Taylor v Absolute Aquarium Products Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Taylor v Absolute Aquarium Products Pty Ltd [2025] NSWPICMP 192
APPELLANT:	Lisa Marie Taylor
RESPONDENT:	Absolute Aquarium Products Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Davies
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	21 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; member found that the appellant’s epilepsy was the result of the appellant’s injury; Member’s finding was confirmed on appeal; Medical Assessor (MA) found the appellant’s epilepsy condition was not the result of the appellant’s injury and did not assess the appellant had any permanent impairment of her nervous system as a result of her injury; Held – whether it was open to the MA to find the appellant’s epilepsy did not result from her injury; Appeal Panel held it was not; whether assessment of impairment can be made by reference to Section 13.b and Table 13-3 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) when bullet point criteria of paragraph 5.9 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) not met; Appeal Panel held it can because paragraph 5.9 modifies section 13.3a, 13.3c, 13.3d, 13.3e, and 13.3f of the AMA5 and not section 13.3b; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

Lisa Marie Taylor, the appellant, has appealed against the medical assessment that Medical Assessor Ron Granot conducted of a medical dispute between the appellant and Absolute Aquarium Products Pty Ltd, the respondent.
The appellant relies on the ground for appeal listed at s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), being 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).

RELEVANT FACTUAL BACKGROUND

The appellant suffered an injury on 6 February 2013 while working for the respondent. Her injury occurred as consequence of a heavy fire door, that was unhinged and leaning against a wall, falling on her head whilst she was mopping the floors.
On 18 June 2021 the appellant’s solicitors wrote to the insurer of the respondent advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her injury that her solicitors advised was of the order of 34% whole person impairment (WPI). They enclosed with their correspondence reports of neurologist Dr Ross Mellick dated 1 June 2021 and occupational physician
Dr Andrew Porteous dated 16 April 2021. Although the appellant’s solicitors did not explicitly state so in their correspondence, these reports were provided to the insurer to provide evidence to support the appellant’s claim for compensation.
In his report of 1 June 2021 Dr Mellick advised he had diagnosed the appellant had “posttraumatic focal epilepsy”. He said that the appellant’s seizures from her epilepsy “are occurring with a frequency that results in considerable impairment of Ms Taylor’s function”. Dr Mellick also expressed his opinion that the appellant’s employment is the main contributing factor to her “epileptic condition”. Dr Mellick provided an assessment of the appellant’s permanent impairment from her epileptic disorder. His assessment was done by reference to the criteria of Table 13-3 of AMA5. He correlated her impairment with the criteria of Class 3 of that table and assessed her impairment at 30% WPI which was the base of the range of percentages of impairment allowed for a Class 3 impairment.
In his report of 16 April 2021 Dr Porteous advised he assessed the appellant had 6% WPI from any injury to her cervical spine the appellant suffered.
The Appeal Panel observes that the 30% WPI Dr Mellick assessed the appellant had from her injury and the 6% WPI Dr Porteous assessed she had, combines to 34% WPI in accordance with the Combined Values Chart of AMA5, and hance the appellant’s claim.
On 8 July 2022 the respondent’s insurer wrote to the appellant notifying her under s 78 of the 1998 Act that it disputed she was entitled to compensation for permanent impairment from her injury. It advised her that it did “not consider that the available evidence establishes that your epilepsy condition is causally related to the injury of 6 March 2013”. With respect to that matter, it observed that one of the appellant’s prior treating specialists said in a report of
11 September 2018 that the cause of her epilepsy was uncertain. It also noted that the appellant had been examined by neurologist Dr John O’Neill, at the insurer’s request, who said that “he would be surprised if your epilepsy condition had arisen from the minor head injury that you suffered”.
The insurer advised the appellant that it accepted liability with respect to an injury to her cervical spine and shoulder from the incident on 6 February 2013, but because her permanent impairment was not more than 10%, as required by s 66(1) of the 1987 Act for her to be entitled to compensation for permanent impairment, it was not liable to pay her compensation.
The Appeal Panel notes that Dr O’Neill’s report of 6 June 2022 is in the material before it. Whilst, as the insurer said in its letter to the appellant, he expressed surprise that the appellant’s epilepsy resulted from her head injury, he also noted that many of his colleagues would disagree with him and that “the question of causation needs to be put to an epilepsy specialist”. Dr O’Neill also advised that he assessed the appellant had a permanent impairment of 49% WPI of her nervous system due to her epilepsy. He, like Dr Mellick, made his assessment by reference to the criteria of Table 13-3 of AMA5, but rated the appellant’s impairment at highest end of range of impairment allowed for a Class 3 impairment.
Following receipt of the respondent’s insurer correspondence, the appellant initiated proceedings in the Personal Injury Commission (Commission) by filing with it an Application to Resolve a Dispute dated 18 July 2022 (ARD), seeking the Commission determine her claim for compensation. The matter was referred to a Commission Member, namely
Mr Michael McGrowdie to determine the dispute between the parties regarding whether the appellant’s epilepsy resulted from the appellant suffered on 6 February 2013. Member McGrowdie found that on 6 March 2013 the appellant suffered an injury to her “cervical spine and nervous system (resulting in epilepsy)”. The Member remitted the matter to the President so that it could be referred to a Medical Assessor to assess the degree of the appellant’s whole person impairment from that injury.
The respondent appealed against the member’s finding that the appellant’s epilepsy resulted from her head injury. On 25 September 2024 Deputy President Snell confirmed the Certificate of Determination recording the member’s determination.
A delegate of the President of the Commission then referred the medical dispute between the parties relating to the degree of the appellant’s permanent impairment from her injury to two Medical Assessors. The medical dispute relating to the degree of the appellant’s permanent impairment from her cervical spine was referred to Medical Assessor Peter Honeyman, who was also appointed lead assessor. The Medical Assessor relating to the degree of permanent impairment of the appellant’s “nervous system (epilepsy)” was referred Medical Assessor Ron Granot (the Medical Assessor) to assess.
Medical Assessor Granot issued the MAC with respect to the medical dispute that was referred to him to assess on 11 November 2024. The appellant’s appeal is against that medical assessment. He assessed the degree of the appellant’s permanent impairment of her nervous system from her injury is 0% WPI.
Medical Assessor Honeyman issued a consolidated MAC on 17 December 2024. He recorded that he assessed the degree of the appellant’s permanent impairment from her cervical spine is 6% WPI. To be clear, no issue is raised in the appeal regarding that assessment. As lead assessor Medical Assessor Honeyman consolidated his assessment with the assessment of Medical Assessor Granot and consequently certified that the degree of the appellant’s permanent impairment from her injury is 6% WPI.

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 appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.

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 Medical Assessor Granot recorded the following in the MAC regarding the appellant’s current symptoms:
“She has generalised tonic-clonic seizures up to 3 per week. These are preceded by metallic taste, chest heaviness and breathlessness. At times, these are from sleep. She will wake with tongue biting and incontinence. Her father states that these are onset with blank staring, hand automatisms and then a generalised seizure.
She tells me she also has been diagnosed with ‘pseudoseizures’ in 2019. However, she describes a metallic taste and blank staring – her father states that this stops after 1-3 minutes and she is unresponsive and lacks awareness at the time.
She states she may vomit her tablets.
Intercurrently, she describes poor concentration and variable focus, leading her to
ruminate about this, concerned about being embarrassed after having a seizure (she has had people consider she is an ‘junkie having an overdose’). Cognitively, she is struggling to complete routine tasks, including using a computer, setting up a zoom etc.”
With respect to the appellant’s social activities and activities of daily living the Medical Assessor recorded the following:
“Prior to her injury, she used to ride horses (though stopped once working) and was seeing family and friends every weekend, whilst working fulltime.
She no longer socialises, out of concern for having a generalised seizure and urinating.
She has had seizures when at school (to see her 7 year old daughter) so tends to avoid this. Her parents will do the shopping or she will order online. She is not fit to drive and is not driving.
She lives with her parents, with her mother performing all ADLs – she tends to avoid being near hot stove as she has had burns in the past, and may peel potatoes at times;
She is independent in terms of showering and dressing, and self care.”
The Medical Assessor performed a Montreal cognitive assessment that produced a normal result. He stated that his neurological examination was unremarkable. He noted that EEG telemetry was consistent with the appellant having temporal lobe epilepsy.
Under the heading “Summary” he noted that the appellant had suffered a “closed head injury without features of an assessable traumatic brain injury (no GCS, PTA, or MRI changes)” and that she had “interactable temporal lobe epilepsy onset age 23”. The Appeal Panel notes that GCS is an acronym for Glasgow Coma Scale and PTA is an acronym for post trauma amnesia.
Medical Assessor Granot said that the appellant’s “symptoms are compatible with temporal lobe epilepsy, consistent with the findings of telemetry performed in Westmead in 2019”.
As said earlier, Medical Assessor Granot assessed the appellant had 0% WPI relating to her nervous system. This was because in his view “it is not possible to link definitively the temporal lobe epilepsy with the mild closed head injury suffered by the claimant five months earlier”. Medical Assessor Honeyman explained that post-traumatic epilepsy has established risk factors including early post-traumatic seizures, depressed fracture, inter-cranial hematoma and prolonged unconsciousness greater than 24 hours. Medical Assessor Granot explained that there is less clear evidence in the medical literature of a link between mild traumatic brain injury and post-traumatic epilepsy. He further explained “the mechanism linking the trauma to the epilepsy is it must be a traumatic brain injury, as the substrate triggering the seizures”. He said that a diagnosis of a traumatic brain injury is required to be able to assess epilepsy as post-traumatic. He said “a simple preceding head injury six months prior to the onset of epilepsy is tempting as a cause, but may fall into the Post Hoc Ergo Propter Hoc fallacy whereby a preceding event need not be causative simply because it is preceding”.
Medical Assessor Granot said that the appellant had sustained a closed head injury without the markers of an assessable traumatic brain injury based on the criteria of paragraph 5.9 of the Guidelines. He said “hence there is no assessable traumatic brain injury”. He said, as a counter, “I note that temporal lobe epilepsy is commonly onset the teens and early twenties and this would therefore be a time when such as disorder may first manifest (citation admitted)”.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that Medical Assessor Granot made a finding relating to causation that was contrary to the finding of Member McGrowdie that was confirmed by the decision of Deputy President Snell on 25 September 2024. The appellant submitted that the Medical Assessor was required to assess the degree of her permanent impairment on the basis that her epilepsy resulted from her injury.
In reply, the respondent submitted, relying on Jaffarie v Quality Castings Pty Ltd[1] at [249], that it was open to Medical Assessor Granot to diagnose the appellant had “a closed head injury without feature of an assessable traumatic brain injury (no GSC, PTA, or MRI changes)” as well as an “intractable temporal lobe epilepsy onset at age 23”. The respondent submitted that making that diagnosis was within the Medical Assessor’s jurisdiction and based on his clinical judgment and skill. The respondent submitted that Medical Assessor Granot had jurisdiction to make findings of fact necessary to make a medical assessment, relying on Bindah v Carter Holt Harvey Wood Products AustraliaPty Ltd.[2]
[1] [2014] NSWWCCPD 79.
[2] [2014] NSWCA 264.
The respondent submitted that paragraph 5.9 of the Guidelines relates to an assessment made under s 13.3b of AMA5 and confirms that for an impairment to be assessed from a traumatic brain injury the clinical assessment of the Medical Assessor must include one of the three bullet points contained within the paragraph, namely a Glasgow Coma Scale, medically verified duration of posttraumatic amnesia or significant intercranial pathology on CT scan or MRI. The respondent submitted that because the Medical Assessor did not find any of those existed then he was unable to assess permanent impairment under s 13.3b and Table 13-3 of AMA5.

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.
It was within the Commission’s jurisdiction to determine the factual dispute between the parties regarding whether the appellant’s epilepsy resulted from the incident on
[3] Absolute Aquarium Products Pty Ltd v Taylor [2024] NSWPICPD 61.
6 February 2013. A member of the Commission found that it did. The respondent appealed against that finding to a presidential member of the Commission. As said, Deputy President Snell on 25 September 2024 confirmed the member’s finding.[3] The Appeal Panel does not read either Jaffarie or Bindah as permitting a Medical Assessor to assess a medical dispute inconsistent with a finding of fact that the Commission has jurisdiction to make and which the Commission has made.
As the appellant has submitted, Medical Assessor Granot was consequently required to accept the finding the Commission had made, that is that the appellant’s epilepsy was a consequence of her injury on 6 March 2013, and was required to assess the degree of her permanent impairment relating to her nervous system that resulted from that injury. That is, he was required to assess the appellant’s permanent impairment due to her epilepsy.
Medical Assessor Granot expressed the view that the appellant’s epilepsy was not a consequence of the incident on 6 February 2013. His conclusion was contrary to what the Commission had found. His assessment that the appellant had 0% WPI was on the basis that her epilepsy was unconnected to her injury. The Medical Assessor accordingly made an error, such that the MAC contains a demonstrable error.
The Appeal Panel does not accept the appellant’s submission that because Medical Assessor Granot’s clinical assessment of the appellant did not include GCS, PTA or pathology on a CT scan or MRI, Medical Assessor Granot could not assess the appellant’s impairment by reference to Table 13-3 of AMA5. Table 13-3 of AMA5 provides the criteria by which an assessment of episodic neurologic impairments is made under s 13.3b of AMA5. Paragraph 5.9 of the Guidelines does not modify s 13.3b of AMA5, but rather modifies
[4] Tagg v Racing NSW [2023] NSWSC 1547 at [87]-[91].
s 13.3a, s 13.3c, s 13.3d, s 13.3e and s 13.3f.[4]
Hence, notwithstanding that the appellant did not comply with any of the three bullet points within paragraph 5.9 of the Guidelines, an assessment of her impairment was still required to be made by reference to s 13.3b. The Medical Assessor was wrong not to assess the appellant’s permanent impairment relating to her nervous system by reference to that criteria.
The Appeal Panel consequently must correct that error.
The Appeal Panel observes from the evidence that the appellant is severely disabled by her epilepsy. She is under virtually constant surveillance. She is unable to drive, which is a significant constraint on her independence. She experiences tonic-clonic seizures up to three times a week. She experiences incontinence. She has poor concentration and variable focus. She struggles to complete routine tasks. She no longer participates in her past times. Whilst she is able to shower and dress and attend to her self-care, her mother either performs or assists her with all her other activities of daily living.
The appellant’s symptoms fall within the description of “severe paroxysmal disorder of such frequency that it limits activities to those that are supervised, protracted or restricted”. The Appeal Panel observes that was the finding of both Dr Mellick and Dr O’Neill.

The Appeal Panel considers that the appellant’s symptoms are so severe and that the appellant is so incapacitated and disabled by her symptoms that it is appropriate to rate her impairment as falling within the mid-range of Class 3, that is to say the Appeal Panel rates the appellant as having a 40% WPI relating to her nervous system.
For these reasons, the Appeal Panel has determined that both the MAC the Medical Assessor issued on 11 November 2024 and the Consolidated MAC Lead Medical Assessor Honeyman issued on 17 December 2024 should be revoked (given that Lead Medical Assessor’s Honeyman’s MAC combined the erroneous assessment of Medical Assessor Granot), and that a new consolidated 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:	W4526/22
Applicant:	Lisa Marie Taylor
Respondent:	Absolute Aquarium Products 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 Granot and the Consolidated Medical Certificate of Lead Medical Assessor Honey 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)
Cervical spine	6/02/2013	Chapter 4	Table 15-5	6%	-	6%
Nervous system (epilepsy)	6/02/2013	Chapter 5	Section 13.3b Table 13-3	40%	-	40%
Total % WPI (the Combined Table values of all sub-totals)					44%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2025] NSWPICMP 192

21 March 2025