Tremlett v Hays Specialist Recruitment (Australia) Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Tremlett v Hays Specialist Recruitment (Australia) Pty Limited [2023] NSWPICMP 146
APPELLANT:	Joel Ben Tremlett
RESPONDENT:	Hays Specialist Recruitment (Australia) Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Robin Fitzsimons
MEDICAL ASSESSOR:	Michael Davies
DATE OF DECISION:	17 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of whole person impairment (WPI) from brain injury; appellant contended that Medical Assessor (MA) did not have regard to all the evidence, that MA did not apply correct criteria, that MA did not explain why his opinion differed from another Independent Medical Examiner’s (IME) opinion, and that MA made decision about injury inconsistent with the finding of a Member; Held – Appeal Panel held that the MA is not required to explain why his opinion differed from another IME’s opinion and Appeal Panel rejected all other submissions of the appellant; Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 January 2023 Joel Ben Tremlett, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr John O’Neill, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 December 2022.
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.
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 commenced employment with Hayes Specialist Recruitment (Australia) Pty Ltd, the respondent, in mid-November 2011. On 24 November 2011 he was working in the Pitt Street Mall in Sydney assisting others to unload a truck carrying building materials. The appellant was on the ground, receiving materials that another unloaded from the back of the truck. That other person released a large piece of heavy timber to pass to the appellant whilst the appellant was already carrying another piece of timber. The appellant in a statement he signed on 16 May 2019 said that the timber that the other person released hit him on his head and knocked off the hard hat he was then wearing. The appellant said he fell to the ground and that he may have been unconscious, but he was unsure about that.
The appellant on 17 April 2012 was examined by Dr Sam Perla at the request of the respondent’s insurer, who obtained a history from the appellant that he was unsure as to whether he lost consciousness and that he vomited soon after the incident and thought he had “blacked out” for a few seconds. The appellant also provided a history to neurosurgeon Dr Darweesh Al-Khawaja on 13 May 2013, to whom he had been referred by his general practitioner (GP), that he was knocked unconscious and suffered a concussion and neck pain in the incident.
The appellant consulted Dr New and Dr Teychenne at the request of his solicitors. Dr New is an orthopaedic and spinal surgeon and Dr Teychenne is a neurologist.
In a report dated 27 August 2019, Dr New advised the appellant’s solicitors that he assessed the appellant had 35% whole person impairment (WPI) from the appellant’s injury, comprising 10% WPI for the lumbar spine, 25% WPI for the cervical spine, 3% WPI for the impact of the appellant’s lumbar spine impairment on the appellant’s ADLs and 4% WPI under paragraph 4.37 and Table 4.2 of the Guidelines for the effect of surgery. Dr New advised that he could not assess any impairment the appellant had for a traumatic brain injury as that was outside his area of expertise.
Dr Teychenne, in a report dated 6 January 2020 addressed to the appellant’s solicitors, explained that he assessed the appellant had 55% WPI from the appellant’s injury. He explained that comprised:
(a)    30% WPI which Dr Bentivoglio had assessed the appellant had for his cervical spine;
(b)    15% WPI for the spine (which Dr Teychenne explained was due to the appellant’s imbalance and circumduction at the right leg when walking);
(c)    a further 7% WPI for the spine (which Dr Teychenne explained was for urinary urgency and incontinence), and
(d)    20% WPI for the central and peripheral nervous system.
The Appeal Panel notes that Dr Bentivoglio examined the appellant on 2 July 2018 at the request of the respondent’s then insurer.
On 8 April 2020 the appellant completed and signed a Personal Injury Claim Form seeking compensation from the respondent’s insurer and in which he detailed that he had 59% WPI from the injury he suffered on 24 November 2011 and in which he explained that that injury had affected his lumbar and cervical spine, nervous system and urinary tract. He also detailed in that claim form that he relied upon reports of Dr Charles New dated
27 August 2019 and reports of Dr Teychenne dated 10 September 2019,
17 September 2019, 6 January 2020 and 24 January 2020 to support his claim. On
8 April 2020 the appellant’s solicitors wrote to the respondent’s insurer enclosing with their letter copies of the claim form the appellant had completed and copies of the reports of
Dr New and Dr Teychenne upon which the appellant relied to support of his claim.
On 26 October 2020 the respondent’s solicitors wrote to the appellant’s solicitors advising them that the respondent accepted the injury the appellant had claimed to his cervical spine but disputed the appellant suffered injuries to his lumbar spine and to his central or peripheral nervous system and that he suffered a neuropsychological injury or a consequential condition to his urological system. The respondent’s solicitors enclosed with their letter a notice the respondent’s insurer had issued under s 78, also dated
26 October 2020, confirming what the respondent’s solicitors advised in their letter.
On 14 July 2022 or thereabouts the appellant initiated proceedings in the Commission, seeking determination of his disputed claim. The appellant particularised in the Application to Resolve a Dispute that he filed to initiate the proceedings, that he claimed 63% WPI. The “systems” which he particularised as being the subject of his claim were his cervical spine, lumbar spine, TEMSKI/scarring, nervous system, urinary and reproductive systems and pelvis.
The matter was referred to Member Ms Jacqueline Snell. She conducted an arbitration on
26 August 2022. On 23 September 2022 the Commission issued a certificate recording the determinations and findings Member Snell made on that day. The Member’s findings included that the appellant suffered an injury to his nervous system (brain injury) on
24 November 2011 in the course of his employment and to which his employment was a substantial contributing factor, and that the appellant suffered a consequential condition to his urinary system. Member Snell made an award for the respondent with respect to the appellant’s allegation of consequential condition to his lumbar spine. Member Snell directed that the appellant’s claim for permanent impairment compensation resulting from the injury the appellant suffered on 20 November 2011 to his nervous system and the consequential condition to his urinary system be remitted to the President to be referred to a Medical Assessor for assessment of the appellant’s WPI. Member Snell noted that the parties agreed that the appellant had 30% WPI from an injury to his cervical spine on 24 November 2011, which included surgical scarring.
A delegate of the President duly referred the matter to the Medical Assessor on
31 October 2022. As mentioned the Medical Assessor issued the MAC in response to that referral on 20 December 2022. The Medical Assessor certified that he assessed the appellant had 0% WPI relating to his nervous system from the injury on 24 November 2011 and 0% WPI relating to urinary symptoms from his injury on 24 November 2011.

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 Appeal Panel, for reasons explained below, found, firstly, that the Medical Assessor assessed the appellant’s permanent impairment based on correct criteria and, secondly, that the MAC did not contain a demonstrable error. Consequently, the Appeal Panel is unable nor needs to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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.

The MAC

The Medical Assessor examined the appellant on 14 December 2022. The history the Medical Assessor obtained with respect to the occurrence of the appellant’s injury accords with what the appellant detailed in his statement of 16 May 2019. The Medical Assessor noted that the appellant has said that subsequent to the length of timber hitting his head, his next awareness was when a nurse was shining a light in his eyes at the hospital to which he was taken.
The Medical Assessor detailed in the history he provided in the MAC relevant consultations and investigations the appellant had following his injury. It is apparent from that, that the Medical Assessor utilised the clinical records in evidence relating to the appellant to obtain the history relating to the appellant’s injury.
The Medical Assessor set out in the history he obtained the treatment the appellant had received for his injury.
Relevant to the issues raised in the appeal, the Medical Assessor noted that the material that the Commission provided him, which comprised the Application to Resolve a Dispute and the documents attached to that and the respondent’s Reply to that and the documents attached to that reply, did not contain an ambulance report nor a record of assessment issued by the hospital to which the appellant was taken following his injury. The Medical Assessor also noted that following the appellant suffering injury the appellant reported feeling confused and disorientated. The Medical Assessor noted that an MRI of the brain that neurosurgeon
Dr Al-Khawaja arranged, and which was done on 3 July 2013, was reported as normal.
The Medical Assessor noted that the appellant was presently particularly concerned about his memory loss. The Medical Assessor noted that the appellant said that he would forget what he intended to do and might forget what he was talking about within a conversation. The Medical Assessor noted that the appellant was able to manage his day to day activities despite memory loss and that he had no trouble with his finances including paying bills and car registration.
The Medical Assessor noted that the appellant had consulted clinical neuropsychologist Associate Professor Lah on 10 November 2018. The Appeal Panel observes that this was at the request of the respondent’s then insurer. The Medical Assessor recorded that Associate Professor Lah had noted within her report to the insurer the following:
“some reduction in working memory and speed of information processing. Marked impairments are found in memory: learning and recall of information after delays. Some aspects of executive skills are also impaired. Striking problems were reported with anxiety and depression and behavioural regulation in everyday life. Mr Tremlett’s scores on the test that validates effort are indicative of incomplete effort on assessment. Hence, the current findings are unlikely to be representative of his underlying skills.”
The Medical Assessor recorded in the MAC making the following findings from his examination of the appellant:
“Mr Tremlett initially demonstrated quite an abnormal gait appearance but I then asked him to be sure he was not exaggerating as it was usually apparent to doctors when patients were demonstrating abnormalities that might not be evident outside the examination room.
Mr Tremlett’s gait was then essentially normal. When asked to walk heel to toe he was able to do so though with marked swaying of his upper body. When asked to stand still with his eyes closed, he did so for a few seconds and then moved off the spot. He was able to stand fully on the balls of both feet and the heels.
The fundi were normal. The pupils were equal and normally reactive to light. External ocular movements were full without nystagmus. He could hear the rubbing of fingers in front of both ears.
On formal examination the restriction of neck movement was much greater than when he was talking to me and gesticulating whilst he was giving the history. Under formal examination he could not bend his neck from the midline and could only just extend his neck beyond the midline. There was only minimal rotation of the neck to either side.
Limb bulk was normal. Lower limb tone was normal. There was normal power of the left arm and both legs. There was a slight tendency to give way when testing power of the right arm but full power could be obtained with persistence. The right supinator and biceps jerks were absent with all remaining upper and lower limb deep tendon reflexes symmetrical and 1 to 2+. There was no inverted right supinator reflex. The plantar responses were firmly flexor.
Vibration was perceived normally at both great toes. There was a globally subjective blunting of pinprick throughout the right arm compared to the left.”
When summarising the appellant’s injury, the Medical Assessor said that the appellant had sustained a minor closed head injury. The Medical Assessor noted that the appellant said he remembered nothing between the time of his injury and being assessed at the hospital to which he was taken. The Medical Assessor noted that there was no document available within the documents he had been provided by the Commission that indicated the appellant had a loss of consciousness. The Medical Assessor noted that there was no Glasgow Coma Score within the material that was provided. The Medical Assessor said that the appellant did not experience posttraumatic amnesia. The Medical Assessor noted that the imaging done of the appellant’s brain was normal. The Medical Assessor said “this is not the type of head injury which would be expected to give rise to permanent impairment of cognitive function in accordance with paragraph 5.9 of the Guidelines”.
The Medical Assessor recorded that Associate Professor Lah’s view was that the appellant had a mild traumatic brain injury which Associate Professor Lah noted can result in “transient neuropsychological difficulties that resolve over ensuing weeks to months”. The Medical Assessor also noted that Associate Professor Lah noted that the assessment she had done was indicative of incomplete effort by the appellant and that the findings from the neuropsychological assessment were at odds with the gravity of his head injury and unlikely to be representative of the appellant’s underlying abilities.
The Medical Assessor recorded that he based his assessment on the history he obtained, the examination he conducted of the appellant and his review of the documents that the Commission had provided him. The Medical Assessor when explaining his assessment said that the appellant had no cognitive impairment arising from the mild head injury the appellant had sustained. The Medical Assessor recorded in Table 2 attached to the MAC that he assessed the impairment of the appellant’s nervous system by reference to paragraph 5.9 of the Guidelines. As mentioned earlier, the Medical Assessor assessed the appellant had 0% WPI from the injury to his nervous system. The Medical Assessor said he disagreed with
Dr Teychenne’s conclusion that the appellant had a moderate traumatic brain injury with impairment. Dr Teychenne in his reports had said that he diagnosed the appellant had an incomplete cervical chord lesion, which the Medical Assessor said was ludicrous. The Medical Assessor said the appellant never had symptoms, signs or radiological evidence of cervical myelopathy.

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 the Medical Assessor assessed his impairment relating to his nervous system based on incorrect criteria because the Medical Assessor did not have regard to the history he had provided to Dr Perla and to Dr Al-Khawaja regarding being unconscious and suffering concussion at the time of his injury occurred, and because the Medical Assessor did not have regard to the fact that “on all the available evidence the appellant was taken to Sydney Hospital by work mates”. The appellant submitted that the Medical Assessor did not have regard to his evidence regarding loss of consciousness and cognitive impairment resulting from his work injury. Further the appellant submitted that the Medical Assessor did not indicate in the MAC that he tested his memory or concentration during physical examination of him.
The appellant also submitted, at paragraph 20 of his submissions, that “the absence of reference to the results of the neuropsychological testing that Associate Professor Lah undertook leads to the conclusion that the MAC is based on incorrect criteria”. The appellant submitted that the neuropsychological testing is “the gold standard” for assessing traumatic brain injury. The appellant also submitted that the Medical Assessor “selectively quoted from the findings of the neuropsychological testing”. (The Appeal Panel observes that there appears to be conflict in these submissions in that the appellant submits that the MAC contains no reference to the results of Associate Professor Lah’s test and then submits that the Medical Assessor selectively quoted from the results of the tests).
The appellant submitted that the Medical Assessor ignored the findings of Dr Bentivoglio who diagnosed that the appellant had “some persistent cognitive post concussion effects even though his MRI scan was normal”.
The appellant submitted that the Medical Assessor based his assessment on incorrect criteria because the Medical Assessor did not refer to the correct guidelines when making his assessment and did not indicate that he followed the correct guidelines and did not consider or refer to all available relevant evidence regarding his cognitive impairments.
The appellant submitted that the MAC contains a demonstrable error because the Medical Assessor did not use the Table 13-5 from AMA 5 for Clinical Dementia. The appellant submitted that MAC contains a demonstrable error because the Medical Assessor did not refer to relevant medical evidence, including the opinion of Dr Bentivoglio. The appellant submitted that the MAC contains a demonstrable error because the Medical Assessor gave no weight to the findings of the neuropsychological assessment testing Associate Professor Lah had done.

The appellant submitted that the reasons a Medical Assessor must provide must be sufficient to explain the actual path of reasoning by which the Medical Assessor reaches his or her opinion in sufficient detail to enable a court to see whether the opinion involves an error of law. The appellant submitted that the only explanation the Medical Assessor provided for assessing his impairment to be 0% WPI for cognitive issues was that there is “no cognitive impairment arising from the mild head injury sustained at the time of the injury”. The appellant submitted that that does not reveal the Medical Assessor’s actual part of reasoning for his conclusion.
The appellant noted that Member Snell determined that the respondent had sustained an injury to his nervous system (brain injury). The appellant submitted that the Medical Assessor made no reference to that finding and gave “no indication why he apparently disagrees with the findings of Member Snell regarding injury in relation to the appellant’s nervous system (brain injury)”. The appellant submitted that “contrary to his function and erroneously, [the Medical Assessor] has considered it open to him to reopen the question of whether there had or had not been an injury to the brain”.
In reply, the respondent submitted that the Medical Assessor addressed the evidence attached to the Application to Resolve a Dispute and the Reply, which included the neuropsychometric testing Associate Professor Lah had done. The respondent submitted that the Medical Assessor made an assessment of the appellant’s impairment based on the totality of the evidence including the test results and the Medical Assessor’s findings from his examination of the appellant.
The respondent also observed that none of the doctors on whose reports the appellant relied to support his claim had conducted testing of the appellant’s memory and concentration to arrive at diagnosis and assessment.
The respondent submitted that the Medical Assessor noted the appellant’s concerns about memory loss and also noted the appellant was able to manage his day to day activities despite memory problems.
The respondent submitted that the absence of any specific reference to testing of memory and concentration does not constitute an inappropriate application of criteria from AMA 5 of the Guidelines. The respondent submitted that the Medical Assessor arrived at the assessment of 0% WPI in accordance with the criteria set out in the Guidelines.
The respondent submitted that the appellant incorrectly asserted that one of the matters on which the Medical Assessor based his opinion was that there was no loss of consciousness on the part of the appellant at the time of injury. The respondent submitted that the Medical Assessor did not find that but rather stated there was no documentation to indicate a loss of consciousness or the duration of the loss of consciousness.
The respondent submitted that the Medical Assessor’s observation that there was no contemporaneous documentation of loss of consciousness or any Glasgow Coma Scale scoring and no radiological evidence of a brain injury was relevant to the application of the criteria prescribed by paragraph 5.9 of the Guidelines. The respondent submitted that the Medical Assessor by specifically noting paragraph 5.9 of the Guidelines noted the relevant criteria to be used to assess traumatic brain injury. The respondent submitted that the Medical Assessor confirmed that there needed to be evidence of severe impact to the head or injury involving a high energy impact. The respondent submitted that the Medical Assessor correctly noted that paragraph 5.9 of the Guidelines required either significant medically verified abnormalities in the Glasgow Coma Score, significant medically verified duration of posttraumatic amnesia or significant intracranial pathology on CT scan or MRI scan. The respondent submitted that none of those mandatory pre-conditions were satisfied from the evidence contained with the Application to Resolve a Dispute or Reply.
The respondent submitted that the appellant’s criticism of the Medical Assessor “not embracing the findings of A/Prof Lah are misplaced” because Associate Professor Lah had considered the appellant’s responses unreliable.
The respondent submitted that the Medical Assessor having a different opinion to
Dr Bentivoglio regarding the appellant’s impairment does not constitute an error.
The respondent submitted that the Medical Assessor did not fail to consider all relevant evidence.
The respondent submitted that the Medical Assessor referred to his clinical examination which was thorough and to the neuropsychological testing Associate Professor Lah undertook. The respondent submitted that with the absence of contemporaneous confirmation of the mandatory pre-conditions stipulated in paragraph 5.9 of the Guidelines, the Medical Assessor’s assessment that the appellant had 0% WPI was not an error.
The respondent submitted that the Medical Assessor exposed clearly the pathway by which he reached his decision.
The respondent submitted that the Medical Assessor accepted Member Snell’s finding of brain injury and assessed the appellant’s impairment from injury to be nil.

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.
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires the Medical Assessor to reveal the actual path of reasoning by which the Medical Assessor arrived at his or her opinion in sufficient detail such that an Appeal Panel can ascertain whether there is any error in the Medical Assessor’s reasoning.[2] That obligation does not however require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other examiners.[3] Nor does it require the Medical Assessor to sit as a decision maker choosing between competing medical opinions put forward by the parties.[4] Further, the obligation does not require the Medical Assessor to refer in the MAC to every piece of evidence. The Medical Assessor must however consider all relevant evidence and it is an error for a Medical Assessor not to do so.[5]
[2] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot) at [55]; State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur); Broad Spectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[3] Wingfoot at [56].
[4] Kaur at [26].
[5] Tattersall v Registrar of the Workers Compensation Commission of NSW & Anor [2017] NSWSC 453 at [15]; Wentworth Community Housing Ltd v Brennan [2019] NSWSC 152 at [70]-[76].
The Appeal Panel rejects the appellant’s submission to the effect that the Medical Assessor did not have regard of all the relevant evidence. In the Appeal Panel’s view it is apparent from the MAC when read as a whole, that the Medical Assessor carefully perused all the documents that were referred to him so as to develop an accurate history relating to the appellant’s injury and to assess the appellant’s impairment from the injury. It is apparent to the Appeal Panel that the Medical Assessor did this because the history the Medical Assessor set out in the MAC refers to the relevant material from the clinical records provided to the Medical Assessor that related to the appellant’s injury. Further, it is apparent the Medical Assessor perused the material the Commission provided him because he was able to establish that there was no ambulance report within that material or any document providing medical verification that the appellant suffered amnesia from his injury or any document providing medical verification of abnormalities in the Glasgow Coma Scale score.
The Appeal Panel also rejects the appellant’s submission to the effect that the Medical Assessor did not have regard to or refer to the findings of Associate Professor Lah made from the neuropsychological testing she applied to the appellant. It is pellucid from reading the MAC that the Medical Assessor clearly had regard to Associate Professor Lah’s report and the content of it.
The Appeal Panel rejects the appellant’s submission that the findings from neuropsychological testing is the “gold standard”. It is not. It does however provide relevant data to consider, which the Medical Assessor did. Para 5.9 of the Guidelines explicitly states that “Neuropsychological test data is to be considered in the context of the overall clinical history, examination and radiological findings, and not in isolation”.
The Appeal Panel also rejects the appellant’s submission to the effect that the Medical Assessor found and consequently based his assessment on the appellant not having suffered a loss of consciousness. The Medical Assessor did not say that nor make a finding to that effect. It is not clear from the evidence, in any event, whether the appellant did or did not lose consciousness. In his statement he said that he was unsure if he did.
The Appeal Panel also rejects the appellant’s submission to the effect that the Medical Assessor made a finding inconsistent with Member Snell’s finding that the appellant had suffered an injury to his nervous system (brain injury). Clearly the Medical Assessor accepted that finding because he conducted an examination of the appellant with respect to such an injury to establish whether the appellant had any permanent impairment from it. The Medical Assessor, for reasons he explained in the MAC, found that the appellant did not have any permanent impairment from that injury.
As indicated above, it does not matter that the Medical Assessor’s opinion differed from the opinion of Dr Bentivoglio. The Medical Assessor was not required to explain why his opinion differed from Dr Bentivoglio, rather he was required to explain the reasons for his assessment. It is not an error that the Medical Assessor did not explain why his opinion differed from Dr Bentivoglio, nor is the fact that he did not do so evidence that the Medical Assessor applied incorrect criteria. What is critical is that the Medical Assessor explained the reasons for his assessment of the appellant’s impairment.
The Medical Assessor’s explanation included that there was:
(a)    no documentation revealing medically verified loss of consciousness or abnormalities in the Glasgow Coma Scale score’
(b)    no documentation revealing significant medically verified duration of posttraumatic amnesia, and
(c)    no CT or MRI scanning revealing significant intracranial pathology.
The Medical Assessor concluded, consistent with that, that the appellant had sustained a minor closed head injury, which the Appeal Panel observes accords with the finding Member Snell made.
Paragraph 5.9 of the Guidelines reads as follows:
“In assessing disturbances of mental status and integrative functioning; and emotional or behavioural disturbances; disturbances in the level of consciousness and awareness; disturbances of sleep and arousal function; and disorders of communication (AMA5 sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f; pp 309-311 and 317-327), the assessor should make ratings based on clinical assessment and the results of neuropsychometric testing, where available.
For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.
Clinical assessment must include at least one of the following:
•       significant medically verified abnormalities in the Glasgow Coma Scale score
•       significant medically verified duration of post-traumatic amnesia
•       significant intracranial pathology on CT scan or MRI.
For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.
Neuropsychological testing should be conducted by a registered clinical neuropsychologist who is a member, or is eligible for membership, of the Australian Psychological Society’s College of Clinical Neuropsychology. Neuropsychological test data is to be considered in the context of the overall clinical history, examination and radiological findings, and not in isolation.”
Given that the Medical Assessor’s assessment did not establish significantly medically verified abnormalities in the Glasgow Coma Scale score, or significantly medically verified duration of posttraumatic amnesia or significant intracranial pathology on CT scan or MRI, the Medical Assessor was correct to assess the appellant as having 0% WPI from the injury to his nervous system (brain injury). There was consequently no need for the Medical Assessor to refer to Table 13-5. There was no need for the Medical Assessor to test the appellant for memory or concentration deficit, given that the three dot points specified in paragraph 5.9 were not established. In other words, there was no point in the Medical Assessor testing for something the results of which would make no difference to his assessment of the appellant’s impairment.
Simply put because none of the three dot points of paragraph 5.9 were established there had to be a nil assessment.
The Appeal Panel observes that neither party raised any issue in their respective submissions regarding the Medical Assessor’s assessment of the appellant’s impairment relating to urinary symptoms and consequently the Appeal Panel has not dealt with that at all.
For these reasons, the Appeal Panel has determined that the MAC issued on
20 December 2022 should be confirmed.

[2023] NSWPICMP 146

17 April 2023