Sydney Water Corporation v Slater; Slater v Sydney Water Corporation

DETERMINATION OF APPEAL PANEL
CITATION:	Sydney Water Corporation v Slater; Slater v Sydney Water Corporation [2024] NSWPICMP 482
APPELLANT:	Sydney Water Corporation
RESPONDENT:	Brian Slater
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Chris Oates
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	18 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against decision of Medical Assessor (MA) in respect of error in including an assessment of the left shoulder when it was not part of the worker’s claim or the medical dispute; Skates v Hills Industries Ltd applied; appeal by the worker on the basis that the MA did not provide sufficient reasons for not using the strength model in the assessment of the left elbow and in his assessment of scarring; Held – Medical Appeal Panel accepted that the left shoulder had not been part of the claim and was not part of the dispute; assessment should be removed from the assessment of permanent impairment; Medical Appeal Panel concluded that there was no material error made in the assessment by the MA of the left elbow and scarring; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 May 2024, Sydney Water Corporation (Sydney Water) lodged an Application to Appeal Against the Decision of a Medical Assessor (Matter No M1-W1791/24). The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 April 2024.
Sydney Water 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.
On 22 May 2024 Brian Slater (Mr Slater) lodged an Application to Appeal Against the Decision of a Medical Assessor (Matter No M2 -W1791/24). The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on24 April 2024.
Mr Slater 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 delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out in both applications. The delegate ordered that the matters ought to proceed to a Medical Appeal Panel pursuant to s 327(4) of the 1998 Act for determination concurrently.
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).

RELEVANT FACTUAL BACKGROUND

Mr Slater lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 5 March 2024 in which he claimed 19% whole person impairment (WPI) of the right upper extremity, 2% WPI for scarring (TEMSKI) and 6% WPI for the digestive systemin respect of an injury sustained on 23 January 2021.
The matter was referred to Medical Assessor, Dr Yiu-Key Ho, on 27 March 2024 for assessment of WPI of the left upper extremity and scarring (TEMSKI).
The Medical Assessor examined Mr Slater on 18 April 2024 and assessed 1% WPI of the left upper extremity and 1% for scarring. This resulted in a combined total of 12% WPI as a result of the injury on 23 January 2021.

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.
In M2-W1791/24, Mr Slater requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel as there was insufficient information regarding loss of strength assessment and significant cosmetic deformity.
As a result of the preliminary review, the Appeal Panel determined that it was not necessary for the Mr Slater to undergo a further medical examination because there was sufficient evidence on which to make a determination.

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.

Submissions in M1-W1791/24

Sydney Water’s submissions include the following:
(a)     the MAC contains a demonstrable error on the basis that it included an assessment of the left shoulder as part of the “left upper extremity”. Sydney Water submits this was not available to the Medical Assessor as the left shoulder:
(i)was not part of Brian Slater’s claim for permanent impairment;
(ii)was not a part of the medical dispute crystallised between the parties, and
(iii)was beyond the scope of the “Referral for Assessment of Permanent Impairment”.
(b)     The left shoulder was not a body part within the scope of the medical dispute which had “crystallised” between the parties (Skates v Hills Industries Ltd [2021] NSWCA 142).
(c)   In relation to Mr Slater’s claim for permanent impairment to the “left upper extremity” and scarring:
(i) on 23 October 2023, Mr Slater’s legal representatives made a claim for 19% WPI. The claim was supported by the medico-legal report of Dr Andrew Leicester, orthopaedic surgeon dated 28 September 2023 (ARD page 12).
(ii)In his report dated 28 September 2023, Dr Leicester:
(aa) noted a history of the subject incident on 23 January 2021, stating Mr Slater reported symptoms to the left elbow only;
(bb)noting the above, conducted a physical examination based only on the injury to the left elbow and associated scarring (ARD Page 13), and
(cc) assessed permanent impairment to the “upper limb” (left elbow) and scarring. Importantly, the left shoulder was not assessed (ARD Page 15).
(d)     With the ARD Mr Slater served a statement dated 1 March 2024 (ARD page 1) describing the nature of his injury. He noted the following:
(i) following the subject incident on 23 January 2021, he experienced immediate pain in the left elbow;
(ii) he reported ongoing pain, weakness, and restriction of motion in the left elbow. Further, there was an obvious deformity of the bicep, and
(iii) importantly, there was no mention of the left shoulder within Mr Slater’s statement.
(e)    In response to the claim for permanent impairment, the appellant relied on the report of Associate Professor Paul Miniter, orthopaedic surgeon dated 6 December 2023 (Reply page 6).
(f)    In his report dated 6 December 2023, Associate Professor Miniter:
(i)noted significant features of exaggeration by way of the history taken on examination and the physical examination performed on the respondent (Reply page 10);
(ii)noted that as far as he could identify, the respondent seemed to have incurred a very minor musculotendinous strain at the left biceps. Otherwise, there was no other evidence of injury (Reply page 9), and
(iii)assessed 2% WPI in relation to the left upper extremity (elbow) and scarring. Importantly, the left shoulder was not assessed (Reply page 11).
(g)    Overall, neither Dr Leicester nor Associate Professor Miniter provided any commentary of existing complaints to the left shoulder in their respective medicolegal reports. No history was taken on examination as to the onset and development of the alleged left shoulder condition by either doctor.
(h)    On 6 February 2024, the Appellant issued a s 78 Notice disputing the respondent’s permanent impairment claim for the “left bicep injury” on the basis that he did not meet the 10% WPI threshold contained in s 66(1) of the Workers Compensation Act 1987 (1987 Act) to be entitled to any lump sum compensation (Reply page 1).
(i)    It is abundantly clear the left shoulder was not a body part for which a claim for injury was made; nor one in which a claim for impairment was supported under s 66 of the 1987 Act, or ss 281 and 282 of the 1998 Act. In this regard, the claim for impairment made by Mr Slater was based on the report of Dr Leicester, who assessed “left upper extremity” as comprising of impairment to the left elbow and scarring only.
(j)    In applying Skates, the “medical dispute” that crystallised between the appellant and respondent was the degree of permanent impairment to the left elbow – the totality of which was the “left upper extremity” – and scarring. It was this body region that was assessed by Dr Leicester and Associate Professor Miniter; and was relied on by the parties in making and responding to the claim for permanent impairment for the “left upper extremity”. It did not include an assessment of the left shoulder.
(k)    Noting the above, the “left upper extremity” referred to the Medical Assessor for assessment of permanent impairment comprised of the left elbow and scarring only.
(l)     Overall, the Medical Assessor’s assessment of impairment to the left shoulder is a demonstrable error and one that is prejudicial to the respondent. Based on the above submissions, and the application of Skates, the left shoulder does not fall within the ambit of body parts to be assessed by the Medical Assessor; and the Medical Assessor went beyond the terms of the referral when assessing the left shoulder.
(m)     The Medical Assessor has erred in assessing the left shoulder and the MAC should be revoked.
(n)    The assessment of the “left upper extremity” be limited to the left elbow and scarring; and a new MAC should be issued by the Medical Appeal Panel assessing 5% WPI for the physical injury suffered by the respondent on 23 January 2021, as follows:
(i)left upper extremity (UEI) – 4% WPI (left elbow – 7% UEI), and
(ii)scarring – 1% WPI
(iii)total – 5% WPI.
Mr Slater’s submissions included the following:
(a)     the Medical Assessor was asked to assess Mr Slater’s left upper extremity and scarring – TEMSKI.
(b)     The Medical Assessor has evaluated and examined Mr Slater’s left upper extremity and found there to be loss of range of movement in the elbow, weakness when using the bicep as well as loss of range of movement. In addition, the Medical Assessor also found there to be loss of range of movement in the left shoulder.
(c)   The respondent concedes that the Medical Assessor is the only assessor that has assessed the left shoulder impairment. However, the impairment has been assessed correctly and in accordance with the Guidelines as the Medical Assessor has compared the loss of range of movement on the left side with the loss of range of movement on the right side (which has full range of movement).

Submissions in M2-W1791/24

Mr Slater’s submissions include the following:
(a)     Ground 1 – the MAC contains a demonstrable error as the Medical Assessor failed to provide sufficient reasoning for excluding the strength model in assessing the impairment.
(b)     The Medical Assessor is required to set out the “actual path of reasoning” in coming to his conclusion as to the level of impairment as stipulated in Chalkas v State of New South Wales [2018] NSESC 1561. The reasons for coming to the conclusion which is materially different to the doctor commissioned by Mr Slater were insufficient.
(c)   The decision in De Gelder v Rodger (no 2) [2014] NSWSC 1355 held that circumstances in which the decision maker fails to consider relevant material may constitute a demonstrable error. This decision was later referred to by AsJ Harrison in Wentworth Community Housing Limited v Brennan [2019] where Her honour noted ta [73] that the decision of de Gelder (no 2) concerned the decision of a MAP, however, the principle was “equally applicable to the decision of the AMS “.
(d)    In applying this case law, the Medical Assessor failed to sufficiently explain the basis for his decision regarding impairment, which has led to an error. The Medical Assessor must give adequate reasons for conclusions reached and why those conclusions differ to other opinion provided.
(e)    The only explanation for not utilising the strength model was on page 4 of the MAC where the Medical Assessor wrote: “I try not to use strength model in assessment of impairment.” Later in the same paragraph, the Medical Assessor when discussing scarring noted “lack of use due to muscle wasting”. In noting there was muscle wasting, the Medical Assessor should have considered whether or not the strength model is the appropriate mode of assessment of the level of impairment.
(f)    The reasons provided as to why the assessment was different to that of Dr Leichester are insufficient. The Medical Assessor should also have regard as to whether or not the difference in opinion represents a large proportion of total impairment, in which case, greater attention should be paid to ensuring sufficient reasons are provided for the difference in opinion.
(g)    Ground 2 - the MAC contains a demonstrable error as the Medical Assessor failed to provide sufficient reasoning for scarring (TEMSKI scale).
(h)    Table 14.1 of the Guidelines sets out the criteria to be met for an assessment of scarring. Paragraph 14.8 of the Guidelines provides that the TEMSKI is to be used in accordance with the principle of “best fit”.
(i)    The relevant criteria for the Medical Assessor to consider when assessing “best fit” are description of the scar(s) and /or skin condition, location, contour, activities of daily living (ADL)/treatment and adherence to underlying structures.
(j)    The only explanation provided by the Medical Assessor is “there is just a bit of tethering due to injury and lack of use due to muscle wasting and I will assess it at 1%”. There was simply insufficient explanation for the conclusion drawn.
(k)    The MAC should be revoked and Mr Slater re-examined by a member of the Appeal Panel.
Sydney Water’s submissions included the following:
(a)    The MAC does not contain any demonstrable errors as alleged by the appellant. The Medical Assessor has not applied any incorrect criteria when assessing the appellant.
(b)    The Guidelines note that an assessment of the upper extremity mainly involves clinical evaluation. Cosmetic and functional evaluations are performed in some situations.
(c)    GROUND 1 – use of the Strength Model Assessment. The Medical Assessor has provided a clear path of reasoning as to why he elected not to utilise the strength model in his assessment of impairment.
(d)    Dr Leicester implemented the strength model assessment to assess motor deficit in his report dated 28 September 2023 as follows (ARD Page 18):
“Mr Slater has weakness of flexion and supination as a result of his injury to the biceps. Using Table 16-11, Mr Slater has Grade 4 Power, and this would equate to 10% motor deficit. This converts to 6% whole person impairment using Table 16-3.”
(e)    On Page 3 of the MAC, the Medical Assessor observed differently to Dr Leicester on examination. He noted the following: “The supination and pronation of the left elbow remain equal to the other side. Obviously, there is weakness when using the bicep whether there is flexion or flexion in supination because patient also complains of pain”. In addition, the Medical Assessor explained precisely why his opinion differs from that of Dr Leicester on page 4 of the MAC. Specifically, the Medical Assessor noted the following:
“I cannot agree with the opinion of Dr Leicester. I do not think there is any proximal migration of the bicep muscle based on the clinical examination and the measurement of the distance between the muscle bulk and the elbow joint crease. So I do not agree with him… because basically it is still intact.”
(f)    Given the above, the Medical Assessor has provided sufficient reasons for not utilising the strength model in his assessment. Evidently, the Medical Assessor reached different conclusions to Dr Leicester based on his clinical examination of Mr Slater’s injuries. Further, he has explained why it may not be appropriate to implement such an assessment based on his findings on examination because Table 16-11 is utilised in relation to loss of nerve function, not due to weakness caused by pain. The Medical Assessor did not find that the appellant’s weakness was due to any nerve damage/disorder.
(g)    As such, Mr Slater is incorrect in asserting the Medical Assessor has made a demonstrable error and/or applied incorrect criteria as he has utilised his clinical skills and judgement, correctly adhering to the relevant criteria stipulated in the AMA 5 outlined at paragraphs 15 and 17 above.
(h)    The Medical Assessor did in fact provide a clear path of reasoning for disagreeing with the assessment of Dr Leicester. The Medical Assessor is required to provide adequate reasoning for their decision to allow the assessment of permanent impairment to be understood and the basis for it. In this regard, they are:
(i)not required to follow the opinions of any of the doctors qualified for the parties (John Fairfax Publication Pty Ltd v Ankica Gadzuric NSWWC MA 197) (16 June 2009)), and
(j)are not required to refer to each, and every piece of evidence filed by the parties and provide reasons as to why they did not agree with it. The fact that the Medical Assessor’s opinion differed from that of Dr Leicester, in of itself, does not amount to a demonstrable error.
(k)    The Medical Assessor has adequately justified his assessment of the left elbow through reference to Tables 16.34 and 16.37 of AMA 5. The Medical Assessor has provided adequate reasoning for the conclusions reached on examination. It follows that the divergence in opinion of other doctors does not amount to a demonstrable error as supported by Malpass JA in Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22.
(l)    Additionally, the Medical Assessor was not under any mandatory obligation to utilise the strength model in his assessment of impairment, if he did not consider it necessary to do so.
(m)     AMA5 on page 484 provides: Muscle strength testing is voluntary in that it requires full individual concentration and cooperation. It remains somewhat subjective until precise methods of measuring muscle contractions become generally available. Muscle atrophy, although not rated separately, can be a more objective sign of motor dysfunction. and: The examiner must use clinical judgment to estimate the appropriate percentage of motor deficits and loss of power within the range of values shown for each severity grade. It is important to ascertain that weakness is due to loss of nerve function before using these tables. Weakness may be due to many causes, including pain, and Table 16-11 is not to be used for rating weakness that is not due to a diagnosed injury of a specific nerve or nerves.
(n)     This extract provides clear indication in support of the Medical Assessor’s assertion that the strength model assessment is relatively subjective. It follows that a Medical Assessor is under no obligation to utilise such an assessment where other methods of assessment can be implemented – it is simply voluntary.
(o)     The Medical Assessor had assessed muscle atrophy (wasting) relevantly in his examination of the appellant’s injuries (Page 3 MAC). The AMA 5 refers to the assessment of muscle atrophy as a “more objective sign of motor dysfunction” – although the two methods of assessment do not necessarily have to be utilised separately. Given this, the Medical Assessor has taken into account the relevant guidelines and assessed Mr Slater’s injuries based on criteria he sees fit.
(p)    Overall, the MAC is to be read as a whole to see if the result reached has been adequately explained. It is not to be read “with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272).
(q)    The Medical Assessor has correctly undertaken the above exercise. Particularly, he has based his assessment on the detailed history taken, careful physical examination, and review of all the investigations and medical reports contained in the file (MAC page 4).
(r)    GROUND 2 – Mr Slater incorrectly asserted the MAC contains a demonstrable error because the Medical Assessor failed to provide sufficient reasons for coming to an assessment of 1% WPI for scarring.
(s)    The Medical Assessor was at liberty to find an assessment of 1% in relation to the appellant’s scarring and further, he has adhered to the TEMSKI scale criteria.
(t)    The TEMSKI criteria outlined at Table 14.1 of the Guides with respect to the characteristics in support of a finding of 1% WPI for scarring:
(i) Mr Slater is conscious of the scar(s) or skin condition;
(ii) some parts of the scar(s) or skin condition contrast with the surrounding skin as a result of pigmentary or other changes;
(iii) claimant is able to locate the scar(s) or skin condition;
(iv) minimal trophic changes;
(v) any stable or suture marks are visible,
(vi) anatomic location of the scar not usually visible with usual clothing/hairstyle;
(vii) minor contour defect;
(viii) negligible effect on any ADL, and
(ix) no treatment, or intermittent treatment only, required.
(u)    In assessing Mr Slater’s scarring, the Medical Assessor noted there was only slight tethering due to the subject injury and lack of use due to muscle wasting. He provided an assessment of 1% WPI based on these findings in accordance with the TEMSKI scale (MAC page 4). As such, the Medical Assessor has applied the correct criteria in assessing the appellant’s scarring.
(v)    Additionally, the respondent disagrees with the appellant’s submissions that insufficient reasoning and/or justification was provided by the Medical Assessor in coming to his assessment of 1%. On page 4 of the MAC whereby the Medical Assessor outlines that he does not agree with Dr Leicester’s assessment of 4% for scarring because their findings on examination were clearly different.
(w)   The Medical Assessor explained that he held a similar opinion to that of Associate Professor Miniter in relation to the assessment of the appellant’s left elbow. In particular, he explicitly stated that they agreed with each other on the assessment of scarring (MAC page 4). Given this, the Medical Assessor has provided sufficient reasoning for his decision.
(x)    We note the following commentary provided by Associate Professor Miniter in his report dated 6 December 2023, which the MA stated he agreed with (Reply page 11):
“You will note that Dr Leicester believes that there is a significant deformity at the biceps, but it is very difficult to identify this unless one looks closely and a 4% TEMSKI allowance would not normally be put forward in relation to matters such as this. The very subtle changes should not, in my opinion, attract a significant TEMSKI allowance.’ A/Prof Miniter assessed 1% WPI for scarring ‘relating to a cosmetic deformity which is in [his] opinion very mild”.
(y)    The fact that the Medical Assessor agrees with an opinion contrary to the doctor commissioned by Mr Slater in itself does not amount to a demonstrable error.
(z)    Given the above, the Medical Assessor did not consider Mr Slater’s scarring as so significant to warrant an assessment of 4% WPI in accordance with TEMSKI. Further, because of the apparent lack of significance of the scarring and the same reasoning outlined by Associate Professor Miniter, the Medical Assessor did not consider it necessary to flesh out reasons in support of a finding that the impairment was on its face, very mild.
(aa)    Overall, the respondent submits that the Medical Assessor has not erred in providing an assessment of 1% WPI in relation to Mr Slater’s scarring. He has appropriately applied the TEMSKI criteria and has provided sufficient reasons in support of his assessment, namely, that he agrees with A/Prof Miniter’s evaluation of the scarring as very mild.

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.

M1-W2930/23

Error in including an assessment of the left shoulder as part of the “left upper extremity”

Sydney Water submits that the MAC contains a demonstrable error on the basis that it included an assessment of the left shoulder as part of the “left upper extremity”. Sydney Water argued that this was not available to the Medical Assessor as the left shoulder was not part of Mr Slater’s claim for permanent impairment, was not a part of the medical dispute which had crystallised between the parties; and was beyond the scope of the “Referral for Assessment of Permanent Impairment”.
The Medical Assessor under “Present symptoms” noted: “He complains of pain in the whole arm certainly associated with stiffness in the elbow and shoulder joint on the left side…”
Under “Findings on Physical Examination” the Medical Assessor wrote:
“…Also the shoulder is also stiff. The right shoulder demonstrate full range of movement in every direction. The left shoulder flexion is 120˚, extension is 30˚, abduction is 120˚, adduction is 30˚, external rotation is 30˚, his hand can only touch the side of the head and internal rotation is 40˚ just around the left buttock area and they cannot be improved passively consistent with frozen shoulder”.
The Medical Assessor assessed 7% UEI for the left elbow. He then wrote:
“On the other hand both Dr Leicester and Miniter has not noticed the problem in the left shoulder. The shoulder has ended up frozen because the patient complain about pain and lack of use of the elbow and make the left shoulder also stiff. So that is a consequential condition as a result of the poor outcome of the left elbow after conservative treatments. My clinical examination of the left elbow is more or less similar to Dr Miniter and we agree with each other on the assessment of the scarring but he is different to me as he also did not notice the problem in the shoulder which in this particular situation is also contributing to the permanent impairment of the left upper extremity on the whole. So combining the elbow problem which is 7% and the shoulder problem which is 13% of upper extremity impairment will give rise to a 19% upper extremity impairment which is equal to 11% whole person impairment together with the scarring altogether will be 12%. Also there is calculation error of Dr Leicester’s work sheet, as for upper limb for combination of 7% and 6% should be 13%, together with 4% in scaring should be 16% but not 19% as he suggested”.
In Skates v Hills Industries Ltd [2021] NSWCA 142, Leeming JA noted the following 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)…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…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”.
The Appeal Panel reviewed the history of this claim.
Mr Slater made a claim for 19% WPI in a letter from his solicitors, LHD Lawyers, dated 23 October 2023. The claim was supported by the medicolegal report of Dr Andrew Leicester, orthopaedic surgeon dated 28 September 2023.
In his report dated 28 September 2023, Dr Leicester noted a history of an injury on 23 January 2021, when Mr Slater was pulling on a manhole cover with a metal key. Dr Leicester noted that the other worker lost control of the manhole and Mr Slater sustained a traction type injury to his left elbow. There was no reference to the left shoulder in Dr Leicester’s report. Dr Leicester made as assessment of whole person impairment having conducted a physical examination based only on the injury to the left elbow and associated scarring. He made the following assessment of the left upper extremity:
“In regards to whole person impairment arising from your client’s injuries, I have used the AMA Guides to the Evaluation of Permanent Impairment (5th Edition). I have used Figure 16-34 on page 472.
Using this range of motion chart, Mr Slater can be assessed at 8% upper limb impairment due to restricted flexion and 3% permanent impairment on the basis of restricted extension. There is no impairment on the basis of restricted forearm pronation and supination which appeared to be unaffected according to Figure 16-35 of the same Guides. Impaired range of motion would therefore be assessed at 11% upper limb impairment. This converts to 7% whole person impairment using the Conversion Table 16-3 on page 439.
Mr Slater has weakness of flexion and supination as a result of his injury to the biceps. Using Table 16-11 on page 484, Mr Slater has Grade 4 power and this would equate to 10% motor deficit. This converts to 6% whole person impairment using Table 16-3”.
Figure 16-34 on page 472 of AMA 5 is headed; “Pie Chart of Upper Extremity Motion Impairments due to lack of Flexion and Extension of the Elbow Joint”. Table 16-11 on page 484 of AMA 5 is headed “Determining Impairment of the Upper Extremity due to Motor and Loss-of-Power Deficits Resulting from Peripheral Nerve Disorders Based on Individual Muscle Rating.”
No assessment was made by Dr Leicester of the left shoulder. Mr Slater in his submissions properly conceded that the Medical Assessor was the only doctor to make an assessment of left shoulder impairment.
Mr Slater made a statement dated 2 March 2024 which is annexed to the ARD. Mr Slater stated:
“At the time of the incident, I was pulling on a manhole cover with a metal key. I was doing it with another man who was relatively inexperienced. The manhole cover weighed between 90 to 100 kg. The other worker lost control of the manhole cover, and I sustained a yanking type of incident to my left elbow. Immediately, I felt severe pain”.
Mr Slater also stated that he had ongoing pain and complaints in and above the elbow, and ongoing weakness and restriction of motion in the left elbow. He described having an obvious deformity of the bicep. There was no reference to the left shoulder in Mr Slater’s statement.
In the ARD dated 5 March 2024, Mr Slater described under “Injury Details” sustaining an injury on 23 January 2021 while lifting a manhole cover. Under “Permanent Impairment/Pain and Suffering” made a claim in respect of the following Systerms: left upper extremity and TEMSKI/Scarring.
Sydney Water relied on the report of Associate Professor Paul Miniter dated 6 December 2023 who noted that as far as he could identify, Mr Slater seemed to have incurred a very minor musculotendinous strain at the left biceps. Associate Professor Miniter assessed 2% WPI in relation to the left upper extremity (elbow) and scarring. He did nor assess the left shoulder.
The “Referral for Assessment of Permanent Impairment to Medical Assessor” (the referral) was made on 27 March 2024 and noted the following:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
      the degree of permanent impairment of the worker as a result of an injury (s319(c))
      whether any proportion of permanent impairment is due to any previous injury or pre existing condition or abnormality, and the extent of that proportion (s319(d))
      whether impairment is permanent (s319(f))
      whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 21 January 2021
Body part/s referred: Left upper extremity
Scarring - TEMSKI
Method of assessment: Whole person impairment.”
The Appeal Panel accepts that neither Dr Leicester nor Associate Professor Miniter provided any commentary of any existing complaint to the left shoulder in their respective reports. No history was taken on examination as to the onset and development of the alleged left shoulder condition by either doctor.
On 6 February 2024, Sydney Water issued a s 78 Notice disputing Mr Slater’s permanent impairment claim for the “left bicep injury: on the basis that he did not meet the 10% WPI threshold contained in Section 66(1) of the 1987 Act”.
The Appeal Panel noted that Mr Slater was treated by Dr Christopher Reitz, orthopaedic surgeon following the injury on 23 January 2021. The Appeal Panel noted that in the various report provided by Dr Reitz between 29 January 2021 and 10 May 2021 there was no reference to any injury or condition in the left shoulder.
Sydney Water referred to the decision in Skates. The Appeal Panel noted at [47]-[48] Leeming JJA stated:
“47. Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission.”
At [81] McCallum JA stated that:
“81. … But more importantly, the focus on body parts is apt to distract attention from the precise matter to be assessed and certified by the approved medical specialist. Parts 4 and 5.6 of the application to resolve a dispute had to be read together and in the context of the statutory regime explained above. The legislation contemplates the referral of a ‘medical dispute’, being one of the matters specified in s 319 (here, the degree of permanent impairment of the worker as a result of his injuries). Part 4 of the application specified the relevant injuries; part 5.6 specified the body systems claimed to have impairment as a result of those injuries.”
However, in Skates, the matter was referred back for re-assessment because the parties were aware that the medical dispute included the left wrist and the employer/insurer in Skates conceded that the left wrist, which was omitted in the referral, should have been assessed. In this case, Sydney Water has not conceded that the injury to be assessed included an injury to the left shoulder.
The Appeal Panel considered that the medical dispute identified between the parties was a dispute concerning the degree of impairment to the left upper extremity involving an injury to the elbow and scarring as a result of the personal injury on 21 January 2021.
Clearly the parties are bound by the conduct of the case. Mr Slater was bound by the ARD filed on 4 March 2024, Dr Leicester’s report of 28 September 2023 upon which the claim was based, as well as the treating material. The Appeal Panel accepts that the referral to the Medical Assessor which indicated that the dispute between the parties concerned the degree of impairment to the left upper extremity and scarring/TEMSKI.
However, the report provided by Dr Leicester dated 28 September 2023 did not mention the left shoulder. Consistent with the observations in Skates at [46], the Appeal Panel does not accept that any injury is necessary part of the medical dispute unless there is a relevant claim.
On the facts in this matter, the Appeal Panel does not accept, consistent with the principles of Skates set out above, that the medical dispute between the parties included injuries that were not notified as part of the claim for permanent impairment.
The Appeal Panel concludes that the left shoulder is not a body part for which a claim for injury was made; nor one in which a claim for impairment was supported under s 66 of the 1987 Act, or ss 281 and 282 of the 1998 Act. The claim for impairment made by Mr Slater was based on the report of Dr Leicester, who assessed “left upper extremity” as comprising of impairment to the left elbow and scarring only.
In applying Skates, the “medical dispute” that crystallised between Sydney Water and Mr Slater was the degree of permanent impairment to the left elbow and scarring. It was this body region that was assessed by Dr Leicester and Associate Professor Miniter and was relied on by the parties in making and responding to the claim for permanent impairment for the “left upper extremity”. The claim did not include an assessment of the left shoulder.
The Appeal Panel was satisfied that the Medical Assessor erred in making an assessment in respect of the left shoulder. The Appeal Panel therefore determined that the assessment made in respect of the left shoulder should be removed from the assessment of WPI.

M2-W2930/23

Ground 1 – error in failure to provide sufficient reasoning for excluding the strength model in assessing impairment

Mr Slater submitted that the MAC contains a demonstrable error as the Medical Assessor failed to provide sufficient reasoning for excluding the strength model in assessing the impairment. Mr Slater submits that the reasons provided as to why the assessment was different to that of Dr Leicester are insufficient.
Mr Slater also argued that the Medical Assessor when discussing scarring noted “lack of use due to muscle wasting” in noting that there was muscle wasting, he should have considered whether or not the strength model is the appropriate mode of assessment of the level of impairment.
On page 2 of the MAC, the Medical Assessor made the following findings on physical examination:
“On inspection we can the muscle bulk of the bicep on the left side is gone but if we marked the distal end of the muscle bulk when I measure it to the elbow joint crease they are the same bilaterally. In other words there is no proximal migration of the muscle bulk just loss of size due to disuse in the last three years. The elbow is stiff. It certainly has 30˚ of extension lag and flexed to about 110˚. The Supination and pronation of the left elbow remain equal to the other side. Obviously there is weakness when using the bicep whether there is flexion or flexion in supination because patient also complain of pain. While the other elbow has full range of movement…Neurovascular examination remained normal”.
On page 3 of the MAC, the Medical Assessor made a diagnosis of a strain to the left biceps.
On page 4 of the MAC, the Medical Assessor wrote:
“To assess the whole person impairment in terms of the stiffness of the elbow using Figure 16- 34,37 30˚ of extension lag is 3% upper extremity impairment, 110˚ of flexion is 4% and the two together is 7%... In evaluating the permanent impairment we try not to use the module of strength because this is relatively subjective.”
In commenting on the other medical opinions, the Medical Assessor wrote:
“I cannot agree with the opinion of Dr Andrew Leicester. I do not think there is any proximal migration of the bicep muscle based on the clinical examination and the measurement of the distance between the muscle bulk and the elbow joint crease. So I do not agree with him to do another MRI scan because basically it is still intact. The treatment was not wrong because all the investigations confirm that the tendon was intact initially just because he had a poor outcome with the usual conservative treatment which is a bit unexpected. I try not to use the strength model in assessment of permanent impairment…”
Mr Slater relied on the assessment of Dr Leicester in his report dated 28 September 2023. Dr Leicester as noted above used Figure 16-34 on page 472 of AMA 5 to assess using the range of motion chart 8% upper limb impairment due to restricted flexion and 3% permanent impairment on the basis of restricted extension. There is no impairment on the basis of restricted forearm. Dr Leicester noted that pronation and supination appeared to be unaffected according to Figure 16-35 of AMA 5 and therefore impaired range of motion was assessed at 11% UEI. He converted to 7% WPI using the Conversion Table 16-3 on page 439.
Dr Leicester then wrote:
“Mr Slater has weakness of flexion and supination as a result of his injury to the biceps. Using Table 16-11 on page 484, Mr Slater has Grade 4 power and this would equate to 10% motor deficit. This converts to 6% whole person impairment using Table 16-3”.
Table 16-11 on page 484 of AMA 5 is headed “Determining Impairment of the Upper Extremity Due to Motor and Loss of Power Deficits Resulting From Peripheral Nerve Disorders Based on Individual Muscle Ratings”. An assessment under this table can only be made where the worker has a loss of strength resulting from a peripheral nerve disorder. Dr Leicester did not identify any peripheral nerve disorder. The Appeal Panel considered that an assessment under this table does not apply in this case as Mr Slater has a muscle injury not a nerve injury or peripheral nerve disorder.
Part 16.8 of AMA 5 on page 507 makes provision for assessment of impairment based on strength evaluation. At 16.8a the AMA 5 provides:
“Decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities or absence of parts (eg, thumb amputation) that prevent effective application of maximal force in the region being evaluated.”
The Guidelines at paragraph 2.13 provide:
“Strength evaluation, as a method of upper extremity impairment assessment, should only be used in rare cases and its use justified when loss of strength represents an impairing factor not adequately considered by more objective rating methods. If chosen as a method, the caveats detailed on AMA5 p 508 under the heading ‘16.8a Principles’ need to be observed ie decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities and absence of parts (eg thumb amputation).”
It is clear that decreased strength cannot be used as a method of assessment where there is decreased range of movement and the Medical Assessor was correct in making an assessment of the left elbow based on the range of movement found on examination.
Mr Slater submitted that the Medical Assessor failed to provide sufficient reasoning for excluding the strength model in assessing the impairment. While the Medical Assessor did not actually state that the strength model cannot be used where the workers has a decreased range of movement, and merely said that that “we try not to use the module of strength because this is relatively subjective”, a proper reading of AMA 5 and the Guidelines makes it clear that the strength model could not be used where there is a decreased range of movement. The Appeal Panel concluded that any failure to provide sufficient reasoning for excluding the strength model in assessing the impairment was not a material error.

Mr Slater also submits that the reasons provided by the Medical Assessor as to why the assessment was different to that of Dr Leicester are insufficient. The Appeal Panel noted that the Medical Assessor disagreed with the diagnosis made by Dr Leicester and provided reasons based on the findings made in his examination. The Appeal Panel accepts that the Medical Assessor did not explain that the assessment by Dr Leicester under Table 16-11 would not apply in this case as Mr Slater has a muscle injury, not a nerve injury. However, Mr Slater does not raise this in his grounds of appeal but argued that the strength model should have been used to assess impairment. In a situation where Mr Slater’s Independent Medical Examiner, Dr Leicester, did not actually use the strength model to make an assessment, there is no reason why the Medical Assessor should provide reasons for not using that method of assessment. The difference in the assessment of the restriction of range of movement in the left elbow by the Medical Assessor was clearly based on the findings made by the Medical Assessor in his examination of Mr Slater.
Taking all these factors into account, the Appeal Panel concluded that any failure to provide sufficient reasoning as to why this assessment was different to that of Dr Leicester, was not a material error.

Ground 2 – error in failure to provide sufficient reasons for coming to an assessment of 1% WPI for scarring

Mr Slater submitted that the MAC contains a demonstrable error as the Medical Assessor failed to provide sufficient reasoning for assessing 1% WPI for scarring (TEMSKI scale).
The Medical Assessor under “Findings on Physical Examination” noted:
“On inspection we can the muscle bulk of the bicep on the left side is gone but if we marked the distal end of the muscle bulk when I measure it to the elbow joint crease they are the same bilaterally. In other words there is no proximal migration of the muscle bulk just loss of size due to disuse in the last three years”.
Under “Reasons for Assessment” the Medical Assessor wrote:
“In terms of scarring using the TEMSKI scale there is some tethering of the scar due to the injury and then the muscle wasting and using the TEMSKI scale I will grade it at 1% only”.
In commenting on the other medical opinions, the Medical Assessor wrote:
“I cannot agree with the opinion of Dr Andrew Leicester…I cannot agree with him using TEMSKI scale and assess it as 4% as there is only just a bit of tethering due to injury and lack of use due to the muscle wasting and I will assess it at 1%”.
The Medical Assessor noted that he agreed with Associate Professor Miniter’s assessment of the scarring.
Dr Leicester, in his report dated 28 September 2023, wrote: “On examination there was obvious deformity above the elbow with apparent proximal migration of the biceps and puckering of the skin”.
Dr Leicester wrote:
“Mr Slater has significant cosmetic deformity with a Popeye deformity of his distal arm. Using the TEMSKI scale in Table 14.1 of the NSW Workers Compensation Guides to the Evaluation of Permanent Impairment, 4th Edition, I would estimate that Mr Slater has 4% whole person impairment on the basis of his contour defect and restrictions of his activities of daily living”.
Associate Professor Miniter in his report dated 6 December 2023 wrote:
“You will note that Dr Leicester believes that there is a significant deformity at the biceps but it is very difficult to identify this unless one looks closely and a 4% TEMSKI allowance would not normally be put forward in relation to matters such as this. The very subtle changes should not in my opinion attract a significant TEMSKI allowance.
…the total of the whole person impairment is 1% WPI relating to his left elbow and perhaps 1% relating to a cosmetic deformity which is in my opinion very mild”.
Table 14.1 of the Guidelines sets out the criteria to be met for an assessment of scarring and/or skin conditions. Paragraph 14.8 of the Guidelines provides that the TEMSKI is to be used in accordance with the principle of “best fit”.
However, Paragraph 14.7 provides:
“The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0–9%) due to skin disorders into five categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0–4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system”.
The Appeal Panel noted that Mr Slater did not undergo any surgery following his injury on 21 January 2021. The Appeal Panel considered that Mr Slater did not have a skin condition such as dermatitis or urticaria. Mr Slater has a deformity or minor disfigurement causing a bit of tethering due to the injury and lack of use due to muscle wasting.
The Appeal Panel considers that no assessment should have been made under Table 14.1 as that only applied to scars and /or skin conditions, neither of which Mr Slater has. However, this issue was not raised by Sydney Water in its appeal.
In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In Queanbeyan Racing Club v Burton [2021] NSWCA 304, Basten JA, with whom Leeming JA and McCallum JA agreed, said at [22]: “…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”. At Basten JA said:
“32 …It would have been impermissible for the Appeal Panel to reconsider an element of the assessment which had not been the subject of the appeal to it.
33. To suggest that once the Panel has determined to set aside the certificate, it was ‘required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides’ is also erroneous. The fact that the Panel decided to set aside the certificate did not expand the scope of its appeal function: rather, setting aside the certificate was the necessary consequence of the proper exercise of the appeal function.”
Since this issue was not raised by Sydney Water in its appeal the Appeal Panel cannot reconsider this element of the appeal.
The Appeal Panel is confined to consider whether the Medical Assessor failed to provide sufficient reasoning for assessing 1% WPI for scarring (TEMSKI scale).
The Appeal Panel accepts that relevant criteria for the Medical Assessor to consider when assessing “best fit” are description of the scar(s) and /or skin condition, location, contour, ADL/treatment and adherence to underlying structures. However, the Appeal Panel notes that some of the criteria such as whether staple or suture marks are visible would only apply to scarring.
Mr Slater argued that the only explanation provided by the Medical Assessor is “there is just a bit of tethering due to injury and lack of use due to muscle wasting and I will assess it at 1%” which was simply insufficient for the conclusion drawn.
The Appeal Panel does not accept this submission. It was clear that both the Medical Assessor and Associate Professor Miniter found that Mr Slater had minor or subtle changes and they did not find significant deformity at the biceps that Dr Leicester referred to in his report. The Medical Assessor agreed with the assessment made by Associate Professor Miniter. Mr Slater has a minor contour defect below the skin. In terms of ADLs. The Medical Assessor noted that Mr Slater had trouble with selfcare because his arm was so sore, weak and stiff. The Medical Assessor did not find that there is no interference with ADLs because of this contour defect. Present treatment basically consists of pain killers including Nurofen for pain in the arm.
The Appeal Panel accepts that the Medical Assessor did not address all of the criteria in Table 14.1, however, as noted above, some of these criteria do not apply to contour defect.
Taking all these factors into account, the Appeal Panel concluded that any failure to provide sufficient reasoning for assessing 1% for scarring, was not a material error.
In conclusion, the Appeal Panel accepts that the Medical Assessor erred in making an assessment for impairment of the left shoulder and this assessment in respect of the left shoulder should be removed from the assessment of WPI. This resulted in an assessment of 7% UEI or 4% WPI for the left upper extremity (elbow), and 1% WPI for scarring (TEMSKI) which is combined to total 5% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 April 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:	W1791/23
Applicant:	Brian Slater
Respondent:	Sydney Water Corporation

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 Yiu-Key Ho 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)
1.Left upper extremity	23/1/2021	Figure 16-34, 16-37	4%	0	4%
2.Scarring	23/1/2021	TEMSKI	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					5%

[2024] NSWPICMP 482

18 July 2024