Sullivan v Warrigal Care

DETERMINATION OF APPEAL PANEL
CITATION:	Sullivan v Warrigal Care [2025] NSWPICMP 473
APPELLANT:	Sullivan
RESPONDENT:	Warrigal Care
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Dr Roger Pillemer
MEDICAL ASSESSOR:	Dr Tim Anderson
DATE OF DECISION:	1 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the left lower extremity and lumbar spine; left lower extremity of 0% whole person impairment (WPI) challenged on appeal by the worker on the basis of inadequacy of reasons and application of incorrect criteria; Appeal Panel could not discern error; the Medical Assessor (MA) has assessed on the basis of correct criteria on the basis of MA’s examination findings upon which they are entitled to rely; MA reasoning was adequately explained; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 March 2025 the worker Hope Sullivan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr You-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
11 February 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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.
The appellant requested that she be re-examined by a Medical Assessor who was also a member of the Appeal Panel. However, as a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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.

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.
The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·   Date of injury:  19 April 2019
·   Body parts/systems referred:     Lumbar Spine
Left Lower Extremity (knee)
·   Method of assessment:              Whole Person Impairment”

The Medical Assessor issued a MAC certifying permanent impairment as follows:

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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre- existing injury, condition or abnormality (expressed as a fraction)	Sub- total/s % WPI (after any deductions in column 6)
1.	19	Page 28	Table 15-3	7%	0	7%
Lumbar	April	section 4.34
Spine	2019
2. Left	19	0%	0%
Lower	April
Extremit	2019
y (knee)
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					7%

The worker appealed.
There is no complaint on appeal about the assessment for lumbar spine. The appeal concerns only the assessment of 0% whole person impairment (WPI) for the left lower extremity (knee).
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error.
In summary, the respondent employer Warrigal Care (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied. The MAC must be read as a whole to determine whether adequate reasoning has been provided.
The Medical Assessor recorded the following history: (emphasis in original)
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
She started to work in the age care industry with that company in 2017. She suffered an injury at work on the 19 April, 2019. She was assisting a male patient for showering and the patient fell onto her and crushed her between the wall and the chair inside the shower room for quite a period of time. She noticed pain in the back together with pins and needles of the left lower limb. She had trouble to bear weight and walk properly and she was sent to emergency department and had some scans and was discharged home without any abnormalities. She noticed that the left lower limb was not strong and numb in feeling she re-attended the emergency department three days later. Once again nothing major was found. She was then under the care of the family doctor, five days later, after the Easter holiday and had all sorts of investigations including x-ray and MRI of the thoracic spine and the lumbar spine. She was referred to see neurosurgeon Dr Peter Moloney with a first review six weeks later on the 31 May, 2019, for the management of the back pain. As the MRI, x-ray, everything did not show any significant abnormality but the patient presented to be numb in the whole left leg and weak together with very poor straight leg raising so Dr Peter Moloney referred her on to do the Nerve Conduction Study and EMG which was ultimately done six months later in November, 2019 which showing the whole left lower limb has decrease sensation and dysesthesia. Other than that the neurophysiological study was all normal. Hence she was informed by Dr Peter Moloney that surgery was not required nothing significant was injured and she was not reviewed by him anymore afterwards. Because she complained of pain in the hip a MRI scan of the hip was also done together with x-ray and CT scan. All these were done after a year from the injury. She was referred to see orthopaedic surgeon
Dr Ihsheish as the MRI scan in July, 2020, was suggestive of stress fracture of the femoral neck. With that MRI scan finding she was initially recommended to be non-weight bearing and gradually touch weight bearing and partial weight bearing. She told me altogether she was on crutches and not walking properly for six months. It seems ultimately that diagnosis of stress fracture was excluded. She has not seen any other specialists and obviously has not seen any other doctors either including her GP recently.
·    Present treatment:
She tries to take it easy. She does Yoga and tries not to take medication as there is side effect from all the medications.
·    Present symptoms:
Her main concern is the sensation difference of the left lower limb. She says the front of the leg from the hip all the way down to the foot has pins and needles and the back of that leg has lost feeling altogether. There is pain in the back from the mid thoracic region just around the lower border of scapular to the pelvis on the left side. Sometimes associated with some stiffness. She can sit down to drive for about one hour. She said to come to consultation today took about two hours driving and she has to stop and rest twice in the whole trip. On a good day she can walk without trouble but once or twice in a week she will have difficulty so on the whole she can only walk between half to one hour.
·    Details of any previous or subsequent accidents, injuries or condition: She declined any previous or subsequent accident, injuries or condition.
·    General health:
She is in good health. In childhood she had appendix and tonsils removed.
·    Work history including previous work history if relevant:
She is now back to work in age care but she is doing very light duties for the last three months. There is no heavy physical work and she is doing sixteen hours per week.
·    Social activities/ADL:
She has trouble because of the back and the funny feeling in the left lower limb.”
The Medical Assessor made the following comment in relation to special investigations:
“MRI Thoracic spine and lumbar spine 30 April, 2019: Normal
MRI Lumbar spine 29 July, 2019: Normal
Bone scan 1 August, 2019: Normal
MRI Left hip 23 July, 2020: Suggestive of grade 2 stress fracture of femoral neck.
MRI Left hip 2 March, 2021: Still suggestive of stress fracture.
CT scan Left Hip 29 October, 2020: No stress fracture.
X-ray Left hip 29 October, 2020: Normal
X-ray Left hip 23 July, 2020: Normal
Nerve Conduction Study and EMG 15 November, 2019: Normal but there is decreased sensation and dysesthesia in the whole of left limb.”
The Medical Assessor conducted an examination and recorded his findings as follows:
“She still demonstrates to me to be limping with antalgic gate on the left side. The back movements is [sic] not too bad. Forward flexion she can touch the lower part of the shin, extension and sideward flexion everything good. She complained of pain in the left side of the back from the mid thoracic to the lumbosacral area with some degree of muscle spasm.
Straight leg raising is full on the right side and on the left is 50˚. I cannot find any neurological deficit. Reflex is symmetrical, normal on both sides, motor power there seems to be some global weakness of the whole left lower limb compared to the right side. On tape measurement being right handed both the right thigh and the right calf is only 1cm bigger than the left consistent with right side being dominate which means there is no obvious muscle wasting on the left. I cannot see any colour difference, temperature difference or soft tissue trophic change. Examination of both hips showing symmetrical and equal movement similarly for both knees there is no loss of movement and no ligamental laxity or tenderness.”
The Medical Assessor summarised the injury and diagnosis as follows:
“● summary of injuries and diagnoses:
Hope Sullivan had a crushing injury confined in an odd position causing back pain and neurological symptoms of the left lower limb from work. She is left with residual functional problems of the left lower limb in terms of sensation loss and residual low back pain.
· consistency of presentation
I believe the consistency of clinical presentation to the history of the injury.”
The Medical Assessor explained that in making his assessment he has taken into account the following:
“I base my assessment of whole person impairment on detailed history taking, careful physical examination, review of all the radiological investigations and medical reports in her file.”

He explained his reasons for assessment as follows:
“My opinion and assessment of whole person impairment
I believe she has reached maximum medical improvement. Injury was nearly six years ago and condition has been static for a long while. She has residual back pain with mild stiffness and then funny neurological symptoms of the left lower limb.
An explanation of my calculations (if applicable)
To assess the permanent impairment I believe using AMA Guide 5^th Edition Table 15-3 she be a case of DRE lumbar category II. She has muscle pain and asymmetric loss of movement mainly with some restriction of forward flexion. There is definitely no radiculopathy. Motor power, reflex, muscle size they are all normal. Even though patient complains of sensory difference, which she says is pins and needles on the front and no feeling on the back but its from the top to the bottom, it does not fit into any dermatome. All the assessments by treating specialist Dr Peter Moloney and various doctors in the medical legal assessment failed to pick up any radiculopathy. Certainly the normal MRI scan as well as neurophysicological study also speak against radiculopathy so this is a case of lumbar category II. It was unfortunate that she initially diagnosed as a stress fracture of the femoral neck and then has been on limited weight baring for a long period time which ultimately was not confirmed with the diagnosis and that probably caused her to be deconditioned for quite some time. Today on examination the hip and knee are all normal so there will be no permanent impairment relating to those regions. In relation to the difficulties with activities of daily living using WorkCover Guide 4^th Edition Page 28 Section 4.34 I think a 2% extra so altogether she will have a 7% whole person impairment.”
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“I think I concur with Dr Bodel in terms of the low back assessment. I do not believe there is any permanent impairment in the knee because today the range of movement are symmetrical and full range so that is the only difference between our assessments. I probably cannot agree with Dr Miniter putting her as 0% because there is still residual problem in the back with mild stiffness and muscle spasm and that explains the difference of my assessment to Dr Miniter.”
The appellant complains on appeal that the Medical Assessor did not adequately explain why he did not find a rateable impairment for the left lower extremity (knee).
The appellant notes that Dr Bodel, the independent medical expert (IME) qualified to provide an opinion on behalf of the appellant, in his reports has indicated that the appellant has lost 5° of full extension of her left knee which equates with 4% WPI. The appellant goes on to submit that the Medical Assessor has not explained sufficiently his reasoning for assessing 0% WPI for the left lower extremity (knee).
The Appeal Panel notes that the MAC must be read as a whole including the history taken and the findings on physical examination. The Medical Assessor has commented very specifically on this issue, noting that at the time of his examination he found a full range of movement of both knees with no loss of movement and no ligamentous laxity or tenderness. The Medical Assessor is clearly cognisant of the findings of Dr Bodel as he refers to
Dr Bodel’s opinion and specifically identifies why his assessment differs because of his findings on the day of examination. He notes specifically that the range of movement of both knees was symmetrical and full, and this is the only difference between his assessment and that of Dr Bodel. The Medical Assessor is entitled to rely on his clinical findings on the day of examination and he has had due regard to the other opinions before him and has provided adequate reasoning as to why his assessment differs. He was not required to provide a greater explanation than he has done and his reasoning is adequate and discloses no error.
The Medical Assessor is required to provide an independent assessment and is entitled to rely on his clinical findings on the day of examination.
The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings.
What the Medical Assessor has found in accordance with his examination findings on the day of assessment is that there is no rateable impairment for the left lower extremity (knee). This is adequately explained when the MAC is read as a whole. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no error and the Appeal Panel considers that the reasoning given by the Medical Assessor was adequate.
For these reasons, the Appeal Panel has determined that the MAC issued on
11 February 2025 should be confirmed.

[2025] NSWPICMP 473

1 July 2025