RYTY (NSW) Pty Ltd v Swinfield
[2025] NSWPICMP 123
•26 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | RYTY (NSW) Pty Ltd v Swinfield [2025] NSWPICMP 123 |
| APPELLANT: | RYTY (NSW) Pty Ltd |
| RESPONDENT: | Graeme Swinfield |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 26 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal against Medical Assessment Certificate (MAC) on grounds of demonstrable error and incorrect criteria in assessment of respondent’s left upper extremity (left hand); respondent agreed with appellant that the Medical Assessor (MA) had erred in the application of Table 16-1 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); appellant and respondent agreed on correct assessment of whole person impairment (WPI) as a result of injury to the respondent’s left upper extremity; Appeal Panel agreed with parties’ submissions that the MA erred in assessment of respondent’s left upper extremity and with parties’ submissions as to correct assessment; MA did not err in assessment of TEMSKI scarring; Held – MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 November 2024, RYTY (NSW) PTY LTD (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 October 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 delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes - set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent, Graeme Swinfield, sustained injury to his left upper extremity (left hand) on 9 March 2022, when his hand was crushed in a letter press.
On 12 October 2023, the respondent made a claim on the appellant for permanent impairment compensation, pursuant to s 66 of the Workers Compensation Act 1987.
On 1 February 2024, the appellant’s insurer, EML, issued the respondent with a notice pursuant to s 78 of the 1998 Act.
The appellant disputed that the respondent’s whole person impairment (WPI) as a result of the injury was more than 10%, so the respondent was not entitled to permanent impairment compensation.
The respondent lodged an Application to Resolve a Dispute in the Personal Injury Commission on 16 April 2024. The respondent claimed permanent impairment compensation in respect of 11% WPI as a result of injury to his left upper extremity and TEMSKI (Table for the Evaluation of Minor Skin Impairment) scarring.
The appellant lodged its Reply on 7 May 2024.
As the only dispute between the parties was a medical dispute, the dispute was referred to a Medical Assessor, and Dr Honeyman was appointed to assess the respondent.
On 11 October 2024, Dr Honeyman issued a MAC in which he assessed the respondent’s WPI as 16%, comprising 15% WPI as a result of injury to the left hand, and 1% WPI for TEMSKI scarring.
The parties were provided with a copy of the Medical Assessor’s examination findings worksheet (worksheet) on 21 October 2024, having requested it on 16 October 2024.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination because there was sufficient evidence on which to make a determination, both parties submitted that a re-examination was not required, and the parties were in agreement on the outcome that should follow 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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
Appellant
The appellant submits the Medical Assessor erred in his assessment of impairment for the digits of the respondent’s left hand. These errors were in the Medical Assessor’s worksheet and his calculations for the range of motion and associated impairments for the fingers of the left hand.
With respect to the respondent’s left index finger, the appellant submits the Medical Assessor failed to provide an impairment percentage for proximal inter-phalangeal (PIP) flexion. The Medical Assessor’s assessment would equate to 6% impairment for PIP flexion.
Based on the Medical Assessor’s findings, the appellant submits the respondent had 16% digit impairment, which equates to 3% hand impairment, rather than 2% hand impairment, as found by the Medical Assessor.
With respect to the respondent’s middle finger impairment, the appellant submits the Medical Assessor failed to combine the impairments for the middle finger PIP flexion and extension, in accordance with AMA 5, par 16.1C (p 438). It appeared the Medical Assessor had added, not combined, these impairments. (Emphasis in original.)
The appellant submits the respondent had 39% left middle finger digit impairment, which equates to 8% hand impairment. The Medical Assessor had assessed 40% digit impairment, and 8% hand impairment.
With respect to the respondent’s left ring finger, the appellant submits the Medical Assessor erred in adding, rather than combining, the impairments for PIP flexion and extension, as required by AMA 5 par 16.1C (p 438). (Emphasis in original.)
The appellant submits that, based on the Medical Assessor’s examination findings, the combined assessment would equate to 39% for the ring finger PIP. (Emphasis in original.) The respondent’s digit impairment is 57%, which equates to 6% hand impairment.
The Medical Assessor had assessed 60% digit impairment, equating to 12% hand impairment.
The appellant submits that the Medical Assessor appears to have utilised the middle column of AMA 5 Table 16-1, which is for the index and middle fingers, when converting the respondent’s digit impairment to hand impairment for the ring finger. This resulted in a substantially higher assessment of hand impairment.
With respect to the respondent’s left little finger, the appellant submits the Medical Assessor failed to record the impairment for PIP flexion. Based on the Medical Assessor’s examination findings, his assessment would equate to 12% impairment of the little finger PIP flexion. When this was combined with the extension assessment, it would result in a digit impairment of 15% for the little finger PIP joint.
The appellant submits that, based on the Medical Assessor’s examination findings, the assessment for the respondent’s left little finger is 26% digit impairment, which equates to 3% hand impairment.
The Medical Assessor had assessed 15% digit impairment and 6% hand impairment.
The appellant submits that, again, the Medical Assessor appears to have utilised the middle column of AMA 5 Table 16-1 when converting his digit impairment to hand impairment for the little finger. This resulted in a higher assessment of hand impairment.
The appellant submits that the failure to properly apply AMA 5 Table 16-1 and par 16.1C is both a demonstrable error and a misapplication of AMA 5. As such, the assessment was based on incorrect criteria.
With respect to the incorrect application of AMA 5, the appellant submits, that, based on the examination findings, the Medical Assessor erred in his assessment of 16% WPI for the left hand and scarring.
The appellant submits the Medical Assessor has not combined the digit impairments for the respondent’s left index, middle, ring, and little fingers based on AMA 5 par 16.1C, and has instead added the impairments. (Emphasis in original.)
In respect of the respondent’s ring and little fingers, the appellant submits the Medical Assessor has not converted the digit to hand impairments correctly, resulting in a higher assessment of hand impairment for the ring and little fingers.
The appellant submits the Medical Assessor failed to provide his workings at the bottom of the worksheet, to justify how he reached his assessment of WPI.
The appellant submits the Medical Assessor appears to have based his assessment of 15% WPI for the respondent’s left hand on the following:
· total hand impairment = 28% hand impairment
· hand impairment to upper extremity impairment (UEI) = 25% UEI
· UEI to WPI = 15% WPI
The appellant submits the assessment of WPI should be as follows:
· total hand impairment = 20% hand impairment
· hand impairment to UEI = 18% UEI
· UEI to WPI = 11% WPI
The appellant submits the MAC should be revoked.
The appellant does not consider that a further assessment is required, as the Medical Assessor’s findings on examination are recorded, and the appellant does not take issue with the findings.
The appellant submits that, by properly applying the Medical Assessor’s findings, the Appeal Panel would be able to provide an accurate assessment of WPI.
Respondent
The respondent concedes the MAC contains a demonstrable error and/or a misapplication of Chapter 16 of AMA 5, and/or the Medical Assessor has applied incorrect criteria when assessing the appellant’s left hand.
The respondent concedes the correctness of the appellant’s assessment of WPI for the LUE (hand), not including TEMSKI scarring, which is as follows:
· total hand impairment = 20% hand impairment
· hand impairment to UEI = 18% UEI
· UEI to WPI = 11% WPI
The respondent submits the assessment of WPI for the LUE (hand), not including TEMSKI scarring, is 11%.
The respondent submits the Medical Assessor has not erred in his assessment of scarring and has applied the correct criteria when assessing scarring. The respondent agrees with the Medical Assessor’s assessment of TEMSKI scarring of 1% WPI.
The respondent submits the assessment of WPI for the LUE (hand) of 11%, together with TEMSKI scarring of 1%, combines to a total WPI of 12%.
The respondent submits the MAC should be amended to reflect 12% WPI.
The respondent does not consider that a further assessment is required, as the Medical Assessor’s findings on examination are recorded, and the respondent does not take issue with any of the findings.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Medical assessment certificate
As the parties agree that the MAC contains a demonstrable error, and incorrect criteria have been applied, it is unnecessary to discuss the MAC in detail.
Under “Summary” at p 3 of the MAC, the Medical Assessor has recorded:
“Summary of injuries and diagnoses:
Crush injury to all the fingers of the left (non-dominant) hand but not thumb. The most significant finding were [sic] (open) fractures to proximal phalanges of middle and ring fingers, which required internal fixation, followed at a later stage by tendon releases. No loss of sensations.”
Under “Reasons for Assessment” at p 4 of the MAC, the Medical Assessor has recorded:
“a. My opinion and assessment of whole person impairment:
The individual finger impairment[s] are converted to hand impairments using T16-1,
p 438. Combining the individual converted impairments results in 28% hand impairment. Table 16-2 p 439 converts [to] 25% UEI. T16-3 converts to 15% WPI.Scarring is refence [sic] to TEMSKI methods p 74 NSW guides. The scarring is on the dorsum of the fingers and is thin and faintly visible by colour contrast and some adhesions. Attention is drawn by the deformity of the hand. 1% WPI.
In making that assessment I have taken account of the following matters:
Review of the material provided and a detailed examination of the claimant.
b. An explanation of my calculations (if applicable):
See worksheet.
Worksheet/actual calculations attached?
Yes.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
Dr McGlynn has provided a copy of his hand measurements, while Dr Smith has omitted this detail and provided the WPI estimates without the detail [of] how he has completed the calculations. Both have relied on the good strength and functional assessments of the hand therapist.
Dr McGlynn converts his finger impairments to 18% hand.
Dr Smith has examined with 3 further months of therapy and notes greater range of movements. My measurements are closer to Dr McGlynn’s. My examination shows maintained flexion but reduced extensions of the damaged fingers.
d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.”
The Medical Assessor provided the following Table 2:
Body Part or system
Date of Injury
Chapter, page and paragraph number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Left upper extremity
09/03/2022
T16-21
p 461T16-23
p 463T16-25
p 46415
15
Scarring TEMSKI
09/03/2022
P74 T14.1
1
1
Total % WPI (the Combined Table values of all sub-totals)
16%
The appellant and the respondent agree that the Medical Assessor failed to properly apply Chapter 16 of AMA 5. The Medical Assessor applied incorrect criteria, and the MAC contains a demonstrable error.
The appellant and the respondent also agree that it is not necessary for the respondent to be re-examined, as the Medical Assessor’s findings have been recorded, and neither party takes issue with the findings.
Both the appellant and respondent submit, and the Appeal Panel agrees, that the correct assessment of WPI of the respondent’s left upper extremity (left hand), excluding TEMSKI scarring, is as follows:
· total hand impairment = 20% hand impairment
· hand impairment to UEI = 18% UEI
· UEI to WPI = 11%.
Neither party submits that the Medical Assessor erred in his assessment of TEMSKI scarring, which the Medical Assessor assessed as 1% WPI. The Appeal Panel notes that both Dr McGlynn, who was qualified by the respondent, and Dr Smith, who was qualified by the appellant, assessed 1% WPI for TEMSKI scarring.
When the assessment of 11% is combined with the assessment of 1%, the assessment of the respondent’s WPI is 12%.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 October 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: | W3036/24 |
Applicant: | RYTY (NSW) PTY LIMITED |
Respondent: | Graeme Swinfield |
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 (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Left upper extremity | 09/03/2022 | T16-21 p 461 T16-23 p 463 T16-25 p 464 | 11 | 11 | ||
| 2.Scarring TEMSKI | 09/03/2022 | P 74 T14.1 | 1 | 1 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
0