Smith v Crown Freighters Pty Ltd
[2025] NSWPICMP 232
•3 April 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Smith v Crown Freighters Pty Ltd [2025] NSWPICMP 232 |
| APPELLANT: | Tony Edward Smith |
| RESPONDENT: | Crown Freighters Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Tim Anderson |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 3 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) assessed in accordance with Table 17-10 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); scarring; whether MA appropriately assessed scarring in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 February 2025, Tony Edward Smith lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 January 2025.
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 Smith was initially employed by Crown Freighters Pty Ltd (the respondent) as a truck driver. In October 2022, his truck driving licence expired, and he began working as a yard manager.
On 23 February 2023, he was assisting a fellow employee (who happened to be the son of the boss) load bundles of steel onto the back of the truck. He was driving an excavator. The driver was distracted and began to move a bundle of steel, weighing approximately 2.5 tonnes, before Mr Smith could move out of the way. Mr Smith was hit by the excavator and the bundle of steel fell off, landing on his left leg.
Mr Smith proceeded to surgery (open reduction and internal fixation of the left tibial plateau). He spent a significant period of time in rehabilitation, as well as engaging in physiotherapy and hydrotherapy.
Through his solicitor, Mr Smith made a claim for lump sum compensation. He was initially assessed by Dr Pillemer on 30 October 2023, who at that time opined that Mr Smith had not reach maximum medical improvement. In a later report, dated 25 March 2024, Dr Pillemer was satisfied that maximum medical improvement had been reached and assessed 22% whole person impairment.
The insurer disputed the claim for lump sum compensation on the basis that maximum medical improvement had not been reached, based on opinions provided by Dr Woodbridge.
The matter proceeded to the Personal Injury Commission (Commission) and as there was no dispute as to liability, was referred to a Medical Assessor for an assessment of permanent impairment.
Medical Assessor Kuru issued a MAC assessing Mr Smith as suffering from 5% permanent impairment, comprised of 4% in the left lower extremity and 1% for scarring. The appellant appeals against both of those assessments and the MAC as a whole.
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 worker to undergo a further medical examination because there was sufficient information contained in the MAC to determine the appeal. It is noted that the appellant requested that he be re-examined by a member of the Appeal Panel, but for the reasons given below, in circumstances where no error is identified on behalf of the Medical Assessor, it is not appropriate to do so.
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.
In summary, the appellant submits that the Medical Assessor erred in his assessment of range of motion as he only considered flexion as part of his assessment, failing to include flexion contracture, per Table 17-10 of AMA 5. The appellant also challenges the Medical Assessor’s assessment of scarring, submitting that the Medical Assessor’s reasons indicate a greater whole person impairment should have been allowed for scarring, and in the alternative, the Medical Assessor has failed to provide adequate reasons in support of an assessment of 1% whole person impairment.
In reply, the respondent submits that the Medical Assessor has undertaken a thorough assessment and has reached a conclusion based on clinical evidence to support his findings. In respect of scarring, the respondent submits that the reasons of a Medical Assessor are not required to be extensive or in depth but detailed enough to show a path of reasoning for a decision. The respondent submits that the Medical Assessor provided adequate reasoning for the conclusion he reached.
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 this appeal, the appellant challenges the Medical Assessor’s assessment of range of motion of the right lower extremity and scarring. Accordingly, the Appeal Panel’s consideration of the matter is limited to those issues (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.
There are two grounds for appeal raised, one in respect of each body part referred for assessment. The Appeal Panel will consider each in turn.
The right lower extremity
In respect of this ground, the appellant submits that the Medical Assessor failed to consider flexion contracture in his assessment of Mr Smith’s knee.
The Medical Assessor applied the range of motion methodology when assessing Mr Smith’s knee. He provides the following findings on physical examination:
“Range of motion in the knee is from 0°-80°. The knee is coronally and sagittally stable. Quadriceps circumference is 60cm and symmetrical. Gastrocnemius circumference is 52cm on the right and 48cm on the left. The lower limbs distally are neurovascularly intact.”
He goes on to assess 4% whole person impairment and provides the following explanation of his calculations:
“Restricted flexion in the knee is assessed according to AMA-5, page 536, Table 17-10. On the basis of flexion being limited to 80°, 4% whole person impairment is assessed for restricted flexion.
According to SIRA, page 14, paragraph 3.14, 4% whole person impairment is assessable for 2cm atrophy of the calf. AMA-5, page 526, Table 17-2 does not allow the combination of assessment for range of motion and muscle atrophy. Hence, the higher impairment is selected.”
Figure 17-4 of AMA 5 provides a descriptor, including images, of how to measure knee flexion.
It is true that the Medical Assessor has not explicitly referred to flexion contracture (also known as extension) in his reasons. However, he has measured the range of motion in the knee in respect to that movement. He records a range from 0°-80°. The first figure represents flexion contracture, the second flexion. Based on Table 17-10, assessable impairment for flexion contracture begins at 5°, ascending up to 20°+. A range of motion of 0° represents a functionally normal knee, in terms of flexion contracture.
The assessment of the Medical Assessor is contrasted with that of Dr Pillemer, who provided a report for the appellant on which the claim is based:
“in my opinion he would be entitled to 10% lower extremity impairment for the lack of 5° of full extension of his left knee, and a further 41% lower extremity impairment for the reduced range of flexion of his knee”
It is noted here that Dr Pillemer has used “extension” of the knee, with a measured loss of 5°. This is the same as 5° flexion contracture and consistent with Table 17-10, attracts 10% lower extremity impairment. In comparison, Dr Woodbridge, who provided reports for the respondent, records a range of motion on 6 March 2024 of “0° to 115°” (which is noted would attract no whole person impairment) and then on 28 July 2024 of “10° to 40°”.
It is clear the Medical Assessor has appropriately measured the range of motion in Mr Smith’s knee. That measurement is recorded in the MAC and includes both flexion and flexion contracture. A measurement of 0° represents no restriction and thus no impairment in flexion contracture, as recorded by the Medical Assessor. A measurement of 80° is a restriction of less than 110° (but not less than 80°) and thus attracts 4% whole person impairment in accordance with Table 17-10 of AMA 5.
The Medical Assessor has not erred in his assessment of range of motion of the right knee.
Scarring
The appellant also challenges the Medical Assessor’s assessment of scarring. The Medical Assessor provides an assessment of 1% whole person impairment. This assessment is challenged on two bases – that based on the findings of the Medical Assessor, he should have found greater whole person impairment, and that he did not provide adequate reasons for his conclusion.
It is noted that there is somewhat of an inconsistency between the two submissions here – either the reasons are inadequate to reach any conclusion on impairment, or the reasons are sufficient but impairment should have been assessed higher.
In respect of the first ground (that the assessment should have been higher), it is noted that the assessment of impairment involves a degree of discretion. Assessment, in accordance with cl 1.6 of the Guidelines, “involves clinical assessment of the claimant as they present on the day of assessment”. Whilst Dr Pillemer found 2% whole person impairment on a different day of assessment, that is not binding on the Medical Assessor. Scars, in particular, improve over time which goes some way to explaining that difference of opinion.
The Medical Assessor provides the following findings on examination in respect of the scar:
“On examination, there was a 21cm scar over the proximal lateral lower leg consistent with surgical approach for open reduction and internal fixation for a tibial plateau fracture.”
He provides the following reasons for assessing 1% whole person impairment:
“Scarring - TEMSKI is assessed according to SIRA, page 74, Table 14.1. On the basis of there being some broadening and contour deficit of the scar, 1% whole person impairment is assessed for Scarring TEMSKI.”
It is clear based on the above that the Medical Assessor has viewed the scar, noted aspects of it relevant to assessment under TEMSKI, and recorded those findings. He has referred specifically to the appropriate criteria in the Guidelines. He has identified relevant findings that provide for an assessment of 1% whole person impairment (noting that in accordance with cl 14.6, “uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment”). It is clear that he thought that scars were not within the above criteria. In reaching his conclusion, the Medical Assessor has provided brief but adequate reasons, consistent with the requirement in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
The appellant suggests that the assessment should have been higher in accordance with Table 14.1 of the Guidelines. This submission cavils with the Medical Assessor’s clinical judgment and his observations of the scars on the day of examination. The Appeal Panel are satisfied that the Medical Assessor has applied the correct criteria in reaching his conclusion. The appellant’s submissions are not accepted.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 January 2025 should be confirmed.
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