Salvatucci v Westcast Pty Ltd
[2025] NSWPICMP 622
•19 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Salvatucci v Westcast Pty Ltd [2025] NSWPICMP 622 |
| APPELLANT: | Luke Salvatucci |
| RESPONDENT: | Westcast Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 19 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of scarring; application of criteria for assessment of TEMSKI; Medical Assessor failed to provide adequate reasons to explain conclusions reached under Table 14.1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); scars considered as a whole; clause 14.6 of the Guidelines does not supersede Table 14.1; Held – MAC revoked; scarring assessed at 1%. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 January 2025, Luke Salvatucci (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 December 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
Mr Salvatucci was injured on 28 February 2022, when he was cutting plywood with a bench saw. The blade grabbed the timber and his hand was dragged into the blade. After eventually being transferred to Sydney for treatment, he underwent an amputation of approximately 15mm of the left thumb. He came to further surgery.
Mr Salvatucci made a claim for lump sum compensation of 12% whole person impairment. Mr Salvatucci was then assessed by an independent medical assessor for the respondent, who assessed 10% and then 9% whole person impairment, which are both below the threshold for an entitlement to lump sum compensation.
The appellant then commenced proceedings in the Personal Injury Commission (Commission) and was referred for an assessment before a Medical Assessor. A MAC was issued on 17 December 2024, certifying Mr Salvatucci as suffering from 10% whole person impairment. That assessment was appealed by Mr Salvatucci, bringing the matter before the Appeal Panel.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel were satisfied that the MAC contained a demonstrable error. The Medical Assessor failed to adequately explain his reasons, or consider aspects of the appellant’s history, in respect of his assessment of scarring.
Three attempts were made to undertake the re-examination. The first was scheduled on 26 March 2025. The appellant failed to attend on that occasion, without explanation. The assessment was then scheduled for 28 May 2025. The appellant was unable to attend on that occasion due to flooding. The assessment was then rescheduled to 30 July 2025, where the appellant finally attended.
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.
Further medical examination
Tommasino Mastroianni of the Appeal Panel conducted an examination of the worker on 30 July 2025 and reported to the Appeal Panel.
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.
In summary, the appellant submits that the Medical Assessor failed to thoroughly assess scarring and disfigurement of the left index finger and thumb, inadequately applied the Guidelines and AMA 5, provided insufficient reasons for reaching his conclusion of 0% for scarring, and denied the appellant procedural fairness, by preventing the appellant from presenting critical evidence.
In reply, the respondent submits that the appellant fails to explain how the criteria under TEMSKI has not been considered. The respondent disagrees with the appellant’s assertions that the Medical Assessor failed to consider relevant matters, as he was provided with the relevant information and evidence to come to his assessment. The respondent submits that reasons are not required to be detailed but sufficient to show a path of reasoning for a decision. The respondent submits that adequate reasons have been provided.
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. The appeal concerns the Medical Assessor’s assessment of scarring and the consideration of the appeal is therefore limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
Although a minor component of the overall claim in dispute, the issue of scarring in this case represents the difference to Mr Salvatucci receiving any compensation at all. That is because he sits on the threshold of entitlement of 10%, and claims he should have been assessed 1% higher.
Scarring, like all assessments of impairment, is to be conducted in accordance with the Guidelines, which adopt AMA 5 in most cases. Chapter 14 of the Guidelines is the assessment of skin disorders, and includes scarring as part of the criteria in that chapter. Minor skin impairments are assessed under Table 14.1, using the table for the evaluation of minor skin impairment (TEMSKI). There are a number of other criterion that must be considered in determining scarring assessments. Clause 14.5 provides:
“The skin is regarded as a single organ and all non-facial scarring is measured together as one overall impairment, rather than assessing individual scars separately and combining the results.”
In present circumstances, that is relevant, as Mr Salvatucci has scars on his wrist, thumb, and index finger. Accordingly, those scars must be considered together, as one overall impairment. Whilst each individual scar may be relatively minor, considering them individually could lead to an underestimation of the impairment arising.
Clause 14.6 provides:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
The Medical Assessor refers to this clause, obliquely, on page 4 of the MAC, where he states:
“Scarring (TEMSKI) is assessed according to SIRA, page 74, Table 14.1 on the basis of the scars being well healed and without complication with no trophic change or contour deficit: 0% WPI was assessed for Scarring (TEMSKI).”
It is important to recognise, however, that cl 14.6 does not supersede Table 14.1. It provides explanation that uncomplicated scars do not, of themselves, rate impairment. Table 14.1 must still be considered and applied in the circumstances. This circumstances of this case, involving a traumatic amputation to the top of Mr Salvatucci’s thumb, beg the question of whether this is a scar from a “standard surgical procedure”. It is accepted that some of Mr Salvatucci’s scarring arises from the surgical procedures that followed from the amputation (including grafts from the wrist area, explaining his wrist scars). However, some of the scars arise from the initial amputation. Regardless, Table 14.1 must still be considered.
The Guidelines also provided for how Table 14.1 is to be used, by the principle of “best fit” (cl 14.8):
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.”
This clause also includes a specific obligation to provide reasons. This must be read in conjunction with s 325 of the Workplace Injury Management and Workers Compensation Act 1998.
The appeal challenges the Medical Assessor’s assessment of scarring on a number of bases, to do with his application of the Guidelines as well as the reasons he provides for his assessment of 0% scarring.
The Medical Assessor’s reasons for assessment are set out at [24] above. There, the Medical Assessor describes the scars as being “well healed and without complication”, and then provides descriptors of the scars (no trophic change or contour deficit). There are two aspects of these reasons, that the Appeal Panel are satisfied show demonstrable error. The first is they are sparse and are insufficient to show the path of reasoning to a standard to determine whether there is an error (see State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, applying Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43).
The second is that it is difficult to tell, from those sparse reasons, whether the Medical Assessor has appropriately applied the Guidelines. Reference is made to some aspects of Table 14.1 (trophic change and contour deficit). There is no reference to contrast, the position of the scar, how it affects ADL. This is particularly in circumstances where the appellant, in his statement, describes the effect of the scarring (as opposed to the injury to the finger/thumb itself, including a callus, pain (particularly in winter), sensitivity, and scarring under the nail bed). It is impossible to tell, from the Medical Assessor’s reasons, whether those issues have been considered.
In light of the above, the Appeal Panel determined that the MAC contained a demonstrable error. In order to determine the appeal, consistent with the preliminary review, the Appeal Panel called for Mr Salvatucci to be examined by a Medical Assessor member of the Appeal Panel. That examination occurred on 30 July 2025 and the report is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W25054/24 |
Appellant: | LUKE SALVATUCCI |
Respondent: | Westpac Pty Ltd |
Examination Conducted By: | Tommasino Mastroianni |
Date of Examination: | 30 July 2025 |
1. The workers medical history, where it differs from previous records
The history recorded by the Medical Assessor on 17 October 2024 was confirmed by the claimant. He has had no further treatment.
2. Additional history since the original Medical Assessment Certificate was performed
He was asked about present treatment and the claimant states that he is not on any treatment for his hand injury. He takes Lyrica for back pain, an unrelated injury.
Present Symptoms
He complains of numbness in the index finger from the mid distal phalanx to the tip of the finger affecting both the radial and ulnar digital nerves. He says because he cannot feel, this interferes with activities and dexterity of the hand. He says the finger doesn’t bend normally.
Regarding the thumb he says the tip of the thumb where it meets the nail is sore whenever he applies any pressure. He says the nail is deformed it is “beak” shaped and he has to keep it trimmed otherwise it grows into the stump.
He points to the scar on the volar aspect of the index finger and said there is numbness around the scar. He said scars in the forearm disrupt the tattoos and he is conscious of the scars and it reminds him of the accident.
He says he has problems making a fist and doing fine tasks due to the injury and has lost dexterity due to loss of sensation and restricted movements of the thumb and index finger.
3. Findings on clinical examination
On the dorsum of the forearm there is a fine pale scar 4cm x 1.3cm which curves at the end. The scar disrupts a dark tattoo and it is noticeable.
On the volar aspect of the forearm there is a 7cm scar with a width ranging from 2mm to 1mm. It is a pale scar and it disrupts a dark tattoo making the scar very obvious. There is a 2.5 cm transverse scar connecting the distal third of the vertical scar also disrupting the tattoo.
Inspection of the thumb reveals shortening of the thumb by 1cm. There is beak deformity of the nail and there is tethering of the nail stump, and pressure on the tip of the stump causes pain. He says his thumb looks more like a toe because of the deformity of the nail.
He has normal sensation in the thumb.
In the index finger there is transverse partial sensory loss from the mid distal phalanx to the tip of the digit. The metacarpophalangeal joint and PIP joint extend normally and flexes to 90°. The distal joint extends to 0° and there is no flexion.
My clinical findings regarding restricted movements of the injured digits, the numbness in the index finger and the partial amputation of the thumb, are the same as that assessed by the Medical Assessor.
Regarding the scarring the claimant has multiple scars which were assessed under the best-fit principle of the TEMSKI classification.
Under the best fit principle of the TEMSKI classification the scarring best fits the descriptors for 1% WPI. (The claimant is conscious of the scars as they disrupt the tattoos on his forearm. The scarring colour contrasts with the surrounding skin which is covered by tattoos. The claimant is able to easily locate the scars, there are minimal trophic changes in the scar in the index finger, no suture marks were visible, and the anatomic location of the scars is usually visible when not wearing long sleeves. There is adherence in the scar under the deformed nail of the thumb and pressure causes discomfort. There is negligible effect on ADLs, and no treatment is required).
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.”
The Appeal Panel agree with and adopt the findings made by the Medical Assessor on re-examination. Under the “best fit” categorisation, applying the criteria in Table 14.1 of the Guidelines, Mr Salvatucci’s scarring is assessed at 1%.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 December 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: | W25054/24 |
Applicant: | Luke Salvatucci |
Respondent: | Westcast 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 Rob Kuru 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 upper extremity (thumb & index finger) | 28/2/22 | P 443 T 16-4 | 10% | 0 | 10% | |
| Scarring (TEMSKI) | 28/2/22 | Ch 14, T 14.1 | 1% | 0 | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
0
4
0