Toll Personnel Pty Ltd v Imad

DETERMINATION OF APPEAL PANEL
CITATION:	Toll Personnel Pty Ltd v Imad [2022] NSWPICMP 229
APPELLANT:	Toll Personnel Pty Ltd
RESPONDENT:	Charbel Imad
APPEAL PANEL:	Member Paul Sweeney Dr Drew Dixon Dr Brian Stephenson
DATE OF DECISION:	23 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Employer appeals Medical Assessment Certificate (MAC) alleging that Medical Assessor (MA) should have made a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of the respondent’s right lower extremity (knee) and that he failed to give adequate reasons for certification of whole person impairment (WPI) on the basis of range of movements; MA described some movements on examination as “totally inconsistent” and stated that the respondent’s presentation was inconsistent with the video surveillance; Held- that (I) there was no error demonstrated in respect of section 323 of the 1998 Act deduction (II) there was error by the MA in failing explain the path by which he certified WPI; Wingfoot applied; after re-examination by a member of the panel MAC revoked and a new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 December 2021, Toll Personnel Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 9 November 2021.
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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Charbel Imad (the respondent) commenced employment for the appellant as a forklift driver at the premises of Toll Transport Pty Ltd at Eastern Creek in 2010. On 6 July 2018, he suffered injuries in an industrial accident at the Eastern Creek premises while unloading interstate freight from a truck. In the process of unloading pallets a strap from the truck caught in the wheel axle of the forklift and “created a trip line”. The respondent says in his signed statement of 17 June 2021:
“I was standing between the forklift and the truck and was struck by the trip line causing me to fall forwards, hitting my head, left hand, right hip, right knee and right shoulder.”
The respondent was taken by ambulance to Westmead Hospital. While he was discharged the following day, he came under the care of Dr Dowd, a hand surgeon, who performed surgery on his left hand on 10 July 2018 and, again, in late 2018.
Following his discharge, the respondent came under the care of Dr Valliappan, a general practitioner, who has continued to treat him for injuries sustained in the accident.
Dr Valliappan referred the respondent to Dr Kuo, an orthopaedic surgeon in respect of right knee and right shoulder injuries sustained on 6 July 2018. Dr Kuo performed surgery on the respondent’s right knee in January 2019 at Nepean District Hospital. Dr Valliappan also referred the respondent to Dr Lim a psychologist, who has treated him for anxiety and depression.
By his written statement, the respondent says that he was involved in a motor vehicle accident on 8 March 2014 in which he sustained injuries to his “back, neck and right shoulder”. He says that following that injury he “only required a few days off work” and continued to perform his full duties with the appellant. He was treated by Dr Valliappan and by a pain management specialist. He was awarded $493,558.45 by the Claims Assessment Resolution Service in respect of those injuries.
The respondent was paid weekly payments of compensation pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act) in respect of his absences from employment resulting from the injury of 6 July 2018. By these proceedings, he claims permanent impairment compensation pursuant to s 66 of the 1987 Act.
On 7 December 2020, the respondent saw Dr Matthew Giblin, an orthopaedic surgeon, at the request of his solicitors. Dr Giblin recorded that the respondent complained of difficulties using his right shoulder, utilising his right knee and making a grip with his left hand. He recorded that he was not working and had “problems with certain aspects of his personal care” due to the stiffness of his left hand and fingers.
Dr Giblin assessed the respondent as suffering from 45% whole person impairment (WPI). This was comprised of 16% WPI in respect of the right upper limb (shoulder), 11% WPI in respect of the right upper extremity (knee) and 26% WPI for the injuries to the respondent’s left upper limb (wrist and fingers).
On 22 July 2021, Dr Richard Powell provided a report to the appellant’s solicitors in respect of permanent impairment. On examination, Dr Powell found that the respondent’s presentation “was a little unusual”. He continued:
“There was marked restriction in range of motion in the left hand, right shoulder and right knee which is difficult to explain on the basis of the reported injuries and pathology identified on the investigations. I formed the impression that there may be a component of self-limiting in his examination though no definite inconsistencies were identified.”
Dr Powell also stated:
“I have significant concerns in relation to the assessed level of whole person impairment. I believe this grossly overestimates his current level of impairment. I find it difficult to reconcile the extent of his impairment and functional limitations with the reported mechanism of injury and injuries sustained.”
Nonetheless, Dr Powell assessed 28% WPI in respect of the left upper limb (hand and wrist), 11% in respect of the right upper limb (shoulder), and 18% WPI in respect of the right lower limb (knee). On the combined tables this totalled 47% WPI.
By a supplementary report, dated 28 July 2021, Dr Powell expressed the opinion that video surveillance of the respondent in November and December 2020 validated his earlier opinion that the respondent was “not as significantly incapacitated as he appeared at the time of assessment”. He reassessed WPI while conceding that:
“It is very difficult to be objective when adjusting whole person impairments based upon video surveillance even after demonstrating and confirming marked inconsistency.”
Dr Powell provided a revised assessment of permanent impairment. He deducted four fifths of the 11% he had assessed in respect of the right shoulder and stated that the WPI should be assessed at 2%. Similarly he made a four fifths deduction in respect of the respondent’s hand, wrist and elbow which produced 6% WPI. In respect of the respondent’s right knee, he stated that the surveillance demonstrated a fairly normal range of motion and he therefore did not believe that range of motion was an “appropriate method of assessment”. He assessed the respondent on the diagnosis based estimate at 4% WPI. Thus he assessed total WPI of 12%.
The conflicting opinions of Dr Giblin and Dr Powell gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. A delegate of the President, therefore, referred the dispute to a Medical Assessor to assess the following body parts:
·        right upper extremity (shoulder);
·        right lower extremity (knee), and
·        left upper extremity (left middle finger, left ring finger, left little finger and left wrist).
Dr Meakin assessed that the dispute on 9 November 2021. He assessed 42% WPI made up of 6% WPI in respect of the right shoulder, 12% WPI in respect of the right knee and 30% WPI in respect of the left upper extremity (elbow, wrist, hand). It is from that assessment that the appellant appeals.

PRELIMINARY REVIEW

The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As the panel determined that there was prima facie error in the MAC it determined that the respondent worker should be examined by a member of the panel, Dr Drew Dixon.

EVIDENCE

The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Dixon of the appeal panel conducted an examination of the respondent on 19 April 2022. Insofar as it is relevant, his report is as follows:
“1. The workers medical history, where it differs from previous records
The medical history is unchanged.
2.    Additional history since the original Medical Assessment Certificate was performed
No additional history except that physiotherapy has ceased.
3.    Findings on clinical examination
He is 178cm tall and weighed 112kg and walked with a limp on the right and wore a left wrist guard and elasticised bandage around the little, ring and middle fingers of his left hand. There was some droop of his right shoulder.
On examination of his right shoulder forward flexion was 90 degrees, active abduction was 70 degrees with impingement, impingement was 30 degrees, adduction 30 degrees, internal rotation 40 degrees and external rotation was 50 degrees. There was tenderness of the right trapezius muscle and anterior deltoid and shoulder girdle power was grade 4 out of 5.
He had a full range of motion of his other shoulder and a full range of motion of his cervical spine.
There was no neurological deficit of either upper extremity. There was 1cm of wasting of his right upper arm.
There was stiffness of his left wrist with flexion 30 degrees, extension 30 degrees, pronation was full and supination was 60 degrees. Radial deviation was 10 degrees and ulnar deviation 20 degrees. There was tenderness on the dorsum of his wrist.
He had a full range of motion of the other wrist and elbow.
There was a full range of motion of the left thumb and index finger. The middle finger showed stiffness at the MCP joint with flexion 0 degrees to 30 degrees and the PIP joint was 0 degrees to 10 degrees and DIP joint 0 degrees to 20 degrees. The ring finger showed MCP flexion of 0 degrees through to 30 degrees and PIP 0 degrees through to 10 degrees and DIP through to 30 degrees. The left little finger showed MCP flexion degrees to 30 degrees and PIP flexion 0 degrees to 10 degrees and DIP joint 0 degrees to 20 degrees. There was no evidence of scarring where his K wire had been removed.
There was a full range of motion of the right hand and wrist and his grip strength was grade 5 out of 5 and his grip strength in his left hand, using his thumb and index finger, was grade 4 out of 5. There was some hypersensitivity to light touch involving the ulnar three digits. There was no abnormal colour, temperature, abnormal sweating or nail changes in the left hand and no wasting of the left forearm.
With his right knee, he walked with a limp on the right and the range of motion while standing was 15 degrees full extension. He was unable to reproduce recurvatum. There was retropatellar crepitus of his right knee with flexion through to 80 degrees. He was unable to flex it beyond that due to pain. There was tenderness of the anteromedial and anterolateral joint line and tenderness of the lateral patellofemoral joint. There was some popliteal fullness of his right knee. He reported this area was tender. There was no mal alignment on standing. He was unable to toe or heel walk due to knee pain and his squat test was restricted by one half due to knee pain. He did not improve the range of motion while sitting on the examination couch or when recumbent.
The left knee showed a full range of motion.
4.    Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations.
5.    Impairment Assessment
His impairment assessment for the right shoulder from Pie Charts 16-40,1 6-43 and 16-46, Pages 476-9, AMA V was 17% upper extremity impairment which equates to 10% whole person impairment less one-half for pre-existing condition, giving 5% whole person impairment.
That for his left upper extremity is from Pie Charts 16-21 and 16-23, 16-25, 16-28, 16-31 and 16-37, for his wrist and hand, Pages 461 to 474, 16% upper extremity impairment for the wrist.
That for the middle finger is 78% digit impairment which equates to 16% hand impairment.
That for the ring finger is 77% impairment which equates to 8% hand impairment for the ring finger and for the little finger it is a 78% digit impairment equates to 8% hand impairment.
This gives a total for the little, ring and middle fingers of 29% hand impairment which equates to 26% upper extremity impairment.
When this is combined with the 16% upper extremity impairment for the left wrist, it gives 38% upper extremity impairment which equates to 23% whole person impairment.
That for the stiffness of his right knee is from Table 17-10, Page 537, 12% whole person impairment.
When this is combined with the 5% whole person impairment for the right shoulder, it gives 37% whole person impairment.
There was no pre-existing condition in the right knee.
There was pre-existing condition in his right shoulder, as previously noted by the original Assessor.
There was no pre-existing condition in the left hand or wrist.”

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel. In summary, the appellant says that there is error in the assessment as the MA “did not give reasons for his decision, did not deal with a clearly articulated issue and failed to provide sufficient reasons”.
The appellant’s submissions refer to several cases from appellate courts dealing with the sufficiency of reasons in the determination of Medical Assessors under statutory compensation schemes. These included Farr v Insurance Australia Ltd t/as NRMA Insurance Ltd [2014] NSWSC 1435 (Farr) and Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 482 (Wingfoot). The panel will briefly discuss the relevance of these cases below.
The first specific error identified by the appellant was the MA’s failure to make a deduction in respect of the respondent’s right lower extremity (knee) pursuant to s 323 of the 1998 Act. The appellant submitted that as the respondent’s qualified doctor had made a one tenth deduction it was necessary for the MA to give reasons as to why he did not “take the same approach”. It followed that the MA did not “deal with that clearly articulated issue of a deduction being made” contrary to the case law.
Secondly, the appellant submitted that there was:
“no reasoning given as to how the surveillance material fits with the respondent’s presentation and WPI assessed, much less was the issue engaged with by Assessor Meakin. It is not possible to appreciate how the respondent’s presentation was totally inconsistent with the objective muscular [sic] of his right lower limb yet the restrictions were relied on to arrive at a WPI rating.”
While the point is not elegantly made, the panel assumes that the appellant submits that it was inappropriate for the MA to determine WPI on a range of movement basis when he was of the opinion that the range of movement of the right lower extremity was inconsistent and unreliable.
In respect of the s 323 ground the respondent submitted that the appellant had not identified any evidence of a pre-existing condition of the right knee. Equally, there was no evidence of a pre-existing condition of the knee. In the absence of evidence of a pre-existing condition, there was no basis for a finding that such condition contributed to the respondent’s impairment.
The respondent also argued that as the issue of a s 323 deduction had not been raised in the dispute notice it was unnecessary for the MA to give consideration to the question in his determination. He referred to Skates v Hills Industries Ltd [2021] NSWCA 142 which held that a medical dispute was defined by the correspondence and medical evidence exchanged between the parties.
Finally, on this point, the respondent submitted that Dr Giblin was in error in opining that a
s 323 deduction should be made. He did not identify a pre-existing condition of the knee and did not explain how such a pre-existing condition would have contributed to the impairment.
In respect of the second ground of appeal, the respondent submitted that the MA did not suggest that the range of movement measurements he made on examination were “unreliable or not reproduceable”. He had made “an observation about the respondent’s gait”. Notwithstanding that observation, he had made a clinical finding that the respondent’s “ right knee was stiff”.
The respondent submitted that the appellant made no submission in respect of inconsistency between the clinical presentation and the surveillance in respect of the left hand and wrist or right upper extremity (shoulder). Further, the MA did not state in the MAC that there was inconsistency between his examination findings and what he saw on video in respect of the respondent’s upper extremities. The respondent continued:
“It is apparent from a reading of the assessor’s reasons that he had considered the surveillance material but had made a clinical judgement that his measurements on examination were reliable. When the decision is read as a whole, the assessor has set out his examination findings and measurements. He has not suggested that the measurements are unreliable or could not be reproduced.”
The respondent also criticised the appellant for not identifying what conclusion it says the MA should have reached. It says that:
“The appellant has not set out what it says the significance is of the surveillance material is and has not articulated any argument as to why the surveillance material should be seen as overriding the reproduceable clinical findings made by all the doctors who have assessed the respondent.”

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in its application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The MA recorded the respondent’s symptoms at the time of his assessment as follows:
“Mr Imad remains symptomatic in relation to his left wrist and hand along with right shoulder and right knee. He complains of a feeling of stiffness and restricted range of motion in the ulnar 3 digits but states that his thumb and index finger are functionally normal. He states that he is unable to make a fist. He currently wears elastic finglets over each of the 3 ulnar fingers.
In the right shoulder he reports pain over the superior aspect of the shoulder accompanied by decreased range of motion and a feeling of stiffness. He can’t sleep on the right side.
He also described anterior knee pain which he states is intermittent accompanied by swelling and clicking, although swelling was not present today. He states that he is unable to run or squat.
Mr Imad states that the pain in the hand/wrist is the most significant discomfort with pain in the right knee and then right shoulder in descending order.”
The MA then recorded a significant past history of neck and bilateral shoulder symptoms “associated with a motor vehicle accident in March 2014”. He referred to reports to the compulsory third party insurer in respect of these injuries in which the respondent was said to be unable to elevate his shoulders above 90º on 14 October 2014. He records that ultrasound examinations performed at that time described “bilateral supraspinatus tendinosis”. The MA records that the respondent continued to complain to medical practitioners of problems with his neck, back and shoulder. He also complained on occasions of “significant right knee pain”. He continues:
“The report of Dr Wilcox also notes that the local practitioner notes on 17 July … Couple the horrors stated that there was a 90º abduction in the right shoulder with positive impingement which is similar to findings noted by Dr Valliappan, local practitioner, in earlier notations in the years prior to this current accident.”
On examination the respondent walked with a limp holding his right knee flexed at approximately 20º stating that he cannot straighten it. He states that on his examination it was “my clinical finding that the right knee was stiff”.
After reviewing the radiological evidence, the MA accepted that the respondent had sustained injuries to his left hand, right shoulder and right knee at the time of the subject incident. In respect of “consistency of presentation” he recorded:
“Imad is adamant that prior to the current work accident he was not having any discomfort in his right shoulder or right knee despite the evidence noted in the report of Dr David Wilcox, referencing local medical practitioner records, up to the time just before the current accident. It is my opinion that the injury to the left wrist and ulnar 3 fingers has legitimately occurred at the time of the injury on 6 July 2018 work accident.
The presentation relating to the right lower extremity-knee is difficult to understand with the lack of significant wasting of the right knee and calf associated with a right lower extremity that Mr Imad will not allow full weight bearing to occur upon is totally inconsistent as is the inability to demonstrate a better extension range than that noted on examination.” (panels italics)
Despite his reservations the MA assessed WPI of the respondent’s left wrist and hand, right shoulder and right knee on a range of movement basis. In respect of the right knee he awarded the respondent 4% as he had undergone a partial meniscectomy. He continued:
“There is a significant range of motion loss relating to the right knee with movement from 20º flexion deformity to 80º noted.”
The MA also viewed the video surveillance, after which he recorded:
“At times his gait appeared normal and he walked with a normal heel toe gait.”

Section 323

The panel does not accept that the MA erred in not making a deduction for a previous injury or pre-existing condition of the right knee pursuant to s 323 of the 1998 Act. It is true that there are references to pain in both knees in the records of Dr Valliappan in the period before the subject injury, although a review of the clinical note of 12 June 2018 to which the MA refers does not reveal any reference to knee pain. It refers to pain in “back, neck, shoulder”.
While there are references to knee pain from time to time in the pre-injury clinical record, it does not appear that there were any investigations in respect of the respondent’s right knee prior to the subject accident. There is no evidence that the pathology identified in the respondent’s right knee following the injury of 6 July 2018 was present before that injury.
Dr Wilcox thought that it was “possible” that the pathology was “pre-existing”. However, this opinion was based upon an assumption that the respondent did not injure his right knee in the subject accident. The MA was not permitted to make that assumption, as the matter was referred to him for assessment on the basis of an injury to the right knee.
The MA was clearly aware of the s 323 issue as he made a substantial deduction in respect of the respondent’s right shoulder. Clearly, he formed the view that there was no proper basis for a deduction to be made in respect of the respondent’s right knee. In view of the paucity of evidence in respect of a pre-existing condition of the knee, no other course was open to him. Section 323 is a disentitling provision. It is incumbent upon an employer to adduce sufficient evidence to satisfy a Medical Assessor that a prior injury or pre-existing condition contributes to an impairment. The evidence in this case does not permit such a finding.
It is, therefore, unnecessary to consider the wider point made by the respondent that the issue of a s 323 deduction was not raised in the dispute notices, the correspondence, or the medical evidence. The panel notes, however, that the parties agreed to refer the matter for assessment of the degree of permanent impairment on the basis of a referral that included the following:
“whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d)).”
In the opinion of the panel, if there was compelling evidence of a pre-existing condition of the respondent’s right knee, it would have been open to the MA to make a deduction in respect of it. There was such evidence in respect of the respondent’s right shoulder. The MA made a substantial deduction. The respondent does not suggest that it was inappropriate for the MA to make such a determination.

Failure to give reasons

It is improbable that the reasoning in Farr is applicable to a Medical Assessor in the Workers Compensation Division of the Personal Injury Commission. The statement that an explanation must be given for a preference for one conclusion rather than another is difficult to understand. The authority quoted in support of the statement is one which deals with the obligation of a MAP to provide reasons and not the obligation of an assessor. The principle relates to the role of the medical appeal panel and not to an MA. Importantly, in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 482 the High Court of Australia emphasised that the role of the medical panel was not “arbitral nor adjudicative”. Its role was not to choose between competing arguments nor to opine on the correctness of other medical opinions on the question in issue. That seems to put the issue beyond doubt.
Nonetheless, the panel concluded that the MA had not complied with the attenuated obligation to provide reasons established by Wingfoot. He had not explained the actual path of his reasoning.
It is evident from the quotations from the MAC set out above, that the MA had significant doubts as to the range of movement demonstrated by the respondent on examination. He described the respondent’s inability to fully weight bear and to achieve a better range of extension than that noted on his examination as “totally inconsistent”. He also noted that the surveillance footage in respect of 20 November demonstrated the use of both shoulders, opening and closing the rear of a hatchback van and at times the respondent’s “gait appeared normal and he walked with a normal heel toe gait”.
Notwithstanding, his characterisation of aspects of the respondent’s range of motion on examination as totally inconsistent, he accepted that very same range of motion as a basis for his calculation of WPI of the various body parts referred for assessment. There is no indication in his reasons as to the pathway by which he proceeded from the view that the appellant’s movements were totally inconsistent to a conclusion that they could be accepted for the purpose of certifying whole person impairment. There is no suggestion that he found the range of movement in respect of the respondent’s lower limb plausible and consistent. The thrust of his reasons is to the contrary.
There was, of course, a good deal of evidence before the MA that those aspects of the respondent’s presentation were unreliable. In a report of 12 April 2019, Dr Wilcox, a surgeon referred to his inability to assess the appellant’s right knee and not right shoulder “because of signs of abnormal pain behaviour and inconsistency”.
Similarly, Dr Powell expressed the opinion that there was marked inconsistency and after viewing the video surveillance stated that the level of impairment which he previously assessed “grossly over-estimates his actual level of impairment”.
While it is unnecessary for the MA to choose between these opinions and that of Dr Giblin, it was necessary for him to engage with the evidence. That required him to give some brief explanation as to why he accepted seemingly inconsistent range of movements as a basis for his examination.
During the preliminary conference the panel carefully considered the surveillance DVD. Unfortunately, the respondent worker is obscured by motor vehicles or vegetation during substantial parts of the video which was exposed on 20 November, 4 December and 20 January 2020. The respondent, however, was clearly observed removing items from the work van, including a coiled cable, a road safety hat and a safety fence using his left hand. He also utilises his left hand in closing the rear door of the van. On several occasions the respondent works, or more frequently observes his colleagues to work, while kneeling on his left knee with his right leg extended behind him. At times during the surveillance, he walks with a normal gait while on other occasions he appears to demonstrate a limp.
Having concluded that there was error, the panel determined it was necessary for a member of the panel to carry out a thorough examination of the respondent involving repeated testing of the body parts to ensure consistency prior to assessing WPI. During his assessment of the respondent on 19 April 2022, Dr Dixon carried out repetitive assessment of the body parts examined including assessment of the right knee while standing and lying on the couch. He informed the panel that he had also carefully observed the respondent walking to and from his examination rooms. He was persuaded that his examination findings accurately reflected loss of of movement in the respondent’s right knee, right shoulder, hand and wrist.
On receipt of Dr Dixon’s report the panel considered again whether the video surveillance evidence was inconsistent with Dr Dixon’s findings. The medical practitioners on the panel were of the opinion that, while the video surveillance suggested that the respondent had a capacity for work, it did not cast doubt on Dr Dixon’s examination findings. Restriction of movement of the right knee may depend on a range of factors including the use of analgesics, the time of day, and the vagaries of the underlying pathology. The film did not demonstrate the respondent to walk freely for long distances or to use his limbs in a way that was unequivocally inconsistent with his presentation at the medical examination. Accordingly, the panel determined that it should accept the findings on re-examination.
The panel discussed the opinion of Dr Wilcox and Dr Powell that the respondent’s presentation was so exaggerated that either no proper assessment could be made of his WPI by the range of movement method or, alternatively, WPI should be reduced substantially to achieve an assessment of WPI that properly reflected the respondent’s impairment. The specialist medical practitioners on the panel did not agree with Dr Powell’s assessment of the video surveillance. They concluded that there was no proper basis to reduce or modify WPI found on examination to reflect alleged inconsistencies in the respondent’s presentation. While they were concerned with the need for consistency, they accepted that the respondent’s presentation at Dr Dixon’s examination was reliable and consistent with the limited video surveillance.
As a result of the re-examination by Dr Dixon, the panel determined that the respondent suffered 37% WPI as a result of the injury of 6 July 2018.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

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 Dr Meakin 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 WorkCover Guides	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. Right upper extremity (shoulder)	6/7/18	Chapter 2 pp 13-15	Table 16.40 to 16.46. Table 16.3. AMA5	10%	½	5%
2. Right lower extremity (knee)	6/7/18	Chapter 3 pp 16.25	Table 17.33, Table 17.10, Table 17.2, page 5 AMA 5	12%	NA	12%
3. Left upper extremity (left middle finger, left ring finger, left little finger and left wrist)	6/7/18	Chapter 2 pp 13-15	Figures 16.37, 16.20 16.31, 16.21 16.23, 16.25’ table That 16.2, 16.3 AMA5	23%	NA	23%
Total % WPI (the Combined Table values of all sub-totals)					37%

Paul Sweeney
Member
Drew Dixon

Medical Assessor

Brian Stephenson

Medical Assessor

19 May 2022

[2022] NSWPICMP 229

23 May 2022