Regional Workforce Management Pty Ltd v Barrell

DETERMINATION OF APPEAL PANEL
CITATION:	Regional Workforce Management Pty Ltd v Barrell [2023] NSWPICMP 516
APPELLANT:	Regional Workforce Management Pty Limited
RESPONDENT:	Jayde Barrell
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	John Stephenson
DATE OF DECISION:	16 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal against Medical Assessor’s (MA) assessments of impairments in the respondent’s thumbs and fingers on the basis that such assessments were not covered by the referral; demonstrable error alleged; fresh evidence not admitted; error found on the basis that no formal claim had been made regarding any impairments in the respondent’s thumbs and fingers, and therefore there was no medical dispute regarding such impairments that could be determined by the MA; Queanbeyan Racing Club Ltd v Burton, Skates v Hills Industries Limited, Sakr v Merrylands Christian Preschool Association Inc, and Campbelltown City Council v Vegan considered; Held – Medical Assessment Certificate (MAC) revoked and new MAC issued removing the MA’s calculations regarding the impairments to the thumbs and fingers but otherwise applying the MA’s other assessments.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 July 2023, Regional Workforce Management Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the appeal). The medical dispute subject to the decision had been assessed by Medical Assessor Tim Anderson (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 4 July 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 MAC contains a demonstrable error.
The President’s delegate is satisfied that, solely on the face of the appeal, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and conducted a review of the original medical assessment, but limited to the grounds of appeal in relation to which the appeal is made.
The Appeal Panel is required to only address the subject matter of the grounds of appeal. 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 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.”
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 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 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.
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
1 March 2021 (the Impairment Guidelines) as it modifies the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant employed Jayde Barrell (the respondent) around June 2020. She is 25-years-old, and was employed by the appellant as a meat processor.
She sustained injuries during the course of her employment with the appellant on 26 October 2020, and she explains in her 31 January 2022 statement (at page 1 of her Application to Resolve a Dispute (ARD)):
“On 26 October 2020 I started work at around 5am, I was working in the Pack Off area and I was packing bags of navel cuts and short rib cuts into carboard boxes. I had been performing this role from the time I started until the first smoko break and then it was somewhere between 8:30am and 11am that both my wrists started to cause me pain, the pain was such that I knew I had to report the pain. I had not been experiencing this pain any time before this time…It is important to note that earlier on this morning, my supervisor ‘T’ had previously told me that the boxes I was packing were being rejected (further along the line) as the lids for the boxes were not fitting properly, and that I needed to push them down more. To push them down, it was necessary for me to apply pressure to the tops of the bags once they were placed in the boxes, I did this by placing the palms of my hands flat on the meat and pushing with straight arms down onto the meat. It was at a time when I was doing this, applying pressure to the top of the bags, that I felt a pop and a tingling sensation in my left hand (it was in the area of the centre of my palm), I also felt a shooting sensation up my right arm from my right hand. I did not know what these sensations were but they occurred immediately before I started feeling the pain in my wrists.”
The respondent then performed suitable lighter employment duties with the appellant until her employment with it was terminated on 11 November 2020.
In her 31 January 2022 statement, she advises that her treatment for her work injuries has included medication, physiotherapy, exercises, and cortisone injections into both her wrists. Surgery on both her wrists had also been suggested.
In a subsequent statement dated 18 May 2022 (at page 11 of the ARD), the respondent however advises that “although surgery has been proposed in the form of bilateral carpal tunnel surgery, I want to make it clear that I have decided not to undergo the surgery”.
By letter dated 2 December 2021 (at page 15 of the ARD), the respondent formally claimed lump sum compensation from the appellant, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). She relied upon an assessment of her whole person impairment undertaken by Dr Dryson and detailed in his report dated 20 December 2021 (at page 27 of the ARD). She claimed compensation for 21% whole person impairment for an injury described as “bilateral carpal tunnel syndrome”.
The appellant arranged for the respondent to be assessed by Dr Doig, who provided a report dated 19 April 2022 (at page 2 of the appellant’s Reply (Reply)). The doctor was not willing to provide an assessment as to the respondent’s whole person impairment as he did not accept that her condition had reached maximum medical improvement. The appellant advised the respondent in this regard by a notice dated 7 May 2022 (at page 17 of the ARD).
The respondent therefore lodged earlier proceedings (to the present ARD) with the Personal Injury Commission (Commission), and the Commission issued a referral to the Medical Assessor dated 17 June 2022, requesting that he assess the respondent's whole person impairment in relation to her 26 October 2020 date of injury, and specifying the body parts to be assessed as being the left upper extremity (wrist) and the right upper extremity (wrist). The referral can be found at page 19 of the ARD.
The resulting Medical Assessment Certificate dated 9 August 2022 (at page 20 of the ARD) found that the respondent “has not yet reached Maximum Medical Improvement since it is likely that she will have decompressive surgery to the carpal tunnels on each side”.
The respondent then signed a further statement dated 8 December 2022 (at page 14 of the ARD) confirming that she did not intend to proceed with carpal tunnel surgery.
The respondent then lodged these proceedings, and the Commission issued a further referral to the Medical Assessor dated 6 April 2023 and then amended on 3 May 2023. The referral requested an assessment of the respondent’s whole person impairment, specifying the body parts to be assessed as being the left upper extremity (wrist) and the right upper extremity (wrist).
The referral was amended following orders made by Member Karen Garner in the proceedings on 2 May 2023, during a preliminary conference. The Commission’s Certificate of Determination containing those orders reads as follows:
“1.     The applicant is to file and serve an amended Application to Resolve a Dispute (in terms of the Application to Resolve a Dispute in proceedings W3187/22), by 9 May 2023.
2.      The Reply to the Application to Resolve a Dispute is amended by deleting:
a. Report of Dr Paul Miniter dated 31 January 2023, and
b. Report of Dr Paul Miniter dated 23 February 2023.
3.      The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:      26 October 2020
Body parts:         Left upper extremity (wrist)
Right upper extremity (wrist)
Method:              Whole Person Impairment
4.      The previous referral to a Medical Assessor made in April 2023 is to be amended to state a date of injury of 26 October 2020.
5.      The materials to be referred to the Medical Assessor are to include:
a. The Amended Application to Resolve a Dispute and attachments;
b. The Reply to Application to Resolve a Dispute and attachments, with the exclusion of:
i. Report of Dr Paul Miniter dated 31 January 2023, and
ii. Report of Dr Paul Miniter dated 23 February 2023.”
The amended Application to Resolve a Dispute was lodged on 8 May 2023 and is the ARD referred to in this decision. The ARD claims permanent impairment compensation (pursuant to s 66 of the 1987 Act) in relation to the systems claimed of left upper extremity and right upper extremity. Under description of injury in the ARD, the respondent only refers to the following:
“Whilst in the course of employment on 26 October 2020, the Applicant had been undertaking the above duties. More specifically, she had placed her palms of her hands flat on the meat and pushed down with straight arms down. As she was undertaking this, and applying pressure to the top of the bags of meat, she felt a popping and tingling sensation in her bilateral wrists…As a result of the above, the Applicant felt immediate pain in her bilateral wrists and suffered the following injuries: 1. Bilateral Wrists… Alternatively, the Applicant suffered the following injuries: 1. Bilateral Wrists (aggravation)”.

PRELIMINARY REVIEW

The Appeal Panel has 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 not necessary for the respondent to undergo a further medical examination because it possessed sufficient evidence within the documentary evidence before it in order to be able to determine the appeal.
For the sake of completeness however, the Appeal Panel notes that attached to the respondent’s submissions were two articles (which were not available to the Medical Assessor). In order for these articles to be considered as evidence by the Appeal Panel, the respondent would have needed to have complied with cl 17 of Procedural Direction PIC7, and provided submissions regarding admitting fresh evidence. The respondent has not done so.
The Appeal Panel has therefore not considered the articles and determines them to be evidence that should not be received on the appeal.

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:
(a)    the ARD lodged on 8 May 2023 and attached documents;
(b)    the Reply and attached documents, save for the documents referred to in the Commission’s Certificate of Determination dated 2 May 2023 – see paragraph 19 above;
(c)    that Certificate of Determination issued by Member Karen Garner, and
(d)    the amended referral from the President’s delegate to the Medical Assessor dated 3 May 2023 – see paragraph 18 above.

Medical Assessment Certificate

The parts of the MAC issued by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
It is unnecessary to refer to the MAC in detail given the limited nature of this appeal.
The Medical Assessor (page 1 of the MAC) confirms that the body parts/systems referred for assessment are the left upper extremity (wrist) and the right upper extremity (wrist).
He then confirms (page 2 of the MAC) that the respondent does not wish to proceed with any carpal tunnel surgery. Her condition is managed with the use of medication, and she presented with pain in both her hands and wrists (affecting the little fingers less than the other digits), weakness of grip, numbness over both hands affecting all digits with associated tingling, as well as sleep disturbance.
The Medical Assessor examines the respondent and makes findings (page 3 of the MAC) regarding the range of movement in her wrists, thumbs and fingers. He comments that sensation was “reduced throughout all digits and was similarly dense in the ulnar distribution to the radial distribution”.
The Medical Assessor opines (page 4 of the MAC) that as the respondent does not wish to have surgery, her condition has now reached maximum medical improvement. He assesses her whole person impairment in the right upper extremity at 29%, and her whole person impairment in the left upper extremity at 30%.
He explains his calculations (page 5-6 of the MAC):
(a) in the right upper extremity, the respondent had 12% upper extremity impairment (UEI) for wrist impairment, 29% UEI for thumb and finger impairment, 20% UEI for a radial nerve condition, and 4% UEI for an ulnar nerve condition – equating to 49% combined UEI – and equating to 29% whole person impairment, and
(b) in the left upper extremity, the respondent had 14% UEI for wrist impairment, 29% UEI for thumb and finger impairment, 20% UEI for a radial nerve condition, and 4% UEI for an ulnar nerve condition – equating to 50% combined UEI – and equating to 30% whole person impairment.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The only finding by the Medical Assessor challenged by the appellant relates to his assessment of the appellant’s thumb and finger impairments in both upper extremities. There is no attempt by the appellant to challenge any other aspect of the MAC.
In summary, the appellant submits that the Medical Assessor “exceeded the terms of the referral by providing assessments of WPI for the respondent’s hands and fingers including her thumbs”. As a result, he “made a demonstrable error, or based his assessment by incorrect criteria, when he assessed the respondent’s hands and fingers including her thumbs”. The respondent primarily relied upon the Court of Appeal authority in Skates v Hills Industries Limited [2021] NSWCA 142 (Skates).
In reply, the respondent submits that:
(a)    Dr Dryson diagnosed the respondent with bilateral carpal tunnel syndrome and assessed impairment in relation to her left wrist, right wrist, and median nerve injury;
(b)    Dr Doig found neurological symptoms, including altered sensation in the atomic distribution of the median nerves and positive Tinel signs – he also looked for motor weakness in the respondent’s thumbs;
(c)    Having regard to Dr Dryson’s report, “it was without doubt implicit in that that the claim that is in dispute, as is to be referred to the MA and as were the intentions of the parties, was that relating to the 21% WPI assessment of Dr Dryson inclusive of both wrists and the neurological impairment arising from the same” – it is to be noted however that the appellant does not complain about the Medical Assessor’s assessment of the respondent’s impairment due to neurological deficit, only his assessment of the respondent’s fingers and thumbs;
(d)    the “medical condition” of the respondent “has always been bilateral carpal tunnel syndrome”, and although her injury “is technically to the wrist because that is the site of the compression of the median nerve, but the impairment resulting from that compression manifests from the wrist into the hand” – “carpal tunnel syndrome inherently causes sensory deficit to the thumb, index, middle and ring fingers as well as motor function to the thumb”;
(e)    the Medical Assessor correctly assessed “the medical condition of bilateral carpal tunnel syndrome as he was required in the referral” – he assessed “hand impairment arising ancillary to that condition”, and did not assesses a different injury or pathology – to assert that he should have ignored any hand impairment “is grossly antithetical to the objectives of the legislation”, and
(f)    Skates can be distinguished, particularly having regard to the decision of Garling SCJ in Sakr v Merrylands Christian Preschool Association Inc [2022] NSWSC 768 (Sakr) – it is asserted that the “fundamental medical dispute between the parties…has always been the degree of permanent impairment of the worker as a result of the bilateral carpal tunnel syndrome…as particularized in the workers letter of claim”.

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.
Clause 2.7 of the Impairment Guidelines provides as follows:
“The hand and upper extremity are divided into regions: thumb, fingers, wrist, elbow and shoulder. Close attention needs to be paid to the instructions in AMA5 Figures 16-1a and 16-1b (pp 436–37) regarding adding or combining impairments.”
The appellant’s complaint solely relates to the Medical Assessor assessing the region of the respondent’s thumbs and fingers, when such an assessment had not been specifically referred to him. Indeed, even though (as the respondent submits) her thumbs and fingers were affected by her carpal tunnel syndrome, there had not previously (prior to the Medical Assessor’s assessment) been any permanent impairment assessment made with regard to thumb or finger impairments. The respondent has made no formal claim in this regard.
The respondent’s letter of claim (see paragraph 13 above) attached Dr Dryson’s 20 December 2021 report, which did not assess the region of the respondent’s thumbs and fingers. The letter itself is also silent as to any reliance upon the respondent in relation to any impairments to her thumbs of fingers.
Section 281 of the 1998 Act is relevant in this regard and reads as follows:
“(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by--
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2) A claim must be so determined--
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.”
Under s 282(1) of the 1998 Act, the relevant particulars required include:
“(1) The ‘relevant particulars about a claim’ are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement on the claim--
(a) the injury received by the claimant,
(b) all impairments arising from the injury,”.

Also, pursuant to s 260 of the 1998 Act, a claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines (the Claims Guidelines). The current guidelines were published by the State Insurance Regulatory Authority on 1 March 2021, and they include cl 8.1.1, which provides:
“8.1.1 For injuries received on or after 1 January 2002
A claim for lump sum compensation must be accompanied by a report from a permanent impairment assessor listed on the SIRA website, for the body system(s) being assessed.
The assessor’s report must include:
·a statement about whether the condition has reached maximum medical improvement
·an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment)
·where the claim relates to hearing loss, a copy of the audiogram used for the medical report.”
Under s 319 of the 1998 Act, a medical dispute is defined as including:
“‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim--
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Importantly, a medical dispute can only occur once a claim (emphasis added) has been made, and a dispute arises in relation to any of the matters referred to in s 319.
A claim for lump sum compensation is only required to be determined once relevant particulars of it are provided. These relevant particulars include full details of all (emphasis added) impairments arising from an injury, and are required to be provided in accordance with the Claims Guidelines.
As such, the Appeal Panel does not believe that it is arguable by the respondent that she has provided any relevant particulars of any impairments to her thumbs and fingers, arising from her 26 October 2020 injury. There is simply no assessment of impairment at all to satisfy the requirements in s 282 of the 1998 Act and in cl 8.1.1 of the Claims Guidelines. The fact that there is medical evidence mentioning symptoms in the respondent’s thumbs and fingers does not solve the respondent’s problem that no particulars were provided as to the level of her impairments in these regions. Instead, the respondent relies upon Dr Dryson’s 20 December 2021 report, which does comply with the Claims Guidelines, but only assesses the respondent with regard to wrist impairment and associated nerve injury, but not impairments to the thumbs or fingers.
The appellant was only required to determine the claim made by the letter of claim insofar as it identified impairments (that is, the impairments found by Dr Dryson). A medical dispute can only arise therefore in relation to an impairment identified in the letter of claim that the appellant has either disputed or failed to make a decision in relation to.
The Appeal Panel therefore concludes that a medical dispute has not crystallised regarding the level of impairment in the respondent’s thumbs and fingers. Neither the respondent’s letter of claim nor the appellant’s response to that letter dealt with any such impairment. As Leeming JA stated in Skates at [44]:
“The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”
And at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
As a medical dispute regarding the level of impairment in the respondent’s thumbs and fingers had not crystallised, it was not possible for it to be the subject of a referral to the Medical Assessor.
Indeed, it was not the subject of any such referral. It was quite clear that the referral was in relation to wrist impairment. In this regard:
(a)    the Medical Assessment referral (see paragraph 16 above) dated 17 June 2022 in the earlier proceedings specifically referred to right upper extremity (wrist) and left upper extremity (wrist);
(b)    the Certificate of Determination in these proceedings (see paragraph 18 above) dated 2 May 2023 specifically referred to right upper extremity (wrist) and left upper extremity (wrist) – as did the Medical Assessment referral dated 3 May 2023 (see paragraph 19 above) and the Medical Assessor’s confirmation in the MAC (see paragraph 28 above), and
(c)    there is no mention in the ARD (see paragraph 20 above) of the respondent having any impairments to her thumbs or fingers – indeed, the description of her injuries in the ARD does not refer to her thumbs or fingers.
The respondent’s argument is essentially that the Medical Assessor was entitled to assess any impairments resulting from her bilateral carpal tunnel condition. She relies upon the following passages from Sakr:
“44. As I read the judgments in Skates (CA) of Basten JA and Leeming JA, as well as McCallum J in dissent, there would be appealable error even if the employer did not concede that the scope of the referral should have included the assessment of the claimant’s left wrist. This is because the scope of the medical dispute referred to the AMS is determined primarily by reference to the legal dispute between the parties evidenced by the Application to Resolve a Dispute and associated documents, and it would therefore be an error of law on the face of the record to, without notice or argument on the issue, limit the scope of the medical dispute by the strict terms of the referral.”
“48. However, that specific dispute as to diagnosis does not encapsulate the underlying medical dispute between the parties. In my view, the fundamental medical dispute between the parties, within the terms of s 319, has always been ‘the degree of permanent impairment of the worker as a result of [the] injury’, namely a ‘soft tissue injury to... [the plaintiff’s] right upper limb’ [emphasis in original]. The Panel concluded as much at paragraph 51 of its reasons.”
While the Appeal Panel notes that a Medical Assessor is not necessarily bound by the strict terms of the referral to him or her, there is a limit to the scope of the dispute that he or she is able to determine. That is apparent from the following further passages from Sakr, where Garling SCJ specifically refers to views expressed in Skates:
“40. Basten JA observed in Skates (CA) that the jurisdiction of the Commission is limited by reference to the claim for compensation submitted by the claimant. The scope of that claim is determined by the identification and description of the injury in the correspondence between the parties, the Application to Resolve a Dispute and the various medical reports enclosed with the Application: [27]‑[30].”
“42. In dissent, McCallum JA considered that the AMS was entitled to assess the degree of impairment of the whole of the left upper limb, including the shoulder, elbow and other fingers. That conclusion, however, seems to me to reflect a difference in the application of broadly similar reasoning to that employed by the majority, namely that ‘the medical dispute referred [by the Registrar to the AMS] must be the medical dispute the parties have sought to be resolved [emphasis in original], which is determined by reference to the claimant’s Application and the various medical reports: see [81]-[82].”
It is noted that neither the ARD, the medical evidence obtained by the parties, nor the respondent’s letter of claim make any mention of any impairments to the respondent’s thumbs and fingers that were assessed in accordance with the Impairment Guidelines.
The Appeal Panel rejects the respondent’s submission that the Medical Assessor was entitled to assess any impairments arising from her carpal tunnel condition. He was only entitled to assess those impairments that were subject to the relevant medical dispute between the parties. The scope of that dispute (in accordance with both Skates and Sakr) was evidenced by the correspondence between the parties and the relevant medical evidence relied upon by them, none of which referred to any claims being made or any assessments being undertaken regarding any impairments to the respondent’s thumbs or fingers.
The respondent may be correct in postulating that carpal tunnel conditions can cause thumb and finger impairments in accordance with the Impairment Guidelines. However, she had obtained no evidence of any impairments suffered by her in this regard (and she had therefore not been able to make any formal particularised claim for any such impairments) prior to her assessment by the Medical Assessor.
In the circumstances, the finding of the Appeal Panel is that the Medical Assessor was not entitled to assess any impairments in the respondent’s thumbs or fingers. He has therefore made a demonstrable error.
The Medical Assessor’s calculations as to the respondent’s whole person impairment (see paragraph 32 above) need to have removed from them the UEI which he attributed to the respondent’s thumbs and fingers. The revised calculations will therefore be:
(a) in the right upper extremity, the respondent has 33% combined UEI in accordance with the Combined Values Chart (at page 604 of AMA 5) – equating to 20% whole person impairment in accordance with Table 16-3 of AMA 5, and
(b) in the left upper extremity, the respondent has 34% combined UEI in accordance with the Combined Values Chart (at page 604 of AMA 5) – also equating to 20% whole person impairment in accordance with Table 16-3 of AMA 5.
Combining 20% whole person impairment with another 20% whole person impairment, by using the Combined Values Chart (at page 6004 of AMA 5), the respondent’s total whole person impairment will be 36%.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 July 2023 should be revoked, and a new MAC should be issued. The new MAC maintains the Medical Assessor’s unchallenged whole person impairment findings in relation to the respondent’s wrist impairment and impairment due to neurological deficit; but it removes the Medical Assessor’s findings in relation to the respondent’s thumbs and fingers; and it re-calculates the respondent’s total whole person impairment. The new MAC is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1894/23
Applicant:	Jayde Barrell
Respondent:	Regional Workforce Management Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor 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.Right upper extremity (wrist)	26/10/2020	Chapter 2 Page 10	Chapter 16 Figure 16-28 Figure 16-31 Table 16-15 Table 16-10 Table 16-3	20	0	20
2.Left upper extremity (wrist)	26/10/2020	Chapter 2 Page 10	Chapter 16 Figure 16-28 Figure 16-31 Table 16-15 Table 16-10 Table 16-3	20	0	20
Total % WPI (the Combined Table values of all sub-totals)					36%

[2023] NSWPICMP 516

16 October 2023