Tyers v Graphic Packaging International Inc

[2025] NSWPICMP 148

DETERMINATION OF APPEAL PANEL
CITATION:	Tyers v Graphic Packaging International Inc [2025] NSWPICMP 148
APPELLANT:	Neal Tyers
RESPONDENT:	Graphic Packaging International Inc
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Garvey
MEDICAL ASSESSOR:	John O’Neill
DATE OF DECISION:	7 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Whether the Medical Assessor (MA) provided sufficient reasons for his assessment; Held – Appeal Panel held that because the MA did not record in his findings from his examination the anatomical areas in which the appellant exhibited dysesthesia from the referred peripheral nerves the MA did not provide sufficient reasons to explain his assessment; appellant re-examined; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 12 June 2024 Neil Tyers,the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 May 2024.

2. 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.

3. 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.

4. 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.

5. 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

1. The appellant suffered a left hernia injury on 10 May 2015 as a consequence of the work he did in his employment with Graphic Packaging International Inc, the respondent.  He had a left inguinal hernia repair and umbilical hernia repair done on 2 December 2015. 

2. On 28 March 2017 he was lifting heavy pallets while working for the respondent when he experienced pain in his right groin which was subsequently diagnosed as a right inguinal hernia.  On 7 September 2017 he had a laparoscopic right inguinal hernia repair done.  The appellant contended that his right sided hernia was a consequence of his left hernia injury because, due to his left hernia injury, he relied on his right side to reduce the strain on his left. 

3. On 28 March 2018 he had a further laparoscopic left inguinal hernia repair, after experiencing a recurrence of the left sided inguinal hernia.

4. On 24 November 2022 the appellant’s solicitors wrote to the respondent advising them that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 22% whole person impairment (WPI) from an injury that the appellant’s solicitors described in their letter as an injury to “his left and right groin on
   10 May 2015”.  The appellant relied upon a report of pain specialist Dr Tillman Boesel dated 12 November 2022 to support his claim, which the appellant’s solicitors enclosed with their correspondence to the respondent.  In that report Dr Boesel advised that he assessed the appellant had 5% WPI for injuries to each of the left ilioinguinal and iliohypogastric nerves, 4% WPI for each of the right ilioinguinal and iliohypogastric nerves, 3% WPI for each of the left and right femoral nerves, and 1% WPI for scarring, all of which combined to 22% WPI. 

5. On 22 March 2023 the respondent’s insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it disputed he was entitled to be compensated for permanent impairment from his injury. It advised him that this was because it considered he suffered two separate injuries, one being a “left sided groin/hernia injury” on 10 May 2015 and the second separate injury being “a right sided groin/hernia injury” on 28 March 2017. It advised him that it relied on a report of surgeon Dr Phil Truskett dated 6 February 2023, who in his report advised that he assessed the degree of the appellant’s permanent impairment from his left groin hernia was 9% WPI, which is less than the threshold stipulated under s 66 of the 1987 Act for an entitlement to accrue for compensation for permanent impairment from an injury. It advised him that Dr Truskett had taken a “history of you having sustained two entirely separate injuries (one in 2015 and the other in 2017)”, and that it preferred the opinion of and assessment of Dr Truskett over the assessment of Dr Boesel. The Appeal Panel observes, at this point, that Dr Truskett did not assess the degree of the appellant’s permanent impairment from his right groin hernia.

6. After that, the appellant filed with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 4 December 2023 by which he sought the Commission determine the claim he had made for compensation for permanent impairment.  The Commission referred the matter to one of its Members, namely Mr John Turner, who conducted an arbitration on 16 February 2024 to determine the issue in dispute between the parties, specifically whether the appellant’s “right groin condition is as a consequence of the earlier left groin condition”. 

7. On 4 March 2024 the Commission issued a Certificate of Determination recording Member Turner’s determination of that dispute, which was “that the [appellant] sustained a consequential condition of the right groin hernia, as a result of the accepted left hernia injury sustained on 10 May 2015”.  Member Turner’s statement of his reasons for his determination was published by the Commission with the Certificate of Determination. 

8. The Certificate of Determination also recorded an order Member Turner made remitting the matter to the President of the Commission so that it could be referred to a Medical Assessor to assess the degree of the appellant’s permanent impairment resulting from that injury.  That order also specified the several body parts that the Medical Assessor would need to examine to conduct his assessment of the degree of the appellant’s permanent impairment from his injury.  Those body parts included “left anterior femoral cutaneous nerve and right anterior femoral cutaneous nerve”.  More will be said below about that terminology.

9. A delegate of the President duly issued a referral to the Medical Assessor on 11 March 2024, and the Medical Assessor examined the appellant on 8 May 2024 to conduct his assessment of the degree of the appellant’s permanent impairment.  As said above, he issued the MAC on 14 May 2024.

10. The Medical Assessor recorded in the MAC that the appellant’s current symptoms consisted of ongoing pain in both groins and his right hip.  The Medical Assessor recorded that the appellant is able to attend to his personal needs and does light housework but his mother assists him regularly to do heavy housework and gardening due to his pain in his groin. 

11. The Medical Assessor recorded the following findings from his examination of the appellant:

    “On examination, Mr Tyers had an antalgic gait.

    He was able to assume the seated position and rise from the seated position without difficulty, exhibiting no loss of power or pain when doing so.

    He was able to assume the seated position on the examination couch with hips flexed and knees extended. Straight leg raising was limited to 40° bilaterally because of inguinal pain. There was no wasting of any muscle group in the lower extremity and there was no disorder of skin colour, temperature or texture.

    There was no impairment of power production involving the proximal or distal muscles in the lower extremities and no abnormality of tone or coordination was noted.

    There was exquisite tenderness to light touch within the anatomical distribution of the left and right ilioinguinal nerves. There was no indication of sensory impairment or dysesthesia produced by contact with the territory of the left or right iliohypogastric nerve or of the left or right anterior femoral cutaneous nerves.

    Examination of the region of the right hip revealed no tenderness or sensory impairment.

    The deep tendon reflexes were symmetrical and normally brisk at all levels.”

12. The Medical Assessor briefly summarised the findings of the relevant radiological investigations the appellant has undergone over the years.

13. The Medical Assessor commented that the relationship between the appellant’s “assessable impairments arise because of the close anatomical distribution of the dysesthesia with the territories of the right ilioinguinal and left ilioinguinal nerves”.  The Medical Assessor said that “the absence of any dysesthesia or sensory change involved in the other peripheral nerves which indicates the likelihood of nerve regeneration since earlier assessments”.  The Medical Assessor said that “there is now no pain or dysesthesia involving the distribution of the other specified peripheral nerves”.  The earlier assessments to which the Medical Assessor was referring were those undertaken by Dr Boesel and Dr Truskett. 

14. The Medical Assessor certified that he assessed the degree of the appellant’s permanent impairment from his injury was 10% WPI.  He detailed the composition of that in table 2 within the MAC, which was as follows:

Right lower extremity	10.5.2015	SIRA Guides 4th Edition Chapter 4 Para 5.16 Table 5.1 Para 4.34 ADL Chapter 5.16 Table 5.1	Chapter 17 Peripheral Nerves Table 17-37, 16-10, 16-11, Table 17-3
Right ilioinguinal nerve (consequential)	10.5.2015	4.0%	0	4%
Right Iliohypogastric nerve (consequential)	10.5.2015	0%	0	0%
Right anterior femoral cutaneous nerve (consequential)	10.5.2015	0%	0	0%
Left lower extremity	10.5.2015
Left ilioinguinal nerve ADL	10.5.2015	4.0% 2.0%	0	6%
Left Iliohypogastric nerve	10.5.2015	0%	0	0%
Left anterior femoral cutaneous nerve	10.5.2015	0%	0	0%
Total % WPI (the Combined Table values of all sub-totals)					10.0%

1. The Medical Assessor made reference to the report of Dr Boesel dated 12 November 2020. The Medical Assessor noted that 18 months had passed since the appellant had been assessed by Dr Boesel.  He noted that he did not find any impairment of the femoral cutaneous nerve on either side.  He also said that “there is no evidence of iliohypogastric nerve impairment on either side”. The Medical Assessor remarked that “it is likely that peripheral nerve regeneration has occurred since Dr Boesel assessed him”.  The Medical Assessor also noted that Dr Boesel had “emphasised emotional and psychiatric matters” in his report and the Medical Assessor said that he had taken those matters into account.  The Medical Assessor also said the following:

   “[T]he distribution of the dysesthesia is closely in accord with the appropriate anatomical distribution of the nerves which I find to be responsible for the severe dysesthesia present. There is no evidence of dysesthesia in the distribution of the other cutaneous nerves and there is the possibility of a change in the pattern of the dysesthesia since Dr Boesel assessed him in 2022 and the contribution from non-organically determined factors may have been considerably greater at that earlier time.”

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination. This is because the Appeal Panel, for reasons it explains below, found that the MAC contained a demonstrable error, which the Appeal Panel would need to correct. The Appeal Panel considered that in order to correct that error it required further clinical data, which could only be obtained by a further examination of the appellant. The Appeal Panel appointed one of its members, namely Medical Assessor John Garvey, to conduct that examination.  He did so on 10 February 2025.  His report to the Appeal Panel following his examination is set out below under Findings and Reasons.

EVIDENCE

1. 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. 

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. Paraphrasing the appellant’s submissions, to provide a summary of them, they are that the Medical Assessor’s findings from his examination are contrary to the evidence. That evidence includes the findings of Dr Boesel, Dr Sushama Desphande (whom the Appeal Panel notes is a pain specialist that at one stage treated the appellant), an ultrasound of his left ilioinguinal region done on 26 February 2015, and his statement signed on 24 April 2023.  The appellant submitted this evidence revealed damage to the nerves in his ilioinguinal area. 

3. The appellant also referred to the report of general and gastrointestinal surgeon Dr Anthony Greenberg dated 12 October 2023 and submitted that Dr Greenberg’s findings revealed he experienced symptoms along the bilateral ilioinguinal, iliohypogastric and superior femoral cutaneous nerves, rather than solely the bilateral ilioinguinal distribution that the Medical Assessor assessed.

4. The appellant submitted that the Medical Assessor did not engage with the opinion of
   Dr Greenberg when reasoning that the bilateral iliohypogastric nerves and bilateral cutaneous nerves had resolved since Dr Boesel’s assessment or that they may due to non-organically determined matters.  The appellant submitted that it was an error on the part of the Medical Assessor. 

5. The appellant submitted that the Medical Assessor denied him procedural fairness by relying on non-organically determined matters as being a potential cause of his symptoms without providing him with an opportunity to respond to that issue. 

6. The appellant further submitted that the Medical Assessor’s reasons do not contain sufficient reasons to explain his conclusions.

7. The appellant noted that his last surgery was on 29 March 2018, the scar from which
   Dr Boesel observed in November 2022 to be splayed and have purple discolouration. The appellant questioned how it was that the Medical Assessor on his examination on
   8 May 2024 found that his scar was not visible.

8. The appellant submitted that the Medical Assessor did not engage sufficiently with the evidence to explain his conclusions and that his reasons “appear to be premised on a distinction between A/Prof’s assessment and the MA’s assessment alone”.  The reference to A/Prof is an obvious reference to Dr Boesel.

9. Paraphrasing the respondent’s submissions, also to provide a summary of them, they are that the Medical Assessor highlighted in the MAC his finding of the absence of the appellant having any dysesthesia or sensory change involving the peripheral nerves other than the left and right ilioinguinal nerves. The respondent highlighted that the Medical Assessor considered there was a likelihood of nerve regeneration of those nerves since the appellant’s earlier assessments which had occurred 18 months and 8 months before the Medical Assessor undertook his assessment.  The respondent submitted that, given the considerable time that has elapsed since the earlier assessments, the Medical Assessor did not make any error with respect to his assessment of the appellant’s impairment.

10. The respondent submitted that the Medical Assessor’s reference to the possibility of non-organically determined matters explaining some of the appellant’s symptoms was simply a reference to explain the potential differences between his assessment and the assessments of others, and it was not a point that influenced his assessment of the appellant’s impairment.

11. The respondent submitted that the Medical Assessor’s assessment of 0% WPI for scarring was open based on his examination of the appellant.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. It is important at this point for the Appeal Panel to note that the reference in the materials that were before the Medical Assessor, and that are before the Appeal Panel, to the anterior femoral cutaneous nerve is problematical because such a nerve does not exist.  The Appeal Panel notes that the three nerves most likely to be affected by an ilioinguinal nerve repair are the ilioinguinal, iliohypogastric and the femoral branch of the genitofemoral nerve. The reference in the referral to the Medical Assessor to the left and right anterior femoral cutaneous nerves is, in the Appeal Panel’s view, to be read as the femoral branch of the left and right genitofemoral nerves.

4. The clinical manifestation of neuropathies of the ilioinguinal, iliohypogastric and the femoral branch of the genitofemoral nerves overlap significantly, and it is consequently difficult to assess the neuropathy of each individual nerve. In the Appeal Panel’s view, the Medical Assessor did not specify in his findings he recorded in the MAC from his examination of the appellant the specific anatomical areas within which he found the appellant had dysesthesia.  What he did was to state whether he found dysesthesia within the distribution of the nerves, rather than describing, by reference to a specific anatomical region, where the appellant exhibited that.  Because of that, and bearing in mind too, as the Appeal Panel has said, the inherent difficulty in assessing the neuropathies of individual nerves, and bearing in mind too that the anterior femoral cutaneous nerve does not exist, the Appeal Panel agrees with the appellant’s submissions that the Medical Assessor did not adequately explain the conclusions he reached that the appellant exhibited dysesthesia only in the anatomical distribution of the left and right ilioinguinal, and not in the distribution of the left and right iliohypogastric nerve and the femoral branch of the left and right branch of the genitofemoral nerve.  He did not, in other words, adequately expose his reasons, which is an error on his part such that the MAC contains a demonstrable error.

5. Since the MAC contains a demonstrable error, it is the task of the Appeal Panel to correct that error. As noted earlier the Appeal Panel considered it required further clinical data to attend to that task, and to this end required the appellant to be examined by Medical Assessor Garvey.  Medical Assessor Garvey’s report to the Appeal Panel is as follows:

   “PERSONAL INJURY COMMISSION

MEDICAL ASSESSMENT CERTIFICATE

ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Matter Number:	M1-W9157/23
Applicant worker:	Neal Tyers
Date of MAC:	24 February 2025
Medical Assessor:	John Garvey
Specialty:	General Surgeon

1.   DETAILS OF MATTERS REFERRED FOR ASSESSMENT

The following matters have been referred for assessment (s 319 of the 1998 Act):

·    Date of injury: 10 May 2015 and March 8, 2017

·    Body parts/systems referred: Left inguinal hernia, right inguinal hernia

·    Method of assessment: Whole Person Impairment

2.   EVIDENCE

Documentary Evidence

The following documents were referred by the Commission for this assessment:

Mellick, Ross Neurologist MAC of May 14, 2024: The Claimant was injured on May 10, 2015 in the course of his work and a left inguinal hernia was diagnosed. Immediately after surgery he became aware of pain in the left groin which was worse than before the surgery. In 2017 he experienced pain in the right groin requiring hernia surgery in December 2017 which was followed by right-sided groin pain. A recurrent left inguinal hernia was operated upon in 2021. Examination: Straight leg raising was limited to 40° bilaterally because of inguinal pain. No power loss of the lower extremities. Exquisite tenderness to light touch within the anatomical distribution of the left and right ilio-inguinal nerves. There was no sensory impairment or dysaesthesia in the distribution of the left or right iliohypogastric nerves or anterior femoral cutaneous nerves. Diagnosis: Dysaesthesia of the right ilio-inguinal and left ilio-inguinal nerves (but no other specified peripheral nerves) meriting 4% WPI for the right ilio-inguinal nerve and 4% WPI for the left ilio-inguinal nerve combined with 2% WPI for ADLs, yielding a final combined Whole Person Impairment assessment of 10% WPI

Comment: 4% WPI for each ilio-inguinal nerve seems reasonable, but these 2 injuries cannot be combined because they are injuries of different body parts on different dates.

Tyers, Neal injured workers statement April 28, 2017: After the left inguinal hernia operation in December 2015, he did not make a full recovery and has continued to suffer from pain in the left groin. There are 2 hernias on the right groin that need to be operated as well. He operates a large printing press. He commenced experiencing pain in his right groin area on March 7, 2017. He continued working until March 27, 2017 when he developed an unbearable pain in his right groin

April 24, 2023: He was going through around 40 pallets today at a fast pace. He was placing weight on the right side of his body to reduce strain on the left and an ultrasound on 4 April 2017 and a CT scan on 14 June 2017 confirmed the presence of an indirect right inguinal hernia. Laparoscopic right inguinal hernia repair was performed on September 7, 2017 and laparoscopic repair of a recurrent left inguinal hernia on March 29, 2018. Spinal cord stimulator was trialled in March 2020 without benefit. He was terminated from employment on 15 May 2018 and has been unable to return to work since.

September 13, 2023: Left inguinal hernia repair was performed on December 2, 2015. He placed a lot of weight on the right side when lifting pallets or pushing the pallet jack. He started to walk with a significant limp and started put as much weight on the right side as possible and an ultrasound revealed a right inguinal hernia

Additional Information

The following information was obtained in accordance with Section 324(1) of the 1998 Act:

Nil

·    List any imaging studies provided by the worker which were not listed in the documentation provided: Nil

3.   WORKER’S DETAILS INCLUDING

·    Present treatment: Duloxetine 30 mg daily, Qtern 5/10 antidiabetic tablet daily, Lyrica 300 mg 3 times a day, Perindopril 5 mg daily

·    Present symptoms: Constant Stabbing pain in the groin (left >right), pins and needles and numbness in the legs, hot and burning sensation, sweating a lot. He suffers from urinary frequency every 30 minutes and a sensation of bladder fullness and he cannot sleep at night

·    Details of any previous or subsequent accidents, injuries or condition: Bad back which resolved, fractured right ankle, 2 broken arms when he lived in England

·    General health: ‘Not good’ 

·    Family history:   Nil relevant

·    Work history including previous work history if relevant: Born in the UK and came to Australia as a 10-year-old child. Completed year 10 and then took an apprenticeship in printing and qualified as a Printer. Worked with John Sands Pty Ltd for 9 years before being made redundant. Commenced work with Graphic Packaging Pty Ltd in Regent’s Park in February 2011 as a Printing Assistant on the afternoon shift between 2 PM and 10 PM Monday to Friday performing heavy lifting. Now on disability Support Pension since February 2024

·    Social activities:   Divorced man living in a rented townhouse with one adult son age 36 who works in a plastic factory, social drinker of alcohol and does not smoke

·    ADLs:  

-     Dressing:   Yes

-     Bathing and self-hygiene:   Yes

-     Toileting:  Yes

-     Mobility/transportation: Can walk for 10 minutes. Cannot drive a motor vehicle because of pain in his left groin from sitting too long

-     Feeding and preparing meals:   His mother makes his meals and sends over frozen food once a week for his freezer

-     Domestic duties including washing and hanging clothes, vacuuming, making/changing beds, mopping floor, cleaning bathroom:   His mother comes over and does all those chores

-     Grocery shopping:   Mum does that

-     Stair climbing:   No

-     Gardening/home maintenance:   A gardener is paid to come and do that

-     Sport:   Nil, but previously played soccer

-     Hobbies:   Playing rock guitar and collecting rock ‘n’ roll memorabilia. Supporting Lester City Football Club

4.   HISTORY RELATING TO THE INJURY

·    I asked the Claimant to tell me of the incident in his own words and I wrote this down as closely verbatim as was possible and reproduce it here: The Claimant said that in 2015 he experienced a lump in his left groin. He notified his manager and he was sent to the company Doctor and ultrasound scans were performed. He was then referred to a Specialist at the Nepean Private Hospital and had an operation in May 2015. He was kept in hospital overnight and discharged the following day but following day the pain was so bad that he felt that he had been stabbed in the left groin. An ultrasound on 12 December 2015 found nerve damage. He went back to his treating Specialist and he was told by the receptionist that the Surgeon said that it was all in his head and that this had never happened before with any of the Specialists patient’s and he was not allowed to go and see the Specialist Doctor again.

·    He was referred to the Nepean Pain Centre after a couple of weeks and prescribed Lyrica tablets. He returned to work after 6 weeks on light duties but in effect he was on full duties for the next 12 months. In July 2016 he developed Type 2 diabetes mellitus. In 2017 he felt a lump in his right groin and he developed a hernia on the right side from heavy lifting of pallets and he had an X-ray and an ultrasound which showed a right inguinal hernia. He had a right inguinal hernia repair laparoscopically performed by a different Specialist and he was on light duties after that operation. A third hernia developed in 2019 being a recurrent left inguinal hernia and he had a further laparoscopic hernia operation at the Nepean Private Hospital by laparoscopic repair. He was on light duties for a month but then he was told to stay at home and he was put on workers compensation. He received a New Start allowance which was then upgraded to disability support pension.

·    With respect to groin pain, he was treated with trial spinal cord stimulator electrodes by the Pain Specialist but this made his groin pain worse and so the pain Specialist took his electrodes out on the spot in his office. He describes the pain in his left groin as a constant stabbing pain whereby he cannot bend, walk or lift. After the hernia repair on the right, he returned to work 4 hours a day 3 days a week but was still getting pain which he described as 6/10. When he developed the 3^rd hernia (recurrent left inguinal hernia) the groin pain was worse and he was treated with cortisone injections ×2 which made his pain worse.

5.   FINDINGS ON PHYSICAL EXAMINATION

Inspection: The Claimant walked with an antalgic limp on the left. There was no cachexia, pallor of anaemia or jaundice.  There was no clubbing of the fingers or liver palms.  There were no spider naevi or stigmata of liver disease on the chest.  The abdomen was symmetrical and tumid in shape.  There were no abdominal masses visible or discolouration. There was a 23 x 12 cm supra umbilical divarication of the recti muscles There was a 4 cm infra umbilical laparoscopic port site incision which was well healed and no sinuses or fistulas and the umbilicus was otherwise normal. The left paraligamentous incision was imperceptible

Palpation: There were no enlarged lymph glands palpable in the groin regions.  The external potential hernia orifices were closed, the femoral pulses were palpable and the external genitalia were normal.  Light palpation was hypersensitive in the left lower quadrant of his abdomen.  Moderate palpation of the abdomen was tender in the left lower quadrant of his abdomen.  There was muscular guarding but no rebound tenderness or crossed rebound tenderness.  The liver was not palpable, nor was the spleen and the kidneys were not ballotable.  There were no abdominal masses palpable.

Testing his conjoint tendon by resisted sit-up was moderately painful on the right (6/10) but extremely painful on the left (10/10). His Carnett’s test for abdominal wall pain was moderately tender on the right (6/10) but exquisitely tender on the left (10/10). Adductor palpation and resisted adduction were painful on the left. His Adductor squeeze test in the neutral, 45° and 90° positions of hip flexion was tender on the left. There was severe hyperaesthesia (dysaesthesia) to punctate sensation in the sensory distribution of the left iliohypogastric (skin in the suprapubic and adjacent lower abdominal wall region), ilio-inguinal (skin over the root of the penis and upper part of the scrotum) and genitofemoral nerves (skin of the anterior scrotum and adjacent medial thigh and [femoral branch] area of skin over the upper anterior thigh in the femoral triangle region) on the left but moderate hyperaesthesia in the iliohypogastric, ilio-inguinal and genitofemoral nerves on the right. There was mild hypersensitivity in the distribution of the left obturator nerve proximally on the left (5/10) and 2/10 on the right. Testing the distal obturator nerve (L3) on each side was normal. Testing the lateral femoral cutaneous nerve on each side was normal to punctate sensation.

Flexion of his right lower extremity was limited to 90° on the right and 70° on the left. His Faber test (bent knee fallout) was half-normal on the right and one quarter normal on the left. His right thigh circumference measured 55 cm on the right and 56 cm on the left. His right lower extremity measured 89.5 cm in length on the right and 88 cm on the left. His weight was 114 kg and height 178.5 cm (BMI 35.8).

Auscultation: On auscultation the bowel sounds were normal and there was no aortic bruit and no gastric splash.

The weight was 114 kg and height 178.5 cm (BMI 37.8) Waist circumference was 122 cm. I showed the Worker the Bristol Stool Chart and he chose #2 (‘Sausage-shaped but lumpy’) tendency to constipation

6.   DETAILS AND DATES OF SPECIAL INVESTIGATIONS

June 25, 2015 left groin ultrasound Penrith Imaging

Large left inguinal hernia containing large bowel non-reducible through neck of 1.7 cm

October 16, 2015 Abdominal Ultrasound High St Medical Imaging Penrith

Para umbilical hernia incompletely reducible through neck of 11 mm containing mesenteric fat

December 2, 2015 operation report Nepean Private Hospital

Open mesh repair of direct left inguinal hernia, sublay mesh repair of umbilical and paraumbilical hernias

Direct left inguinal sac ligated and returned to preperitoneal cavity mesh repair with Bard 3D mesh Lichtenstein technique

Umbilical: Infraumbilical incision. Moderate umbilical and small Paraumbilical hernia joined to make one defect. Sublay repair with small Ventralex mesh

December 12, 2015 ultrasound left inguinal region High Street Medical Imaging Penrith (for ongoing pain, particularly and lateral thigh region)

Scarring in proximity to iliac origin of inguinal ligament in the region of the transiting lateral femoral cutaneous nerve with marked neurogenic reaction consistent with lateral femoral cutaneous nerve impingement syndrome

December 29, 2016 ultrasound left groin (page 86)

Surgical mesh in situ, no recurrent hernia. No femoral hernia

April 4, 2017 ultrasound right groin (page 241)

Reducible indirect right inguinal hernia containing intra-abdominal fat through defect measuring 30 mm and further direct right inguinal hernia through defect measuring 29 mm

Conclusion: Indirect and direct fat-containing reducible right inguinal hernias

April 28, 2017 MRI right groin (page 238)

Direct right inguinal hernia through neck of 22 mm containing mesenteric fat with pain likely secondary to the direct inguinal hernia. No athletic pubalgia

September 7, 2017 operation report laparoscopic right inguinal hernia repair with mesh Nepean Private Hospital

Large direct and small indirect hernias. Repair with large 3D Bard max mesh secured with Absorbataks and Tisseel glue

November 24, 2017 ultrasound left groin (page 83) Marked tenderness over the deep inguinal ring of the left inguinal canal suggesting inguinal nerve impingement. No evidence of recurrent/residual inguinal hernia

December 6, 2017 MRI left groin (page 236)

Dilatation of left deep inguinal ring. Lipomatous tissue extending medially in a tongue like fashion 15 mm wide not communicating with the inguinal canal

Right inguinal herniorrhaphy mesh. Right superficial inguinal ring measuring 23 mm. Pubic symphysis intact

Conclusion: Transient protrusion of mesenteric fat through deep inguinal ring suggesting incompletely formed indirect left inguinal hernia. Tubular lipomatous structure abutting the medial and superior margin of the left inguinal canal compressing inguinal contents

March 29, 2018 operation report laparoscopic repair of recurrent left inguinal hernia with mesh

Large direct left inguinal hernia repaired with Bard 3DMax max-large secured with Absorbataks and Tisseel glue

May 18, 2019 MRI scan left groin (page 135)

Pubic symphysis articular and subarticular irregularity suggestive of osteitis pubis a consequence of abnormal loading at the pubic symphysis

October 13, 2020 Ultrasound left groin (page 133)

No recurrent or residual hernia

February 17, 2021 ultrasound left groin (page 108)

Surgical mesh in situ with no residual or recurrent hernia

March 30, 2023 Ultrasound left hip (page 184)

mild trochanteric bursitis and mild gluteus minimus and medius tendinopathy

7.   SUMMARY

·    summary of injuries and diagnoses:

Recurrent left inguinal hernia and mesh inguinodynia causing severe dysaesthesia in the left iliohypogastric, ilio-inguinal and genitofemoral nerve distribution

Laparoscopic repair of right inguinal hernia-mesh inguinodynia moderate dysaesthesia in the distribution of the right iliohypogastric, ilio-inguinal and genitofemoral nerves

·    consistency of presentation:

The Claimants presentation is consistent with the history and examination obtained

8.   EVALUATION OF PERMANENT IMPAIRMENT

My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:

a.   Is the worker claiming for any body part/system outside your field of expertise?  If so, please indicate the body par/system: No

b.   Have all body parts/systems stabilised/reached maximum medical improvement? Yes

c.   If not, please list those injuries not yet stable/at maximum medical improvement: Not applicable

d.   If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable

e.   Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No

f.    If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Not applicable

9.   THE FACTS ON WHICH THE ASSESSMENT IS BASED

The facts on which I have based my assessment of whole person impairment are:

History, physical examination, diagnostic imaging and Specialist reports

10.REASONS FOR ASSESSMENT

a.   My opinion and assessment of whole person impairment:

The 2 hernia injuries have to be assessed separately because they involve different body parts for injuries sustained 2 years apart.

15% WPI is assessed for left inguinal hernia severe post-operative dysaesthesia for injury sustained on May 10, 2015

9% WPI is assessed for right inguinal hernia moderately severe post-operative dysaesthesia for injury sustained on March 7, 2017

In making that assessment I have taken account of the following matters: The Claimant has severe dysaesthesia in the distribution of the left iliohypogastric, ilio-inguinal and genitofemoral nerves. He has moderately severe dysaesthesia in the distribution of the right iliohypogastric, ilio-inguinal and genitofemoral nerves.

b.   An explanation of my calculations (if applicable) using Table 5.1 on page 33 of the SIRA guides:

There is no impairment assessable for either inguinal hernia because both hernias (including a recurrent left inguinal hernia) have been repaired and there is no recurrence.

For injuries sustained on May 10, 2015: The Claimant receives 5% each for left iliohypogastric, ilio-inguinal and genitofemoral nerves for severe neurogenic pain in sensory alteration in the anatomical distribution of these 3 nerves.

For injury sustained on March 7, 2017 The Claimant receives 3% each for right iliohypogastric, ilio-inguinal and genitofemoral nerves for moderate neurogenic pain in sensory alteration in the anatomical distribution of those 3 nerves

No rateable assessment for left obturator nerve according to the AMA5 guidelines (Table 17-37, page 552 (. There was no alteration in sensation to punctate testing in the lateral femoral cutaneous nerves on either side, so there is no rateable assessment for lateral femoral cutaneous nerve on either side.

There is no assessment for scarring because the left paraligamentous incision is barely perceptible and the infra umbilical laparoscopic port site incision is an uncomplicated scar from the standard surgical procedure which does not rate an impairment (Clause 14.6, page 73 SIRA guides)

c.   My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

Surgeon Dr Anthony Greenberg in his report of October 12, 2023 obtained a history of left inguinal hernia injury while working for Graphic Packaging International Australia as a printing offsider performing heavy manual labour and lifting. The current symptoms comprise stabbing pain in both groins (left > right), constant pain daily which never resolves, burning and pins and needles-like feeling, skin being sensitive to touch and difficulty sleeping. Since his diagnosis he has been treated for diabetes with Diaformin. Examination BMI 35.5 (abdominal adiposity) morbidly obese (previous BMI 26.2). Allodynia over both right and left suprapubic regions and any pressure seem to cause him significant distress. No sensory disturbance on the medial aspect of the right or left thighs and both testes appeared normal. Diagnosis: Bilateral nerve entrapment syndrome which has not resolved and likely to be permanent

November 6, 2023 supplementary report: Following the left inguinal hernia repair the requirements of his work-related duties started to rely on the right side and he was subsequently diagnosed with a right inguinal hernia

February 5, 2024 supplementary report: the need to rely on his right side was more likely than not a substantial contributing factor to him subsequently developing a right inguinal hernia

Truskett, Phil Surgeon medical reports: August 28, 2000 the Claimant was diagnosed with a left inguinal hernia and 2 umbilical hernias and underwent left inguinal hernia repair with mesh and umbilical hernia repair after which he developed pain in the left groin and was off work for approximately 4 months and returned to his treating Surgeon limping significantly. In May 2017 he experienced severe pain in his right groin and was diagnosed with a right inguinal hernia and repaired at Nepean Private Hospital. 90% of the time pain in the left groin is present (3, 7/10) and the Claimant feels that there is a lump in his right groin. He takes Tramal every couple of days for pain and Amitriptyline 10 mg twice a day and Lyrica 75 mg twice a day on prescription from his Pain Specialist. Examination: Normal gait, BMI 29.9. No sensory change in the left inguinal region but marked tenderness over the pubic tubercle in line of adductor longus tendon and similar findings on the right. Diagnosis: The focus of pain appears to be at the pubic tubercle and Adductor longus tendon insertion

July 13, 2020: In March 2017 the Worker was lifting pallets when he experienced pain in his right groin and was diagnosed with a right inguinal hernia and underwent laparoscopic repair in September 2017. In September 2018 he developed a recurrent left inguinal hernia and underwent laparoscopic repair. In March 2020 he underwent trial implantation of nerve stimulator. The Claimant said that a lump is present all the time on the left radiating down from the entire left inguinal region to the anterior aspect of his left leg (non-radicular nerve distribution), episodic and burning in nature. Intermittent pain in the right groin has been present since his right groin surgery. There are also bladder problems of urinary frequency. Examination: Walked with a limp of his left leg. BMI 34.3. No evidence of recurrent hernias but extreme discomfort over the left groin beyond the distribution of the left ilio-inguinal nerve. The right groin was normal. Discussion: It is unusual for the ilio-inguinal nerve to be in jeopardy with the laparoscopic hernia approach but the examination seems quite worse and quite different to what was obtained previously (August 28, 2017). Involvement in a potential class action was considered a ‘red flag’.

June 15, 2021: Limps with his left leg. Medial left groin pain (8/10) getting worse with walking for more than 10 minutes becoming stabbing. Pins and needles down the anterior aspect of his left leg to the knee about twice per month (9/10). Urinary frequency. Examination: Limp involving left leg BMI 32.5. 8 mm. Scar in left groin. Exquisite tenderness over left groin to light touch but sensation was reduced. No evidence of dysaesthesia. No recurrent hernia. Adductor tendon normal. Reduced range of hip flexion, abduction and internal rotation. Diagnosis: persistent left groin pain since the original open left inguinal hernia repair. Assessment: 1% WPI for loss of sensation in ilio-inguinal nerve distribution combined with 8% WPI for reduced range of left hip flexion, internal rotation, external rotation and adduction, 0% WPI for scarring yielding a final combined Whole Person Impairment assessment of 9% WPI

February 6, 2023: The laparoscopic surgery for recurrent left inguinal hernia did not improve his left groin pain. A temporary nerve stimulator in March 2020 did not provide any improvement. Urinary frequency every 30 minutes was again noted. Examination sensation was more in keeping with myofascial pain in the left groin. Diagnosis: Myofascial syndrome drawing an analogy with his limp and left hip impairment. The Claimant does not demonstrate dysaesthesia

March 9, 2023: 9% WPI confirmed for left groin and 0% WPI assessed for right groin

December 28, 2023: Dr Truskett considered that the need for the Claimant to rely on the right side as a substantial contributing factor to developing a right inguinal hernia is a ‘novel hypothesis’ and he is unable to provide a physiological mechanism whereby abdominal pressure could be redistributed in that way

Boesel, Tillman Pain Specialist medical report November 12, 2022: left groin pain was evident during the immediate surgical recovery. And has persisted and increased after the surgery for recurrent left inguinal hernia and the Claimant developed a significant pain in the right groin after a laparoscopic repair. The reports of Professor Nabil Ibrahim and the diagnostic imaging by Dr John Read are not tendered in the file. Pain is 9/10 on the left and 7/10 on the right. Examination: Antalgic gait with a stoop. Gross allodynia to punctate stimulation and hypoasthesia on the left and right ilio-inguinal and iliohypogastric distribution (left >right). A lesser degree of dysaesthesia in the anterior thigh in the distribution of the anterior cutaneous branches of the femoral nerve. Opinion: neuropathic pain in the distribution bilateral ilio-inguinal, ileo-hypogastric and superior femoral cutaneous nerves. Assessment 5% WPI for left ilio-inguinal and left iliohypgastric, 4% WPI for right ilio-inguinal and right iliohypogastric nerve combined with 3% WPI for anterior femoral cutaneous nerve dysaesthesia on each side combined with 1% WPI for scarring of the infra umbilical port site yielding a final combined Whole Person Impairment assessment of 22% WPI

June 2, 2023: diagnosis severe Post herniorrhaphy groin pain syndrome on the left. The nonavailability of light duties is a possible causal factor of the onset of his right sided hernia but an abnormal gait is not implicated. A likely explanation was that the Claimant was favouring the right side while he was lifting heavy pallets and the pattern of motion caused by pain disorder on the left caused increased load and asymmetric biomechanical loading of the right lower limb and inguinal region making the Claimant more likely to suffer a traumatic hernia on the right and this hypothesis is contestable

11.DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY

Nil

12.ANSWERS TO SPECIFIC QUESTIONS

The specific questions raised by the Medical Appeal Panel relate to the assessment of the 3 border nerves (iliohypogastric, ilio-inguinal and genitofemoral) that have been affected by mesh placement by laparoscopic and open hernia repair with mesh. These 3 nerves have distinct primary territories as mentioned above, but they are in close anatomical relationships and variable communications can result in overlapping sensory distribution which can be highly variable between individuals. The anterior femoral cutaneous nerve (and the superior femoral cutaneous nerves referred to by the Pain Specialist) thus referred to the the Medical Assessor do not exist and their distribution corresponds to the femoral branch of the genitofemoral nerve on each side which has been assessed at 5% WPI on the left and 3% WPI on the right.

There is no assessment above 0% WPI for scarring

Signed    

MEDICAL ASSESSOR”

1. The Appeal Panel considers that Medical Assessor Garvey obtained a relevant clinical history relating to the appellant’s injury, and the Appeal Panel adopts that history.  The Appeal Panel also considers that Medical Assessor Garvey conducted a thorough examination of the appellant and the Appeal Panel also adopts the Medical Assessor’s finding from his examination of the appellant. The Appeal Panel also considers the ratings the Medical Assessor made of the appellant’s impairment with respect to the affected peripheral nerves, namely the left and right ilioinguinal, the left and right iliohypogastric and the femoral branch of the left and right genitofemoral nerves, are correct based upon Medical Assessor Garvey’s findings. The Appeal Panel therefore also adopts those ratings.[1]

   [1] Coca Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].

2. Noting that Member Turner found that the appellant sustained a consequential condition of his groin as a result of the left hernia injury, the impairments that the appellant has from both his left and right ilioinguinal, iliohypogastric and genitofemoral nerves are to be assessed together, and not as two separate injuries, and insofar as Medical Assessor Garvey opined that the impairments of the right side are to be assessed separately from the impairments of the left side, the Appeal Panel does not adopt that aspect of his report.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 14 May 2024 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W9157/23
Applicant:	Neal Tyers
Respondent:	Graphic Packaging International Inc

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 Mellick 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)
Right lower extremity	10.5.2015	SIRA Guides 4th Edition Chapter 4 Para 5.16 Table 5.1 Chapter 5.16 Table 5.1	Chapter 17 Peripheral Nerves Table 17-37, 16-10, 16-11
Right ilioinguinal nerve (consequential)	10.5.2015	Section 5.16, Table 5.1, page 33	Chapter 17, page 552, Table 17-37	3	-	3
Right Iliohypogastric nerve (consequential)	10.5.2015	Section 5.16, Table 5.1, page 33	Chapter 17, page 552, Table 17-37	3	-	3
Right genitofemoral nerve (consequential, and wrongly termed in referral as anterior femoral cutaneous nerve)	10.5.2015	Section 5.16, Table 5.1, page 33	Chapter 17, page 552, Table 17-37	3	-	3
Left lower extremity	10.5.2015
Left ilioinguinal Nerve	10.5.2015	Section 5.16, Table 5.1, page 33	Chapter 17, page 552, Table 17-37	5	-	5
Left Iliohypogastric nerve	10.5.2015	Section 5.16, Table 5.1, page 33	Chapter 17, page 552, Table 17-37	5	-	5
Left genitofemoral nerve (consequential, and wrongly termed in referral as anterior femoral cutaneous nerve)	10.5.2015	Section 5.16, Table 5.1, page 33	Chapter 17, page 552, Table 17-37	5	-	5
Total % WPI (the Combined Table values of all sub-totals)						22%