed that he was allergic to benzisothiazolinone, a compound used as an industrial preservative.
The Medical Assessor assessed 60% whole person impairment (WPI), assessing Mr O’Brien in class 4 under Table 8-2 of AMA 5. He did so because the skin disorder signs are constantly present, there is limited performance of many of the normal activities of daily living, including intermittent confinement at home and Mr O’Brien may require intermittent to constant treatment.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr O’Brien to undergo a further medical examination because there is sufficient material in the file to determine the appeal.
Further evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
On 14 May 2024 Quickturn filed an Application to Admit Late Documents attaching a supplementary report from Dr Curtin dated 6 August 2023 which had been omitted from its Reply as a result of inadvertence by its solicitors. The report sets out Dr Curtin’s assessment of 18% WPI. Quickturn said that the document should be admitted because Mr O’Brien will suffer no prejudice, the substantive findings on which the assessment is based being in the main report.
Mr O’Brien objected to reliance on the report because he would suffer prejudice but did not develop that submission or identify the prejudice.
We have determined that Dr Curtin’s supplementary report should be received on the appeal. It does little more than to explain the assessment which had been the basis for Quickturn’s offer of settlement, which was in the file.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Quickturn submitted that the Medical Assessor’s assessment in class 4 was a demonstrable error, relying on a passage from Campbell J’s decision in Ferguson v State of New South Wales[1] (Ferguson) where his Honour said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[1] [2017] NSWSC 887.
Quickturn said that the Medical Assessor’s assessment in class 4 was a demonstrable error as contemplated by that passage because he was required to form a conclusion as to the criteria in Table 8-2 of AMA 5 being the presence of skin disorder symptoms and signs, limitation on the activities of daily living and the treatment required.
Quickturn also said that the Medical Assessor applied incorrect criteria because it was an error to say that the symptoms and signs of Mr O’Brien’s skin disorder were constantly present. The Medical Assessor said there was no evidence of the condition on the day of the examination. Quickturn said that the signs and symptoms were present or intermittently present so that assessment in class 1 to 3 was warranted. It said that the evidence supported the conclusion that there was limited performance of some activities of daily living and that there was no evidence of treatment after 13 September 2022.
In reply and in submissions prepared by Mr Hart of counsel, Mr O’Brien submitted that the Medical Assessor applied a clear and unambiguous reasoning process and explained that he assessed him in class 4 which requires confinement at home. He said that the statement of reasons was consistent with authority.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
The MAC
[3] [2021] NSWCA 304 at [26].
After describing the injury the Medical Assessor said:
“In January 2021, Mr O’Brien saw, Dr Neil MacPherson, a general practitioner with an interest in dermatology, and he diagnosed a contact dermatitis. He was subsequently referred to a dermatologist, Dr Lior Sagi, who conducted patch testing and found that he was allergic to Benzisothiazolinone, a compound which is used as an industrial preservative. He has also developed allergies to many other materials such as adhesives, fabric softener, laundry detergents, stain removers and antiseptics.
He has been treated with corticosteroids, ultraviolet B light therapy and methotrexate, an immune suppressing agent, but he has found it best to avoid contact with irritating agents; however, that now means, he rarely leaves his home. A friend shares his home with him and he does the shopping and most of the housework, although Mr O’Brien does some of the cooking. He wears loose fitting clothes which, after they are washed, he washes again in plain water. He no longer goes fishing, which was his major hobby, even though he lives on the edge of Lake Macquarie and has his own boat.
He now sees a psychologist once a week and he has just started attending a men’s group.
• Present treatment: Mr O’Brien manages to keep his condition under control by basically not leaving his home and avoiding contact with anything which can exacerbate his condition.
• Present symptoms: Mr O’Brien was asymptomatic when he consulted me, but this was only because he had effectively cut himself off from most activities and contact with other people.”
Setting out his findings on examination, the Medical Assessor said:
“Mr O’Brien was a pleasant, co-operative man of stated age. He was wearing very loose fitting clothes and there was now no evidence of his skin condition, not on his hands, face, limbs or trunk, but this is only because he has effectively become a hermit.”
The Medical Assessor assessed 60% WPI and said:
“In making that assessment I have taken account of the following matters: In my opinion, Mr O’Brien’s contact dermatitis has caused a Class 4 impairment because the skin disorder signs are constantly present and there is limited performance of many of the normal activities of daily living including intermittent confinement at home and he may require intermittent to constant treatment.”
The Medical Assessor commented on the assessments made by Dr Curtin who was retained by Quickturn and Dr McGlynn, who saw Mr O’Brien at the request of his solicitors:
“Dr Curtin has provided an excellent and comprehensive report; however, he did not provide an impairment assessment.
Dr McGlynn saw Mr O’Brien almost eighteen months before I assessed him and things may have deteriorated during that time. Whilst Dr McGlynn’s report is perfectly adequate, I strongly disagree with his impairment assessment, which I believe is unnecessarily harsh. He assessed his impairment as having caused only a Class 2 impairment but he has not made any allowance for the fact that Mr O’Brien is now effectively confined to his own home and, because of this, he has, by definition, a Class 4 impairment.”
The Medical Assessor was unaware that Dr Curtin had assessed Mr O’Brien in class 2 with 18% WPI and that his assessment was less than that of Dr McGlynn who assessed 24% WPI.
Treating doctors’ reports
Mr O’Brien made a statement on 30 January 2024, much of which was a list of “the things I am allergic to”. He described the clothing he now wears and said that he washes all clothing in baby wash and again in fresh water. He said he cannot stay anywhere unless he takes his own linen. He said that he is depressed and cannot enjoy his past recreations of fishing and bow hunting and does not leave his house unless necessary.
Mr O’Brien continued to work after initial treatment by Dr Macpherson. He saw Dr Sagi, dermatologist, for the first time on 6 April 2021 who undertook testing. On 7 May 2021 Dr Sagi determined that testing was positive for benzisothiazolinone, a widely used chemical preservative and recommended that Mr O’Brien avoid it completely.
In June 2021 another chemical known as mass finishing chemical 1730 was implicated and Mr O’Brien was referred back to Dr Sagi.
On 11 August 2021, Dr Boyd, general practitioner, wrote to Quickturn’s insurer, noting that Mr O’Brien has been on citalopram, an antidepressant, since before 2018 and his condition had been aggravated by dermatitis. Dr Boyd referred Mr O’Brien to Dr Bhandari, a psychiatrist.
Dr Macpherson continued treatment and by 2 August, Mr O’Brien’s hands had full skin integrity but he had some sensation issues at the pads. Dr Macpherson was concerned for Mr O’Brien’s mental state.
In September 2021 Dr Sagi noted that Mr O’Brien was avoiding benzisothiazolinone but still had flare ups on his hands, face, legs and nipples which Dr Sagi said was compatible with dermatitis. On 29 November 2021 Dr Macpherson said that Mr O’Brien’s hands were in good shape but he was avoiding most things to the detriment of his mental state, experiencing boredom and frustration.
In January 2022 Dr Sagi noted that Mr O’Brien had flare ups on his medial thighs which he attributed to certain textiles. Dr Sagi said that Mr O’Brien was fit to return to a job which did not involve friction his hands or contact with chemicals such as a driver or meter reader.
Soon afterwards, on 21 January 2022, Dr Macpherspon wrote:
“The hands and groin are clear of rash at the moment, I am concerned about Grahame’s mental state, he is clinically depressed and is not leaving the house as he becomes fearful that ‘something will happen’, The issue Is that the substance he is allergic to Is in many substances and if he comes into contact with it he is concerned that his hands will return to the way they were when they were at their worst, Grahame feels at times that life is not worth living, but he does get some enjoyment with his grandchildren. I am concerned that he spends his days lying on a mattress on the floor al his home. The stress of the work cover issues and the need for employment are playing on Grahame. I will monitor him, your ongoing care is greatly appreciated.”
On 25 March 2022 Dr Macpherson wrote two reports. In a report addressed to whom it may concern, he said that the rash was quiescent because Mr O’Brien was not leaving the house and that with any exercise he develops a rash in the groin and behind the knees. He suggested that a report from Dr Sagi would be warranted to determine if any particular material for trousers would have a different effect. In the second report to Mr O’Brien’s general practitioner, Dr Macpherson said that there was no rash because Mr O’Brien was not doing anything except sitting at home watching television.
In June 2022 Dr Macpherson wrote that Mr O’Brien still had issues with friction and heat and that he was reluctant to leave home which was affecting his mood and weight.
On 9 September 2022, Dr Sagi said that Mr O’Brien’s last flare up was six months before when he cleaned his garage. He attributed flare ups on his legs which he attributed to wearing jeans and used medication to decrease the rash. Dr Sagi recommended trying different trousers which were looser and made of a different material and said that Mr O’Brien should be exempted from any uniform requirements once he found them. A few days later, Dr Macpherson said that the allergies were inhibiting Mr O’Brien from going out and interacting. Dr Macpherson stressed the need to mobilise and exercise.
Even though the Application to Resolve a Dispute was not filed until February 2024, there is no further evidence from Mr O’Brien’s treating doctors in the file and no evidence as to any treatment was provided for his psychological condition.
Medico-legal reports
Mr O’Brien saw Dr McGlynn who reported to his solicitors on 15 December 2022. Dr McGlynn diagnosed allergic contact dermatitis caused by benzisothiazolinone. He said that the condition had improved since stopping work and avoiding chemicals but it had not resolved and flares up intermittently. He said:
“The Guides direct use of AMA5 Table 8-2, page 178 to classify the skin impairment. The scarring seen at this assessment and caused by the work accident is Class 2 as there is skin disorder signs and symptoms present, and there is limitation in performance of some ADL, and intermittent to constant treatment is required. The range is 10%WPI to 24%WPI.
In my opinion his allergic contact dermatitis is at the upper end of Class 2 and causes 24%WPI.”
Dr Curtin reported to Quickturn’s insurer on 6 August 2023. He recorded that Mr O’Brien was prone to flare ups and that being hot aggravated his condition. He avoided direct sunlight but was able to bathe in salt water. Dr Curtin noted that Mr O’Brien saw his psychologist once a week and was due to spend three weeks at an alcohol rehabilitation unit. Dr Curtin said that the localised dermatitis in Mr O’Brien’s groins was typical of tinea cruris rather than being related to contact dermatitis. He observed evidence of ongoing mild chronic dermatitis affecting his hands, abdomen, inner thighs and feet, which was consistent with a diagnosis of persistent post occupational contact dermatitis. Dr Curtin said:
“I am broadly in agreement with the findings and opinions expressed by Dr McGlynn. His methodology with regard to the assessment of WPI is entirely correct. He initially refers to the Workers Compensation Guidelines (paragraph 14.2 and subsequently 14.3) and notes that the Guidelines require the assessor to refer to AMA5 table 8-2 which provides the criteria for rating permanent impairment due to skin disorders. The table refers to 5 classes of permanent impairment which are determined by three components, namely signs and symptoms of skin disorders, limitations in the activities of daily living (ADLs) and the requirement for treatment. The classes are largely separated by the extent to which ADLs are affected by the skin condition and Dr McGlynn clearly refers to and works through those ADLs which are listed in
table 1-2 in AMA5. With a diagnosis of persistent contact dermatitis, it follows that Mr O’Brien is prone to flareups of the condition which would restrict his ADLs in various ways. Presumably Dr McGlynn has been presented with evidence (he does not list the documents sent to him) which supports his conclusions that ADLs have been significantly restricted to the point that he qualifies for the maximum impairment available in the Class 2 category (24% WPI), but not so restricted that it would fall into the Class 3 category where ‘many’ ADLs are restricted by the skin condition.”Dr Curtin said that it was difficult to reach a conclusion as to the veracity of the impact on his activities of daily living and that the lack of oversight by a dermatologist and vagueness about topical medications tended to undermine his claim that he was afraid to leave the house.
In his second report, Dr Curtin repeated the latter statement and said:
“With regard to ‘self-care and personal hygiene’, Mr O’Brien’s claims of restriction on the type of clothes that he could wear was supported by the fact that when he was presented for the assessment, he was in fact not wearing any underwear, and was wearing only a T-shirt and shorts. Without further evidence, it is not possible to accurately assess his claims of restricted activity, such as being unable to leave his house and go fishing . It is possible that when flareups occur he is so restricted, but on the other hand the evidence for chronic dermatitis was less apparent on this assessment than the findings reported in the medical examinations carried out in 2022 and 2021.
It is likely that he suffers from an alteration in sensory function due to intermittent pruritus, and it is also likely that there is some disturbance to his sleep for the same reason.
In the absence of any documentation to support his claims of restricted ADLs, in my view his impairment falls towards the middle of the range of the Class 2 category at 18% WPI.”
Consideration
The passage in Ferguson on which Quickturn relied is not a definition of a demonstrable error. In Vannini v Worldwide Demolitions Pty Ltd[4] Gleeson JA said:[5]
“…, s 327(3)(d) requires that such an error be ‘contained’ in the certificate; that is, the error must be apparent in the certificate of the approved medical specialist. Importantly however, there is no express limitation on the material to which the Panel may have regard when assessing whether the certificate ‘contains’ a demonstrable error.”
And:
“That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales:
‘The concept of “demonstrable error” is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error “on the face of the record” for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word “demonstrable” does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error’.”
[4] [2018] NSWCA 324.
[5] At [78].
We have had regard to that definition in determining that the Medical Assessor made a demonstrable error. It requires us to consider the evidence from Mr O’Brien’s treating doctors that we have set out above.
The skin is assessed under Chapter 14 of the Guidelines. Paragraph 14.4 says:
“AMA5 Table 8-2 (p 178) provides the method of classification of impairment due to skin disorders. Three components – signs and symptoms of skin disorders, limitations in ADL and requirements for treatment – define five classes of permanent impairment. The assessing specialist should derive a specific percentage impairment within the range for the class that best describes the clinical status of the claimant.”
Table 8-2 provides:
“Table 8-2 Criteria for Rating Permanent Impairment Due to Skin Disorders*
Class 1
0%- 9% Impairment of the Whole Person Class 2
Class 2
10%-24% Impairment of the Whole Person Class 3
Class 3
25%-54% Impairment of the Whole Person Class 4
Class 4
55%-84% Impairment of the Whole Person Class 5
Class 5
85%-95% Impairment of the Whole Person
Skin disorder signs and symptoms present or intermittently present
and
no or few limitations in performance of activities of daily living; exposure to certain chemical or physical agents may temporarily increase limitation
and
requires no or intermittent treatment.
Skin disorder signs and symptoms present or intermittently present
and
limited performance of some activities of daily living
and
may require intermittent to constant treatment
Skin disorder signs and symptoms present or intermittently present
and
limited performance of many activities of daily living and
may require intermittent to constant treatment
Skin disorder signs and symptoms constantly present
and
limited performance of many activities of daily living, including intermittent confinement at home or other domicile
and
may require intermittent to constant treatment
Skin disorder signs and symptoms constantly present
and
limited performance of most activities of daily living, including occasional to constant confinement at home or other domicile
and
may require intermittent to constant treatment
*The signs and symptoms of disorders in classes 1, 2, and 3 may be intermittent and not present at the time of examination. Consider the impact of the skin disorder on the ability to perform activities of daily living (see Table 1-2) in determining the class of impairment. Consider the frequency and intensity of signs and symptoms (ie, severity) and the frequency and complexity of medical treatment when selecting an appropriate impairment percentage and estimate within any class (see Introduction).”
The activities of daily living in Table 1-2 of AMA 5 are self-care and personal hygiene, communication, physical activity, sensory function, non-specialised hand activities, travel, sexual function and sleep. The examples for physical activity are “standing, sitting, reclining, walking, climbing stairs.”
The Medical Assessor was required to assess Mr O’Brien as he presented on the day of the examination.[6] Paragraphs 1.24 and 1.25 deal with the activities of daily living:
“Many tables in AMA5 (eg in the spine section) give class values for particular impairments, with a range of possible impairment values in each class. Commonly, the tables require the assessor to consider the impact of the injury or illness on activities of daily living (ADL) in determining the precise impairment value. The ADL which should be considered, if relevant, are listed in AMA5 Table 1–2 (p 4). The impact of the injury on ADL is not considered in assessments of the upper or lower extremities.
The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports.”
[6] Guidelines paragraph 1.6.
In making his assessment, the Medical Assessor was required to consider only the injury referred to him, being the assessment of the skin, and to disregard Mr O’Brien’s psychological condition.
Each of the classes in Table 8-2 require an assessment of the extent of signs and symptoms, the impact on the activities of daily living and the need for treatment. The use of “and” means that all of the relevant criteria must be present for assessment in a particular class.
In section 8.1, AMA 5 directs the Medical Assessor:
“To determine the appropriate impairment class (Table 8-2) for an affected individual, evaluate the severity of the skin condition and the impact of the skin condition on the ability to perform activities of daily living (see Table 1-2). Determine the appropriate percentage within any impairment class by considering the frequency, intensity, and complexity of the medical condition and the treatment regimen. In general, the more frequent and intense the symptoms, signs, and medical treatment, the higher the estimated impairment rating within any impairment class. Table 8-2 lists the impairment classes and percents of whole person impairment for all dermatologic disorders. …”
The Medical Assessor recorded that Mr O’Brien keeps his condition under control by staying home and avoiding contact with anything which can exacerbate his condition. As a result, Mr O’Brien was asymptomatic. The note to Table 8-2 confirms that the signs and symptoms of the condition may not be present on the day of the examination for classes 2 to 3. Assessment in class 4 requires that the signs and symptoms be constantly present, meaning that they must be present on the day of the examination. That means that assessment in class 4 was not open to the Medical Assessor because the signs and symptoms of the disorder were not present, even though Mr O’Brien confines himself to his home. Assessment in class 4 was a demonstrable error.
Classes 2 and 3 are differentiated by the impact of the condition on the activities of daily living – class 2 applies where there is limited performance of some activities and class 3 where there is limited performance of many. Table 1-2 does not apply to every aspect of daily life nor to the consequences of Mr O’Brien’s psychological condition.
The evidence shows that Mr O’Brien has some limitations as a result of that condition. The only objective evidence as contemplated by paragraph 1.25 of the Guidelines are short reports from Mr O’Brien’s treating doctors. There is no functional assessment.
Dr Macpherson was concerned about Mr O’Brien’s mental state in 2022 and stressed the need to mobilise and exercise. The inference to be drawn from that advice is that Dr Macpherson considered that Mr O’Brien was not prevented by his skin condition from doing so. In his reports dated January and September 2022, Dr Sagi considered that Mr O’Brien was not prevented from returning to some employment.
Based on those reports, there is an impact from the skin injury on some of Mr O’Brien’s activities of daily living.
The third factor to be considered is the extent of treatment required. Classes 2 to 5 all apply when intermittent to constant treatment is required. The note under Table 8-2 directed the Medical Assessor’s attention to the frequency and complexity of treatment when selecting a percentage in the relevant range.
The last reports from Mr O’Brien’s treating doctors are dated in September 2022. Mr O’Brien did not describe any active treatment to the Medical Assessor and it appears that he does not require any other than maintenance of his skin. Dr McGlynn said that oral prednisone may be required if the condition flares. The last reference to that treatment in the file is six months before Dr Sagi’s consultation in September 2022.
We agree that Dr McGlynn and Dr Curtin were correct to assess Mr O’Brien in class 2. While it was pertinent for Dr Curtin to observe that there was limited documentation to support Mr O’Brien’s claim that his activities of daily living were impacted, there is relevant support in the contemporaneous reports from Drs Macpherson and Sagi. Considering the steps that Mr O’Brien has undertaken to control the frequency of symptoms and signs of his condition and the impact on the activities of daily living, assessment at the high end of class 2 is appropriate. We assess 24% WPI.
For these reasons, we have determined that the MAC issued on 15 April 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: | W1519/24 |
Applicant: | Grahame Douglas O'Brien |
Respondent: | Quickturn 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 John Giles 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) |
| Skin | 21.12.22 | Chapter 14 | Chapter 8, Table 8-2, Table 1-2. | 24% | Nil | 24% |
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
0
3
0