Tyres 4U Pty Ltd ATF the TWA Trust v Gozmierska

[2024] NSWPICMP 458

DETERMINATION OF APPEAL PANEL
CITATION:	Tyres 4U Pty Ltd ATF The TWA Trust v Gozmierska [2024] NSWPICMP 458
APPELLANT:	Tyres 4U Pty Limited ATF the TWA Trust
RESPONDENT:	Malgozarta Gozmierska
APPEAL PANEL
MEMBER:	Jacqueline Snell
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	24 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment; the appellant submitted that the Medical Assessor (MA) erred in providing assessment contrary to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); failed to provide any or any sufficient reasoning to explain divergence between his assessment and that provided by the independent medical examiners; Held – MA erred in providing assessment of whole person impairment with reference to a combination bilaterally of range of motion and sensory involvement contrary to the Guidelines; finding on re-examination of a full range of movement in both wrists and a marked disparity of bilateral sensory involvement to that reported by the original MA; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 1 May 2024 Tyres 4U Pty Limited ATF The TWA Trust (Tyres 4U) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Brian Stephenson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 April 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. Malgorzata Gozmierska (Ms Gozmierska) made a claim for permanent impairment compensation resulting from injuries sustained to her left upper extremity (hand/wrist) and right upper extremity (hand/wrist) during the course of her employment with Tyres 4U with deemed date of injury of 1 May 2020, which was disputed. An Application to Resolve a Dispute was lodged with the Personal Injury Commission (Commission) on 9 January 2024 and a Reply was lodged with the Commission on 30 January 2024.

2. When Ms Gozmierska’s claim came before the Commission for preliminary conference on 12 February 2024, Tyres 4U withdrew the dispute regarding “injury” sustained by Ms Gozmierska to her left upper extremity (hand/wrist) and right upper extremity (hand/wrist) and the remaining dispute arising as to the permanent impairment sustained by Ms Gozmierska resulting from injury sustained to her left upper extremity(hand/wrist) and right upper extremity (hand/wrist) was remitted to the President for referral to a Medical Assessor.

3. The Medical Assessor examined Ms Gozmierska on 13 March 2024 and the MAC in which the Medical Assessor assessed Mr Gozmierska as having sustained 31% whole person impairment resulting from injury to her left upper extremity (hand/wrist) and right upper extremity (hand/wrist) issued on 3 April 2024.

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 Ms Gozmierska should undergo a further medical examination because:

   (a)    the Medical Assessor provided diagnosis of bilateral carpal tunnel syndrome and assessment of whole person impairment with reference to a combination bilaterally of range of motion and sensory involvement, which the Appeal Panel considers is contrary to the Guidelines, and

(b)    the Medical Assessor’s assessment of sensory involvement suggests Ms Gozmierska is suffering a significant bilateral carpal tunnel problem, which does not accord with minimal comment by the Medical Assessor regarding Ms Gozmierska’s presenting symptoms and with the neurological findings and recommendation of Dr Daud, neurologist, who reported on 23 May 2023 that when last reviewed on 14 February 2023, Ms Gozmierska had normal sensation and strength in her right hand, negative provocation testing, and in essence dismissed any symptomology on the left side.

EVIDENCE

Documentary 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.

Further medical examination

1. Medical Assessor Pillemer of the Appeal Panel conducted an examination Ms Gozmierska on 24 June 2024 and reported to the Appeal Panel.

2. Medical Assessor Pillemer relevantly reported:

   “The workers medical history, where it differs from previous records.

   I read Ms Gozmierska the history that she gave to Dr J Brian Stephenson (MA) on 13 March 2024, and she was in agreement with this.

   I note that under the heading ‘Present symptoms’ it was noted that ‘Presently complains of numbness in the median nerve distribution ie 3½ fingers have the thumb, index, middle and radial half of ring finger. The pain is also felt at the volar aspect of both wrists. She has learned to live with it.’ The medical assessor notes that this distribution and numbness is in the median nerve distribution.

   Additional history since the original MAC was performed.

   Ms Gozmierska’s history was gone into in more detail today, and as noted symptoms of pins and needles and numbness in the fingers of both hands started in approximately 2020 and she has had ongoing problems since then. The right side worries her more than the left, and on direct questioning she will wake on average ‘every second night’ because of numbness and pins and needles in one or other hand, and she will shake her hands or ‘lower them down’ to allow the symptoms to settle down, and then go back to sleep again. Symptoms on the left side only wake her once or twice a week. Ms Gozmierska is also aware of a feeling of pins and needles and numbness in her right hand in the morning on waking, and the fingers feel swollen, but after a little while of opening and closing the digits of her right hand, these symptoms settle down.

   On direct questioning she does not get much in the way of paraesthesias during the day but occasionally if she uses the mouse for any length of time on the right side, she will feel the paraesthesias. Again, on direct questioning, she used to drop things on the right side, but this has improved but she has to be careful with lifting on the right side. In essence, Ms Gozmierska symptoms suggest a fairly mild degree of carpal tunnel syndrome.

   As far as the nature and conditions of her work are concerned, she worked for Tyres 4 U for 10 years, initially on a part time basis, and from 2015 to 2022 on a full-time basis. Her work involved computers and typing, and she also did the HR role as they were short-staffed, which involved lifting and carrying files and often taking files home.

   I note that Ms Gozmierska stopped working in July 2022 when there was a restructuring and the office closed and moved to Queensland. On direct questioning she was doing her full-time normal duties at that stage and the reason that she has not gone back to any gainful employment since then is on the basis of her psychological problems. At one stage she was diagnosed with post-traumatic stress disorder, but it seems the diagnosis is now more one of depression and anxiety, and she has seen a psychiatrist and psychologist, and is under treatment for her psychological condition.

   Findings on clinical examination

   Ms Gozmierska was a healthy-looking adult female in no obvious discomfort, who has a full range of cervical movement as well as a full range of movement of both shoulders, elbows, wrists and all the digits of both hands. The range of motion in both wrists is recorded:

   Left wrist

Palmar Flexion	60°
Dorsiflexion	60°
Radial deviation	20°
Ulnar deviation	30°

Right wrist

Palmar Flexion	60°
Dorsiflexion	60°
Radial deviation	20°
Ulnar deviation	30°

She does have hypoaesthesia to pinprick in the median nerve distribution of both hands involving the thumb, index, middle and radial half of her ring finger, and percussion over the carpal tunnels causes paraesthesias to radiate into these median nerve supplied digits (positive Tinel’s sign). There is also a positive Phalen’s test whereby holding the wrists flexed causes numbness in the digits of her hands, and a positive Durkan’s test again with pressure over the carpal tunnels causing these symptoms.

Importantly there was no intrinsic weakness on either side in relation to the median nerves.

Results of any additional investigations since the original MAC

Ms Gozmierska has not had any further investigations carried out.”

1. Relevant to his assessment of whole person impairment for sensory involvement Medical Assessor Pillemer noted that the maximum upper extremity is 39% (AMA 5 page 492). Relevant to his assessment of whole person impairment resulting from injury sustained by Ms Gozmierska to her left upper extremity (wrist and hand), with reference to AMA 5 page 482, Medical Assessor Pillemer considered it reasonable to suggest for Ms Gozmierska’ left side, Grade 4 with 10% sensory deficit, which gives 3.9%, which rounds up to 4% upper extremity impairment, which equates to 2% whole person impairment. Relevant to his assessment of whole person impairment resulting from injury sustained by Ms Gozmierska to her right upper extremity (wrist and hand), with reference to AMA 5 page 482, Medical Assessor Pillemer considered it would be reasonable to suggest for Ms Gozmierska’s right side, Grade 4 with 20% sensory deficit, which gives 7.8% upper extremity impairment, which rounds up to 8% upper extremity impairment, which equates for 5% whole person impairment. The total whole person impairment using AMA 5 Combined Values Chart is 7%.

MAC

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

2. In summary, Tyres 4 U submits:

   (a)    the Medical Assessor has assessed Ms Gozmierska’s left and right wrists with reference to both nerve damage (evidenced at pages 2 and 4 of the MAC) and loss of range of movement (evidenced at pages 2 and 3 of the MAC), which is contrary to the Guidelines, and

   (b)    the Medical Assessor failed to provide any or any sufficient reasoning to explain the divergence between his assessment and that provided by both Dr Lai and Dr Quain in their capacity as independent medical examiners, with reference to the Medical Assessor’s failure to address why he has included range of movement when Dr Lai has not done so and the Medical Assessor’s failure to address why he considers Ms Gozmierska’s condition has reached maximum medical improvement when Dr Quain has not done so.

3. In reply, the Ms Gozmierska submits that:

   (a)     the Medical Assessor has assessed Ms Gozmierska’s left and right wrists with reference to both carpal tunnel syndrome and loss of range of movement appropriately and in accordance with the Guidelines, but says should such submission be incorrect Ms Gozmierska’s whole person impairment should be 23% whole person impairment, being 39% upper extremity impairment in respect of the bilateral carpal tunnel condition, and

   (b)     the Medical Assessor has provided appropriate commentary and reasoning in relation to his assessment, with reference to the Medical Assessor having considered the special investigations conducted by Dr Daud, the diagnosis, and acknowledgement as to how his assessment differed from that of the independent medical examiners, Dr Lai and Dr Quain.

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.

Review of the MAC

1. The Medical Assessor recorded a deemed date of injury of 1 May 2020. The Medical Assessor recorded that Ms Gozmierska’s symptoms of bilateral hand discomfort and numbness started in about 2020 with diagnosis of bilateral carpal tunnel syndrome made by her treating general practitioner. The Medical Assessor noted that medical management included physiotherapy, swimming, and a right-hand night splint. The Medical Assessor described Ms Gozmierska’s general health as good but noted prescription medication for a thyroid condition. The Medical Assessor recorded Ms Gozmierska’s present symptoms:

   “…present complaints of numbness in the median nerve distribution ie three and half fingers have been thumb, index, middle and radial half of ring finger. Pain is also felt at the volar aspect of both wrists… There is discomfort and numbness in three and a half fingers both hands in the median nerve distribution.”

2. The Medical Assessor recorded his findings on physical examination:

   “On sensory testing using two-point discrimination, it confirmed numbness in three and a half fingers bilaterally. Phalen’s test was positive bilaterally and Tinel sign was positive bilaterally for carpal tunnel syndrome in each case. Reference Table 16-10, page 482, AMA 5, the grade 3 sensory deficit in the range 26% to 60% sensory deficit. The maximum is not automatically chosen but the clinical findings are consistent with a grade 3, 50% sensory deficit ie one-half bilaterally. It is also indicative of bilateral carpal tunnel syndrome. There is measurable restriction in range of motion in both wrists, reference AMA 5, Chapter 16. Reference AMA 5, wrist range of motion, page 467 to 469, Figure 16-28 to Figure 16-31.

   Right wrist

Palmar Flexion	40 degrees	3% upper extremity
Dorsiflexion	40 degrees	4% upper extremity
Radial deviation	10 degrees	2% upper extremity
Ulnar deviation	20 degrees	2% upper extremity

Left wrist

Palmar Flexion	30 degrees	5% upper extremity
Dorsiflexion	40 degrees	4% upper extremity
Radial deviation	10 degrees	2% upper extremity
Ulnar deviation	30 degrees	0% upper extremity”

1. The Medical Assessor relevantly provided details of diagnostic investigations undertaken by Ms Gozmierska dated 14 February 2023 under the care of Dr Daud, with recommendations. The Medical Assessor relevantly noted medical management remained conservative.

2. The Medical Assessor described Ms Gozmierska’s presentation as being consistent and provided assessment at 31% whole person impairment resulting from a combination bilaterally of the range of motion and a combination bilaterally of the carpal tunnel syndrome.

3. The Medical Assessor noted the two reports of Dr Daud and confirmed Ms Gozmierska had not come to carpal tunnel release surgical treatment. The Medical Assessor noted the report of Dr Lai prepared in his capacity as independent medical examiner with comment that while Dr Lai found bilateral upper extremity motor deficit, he did not. The Medical Assessor noted the report of Dr Quain but restricted his comment to agreement with Dr Quain on the issue of causation.

Review of the treating medical evidence

1. Ms Gozmierska has come under the general medical care of the doctors practising out of Stanhope Park Family Medical Care, and it is evident that Ms Gozmierska presented in mid-2022 with carpal tunnel syndrome symptoms, with referral to Dr Daud and with referral for physiotherapy treatment.

2. Ms Gozmierska was initially assessed by Dr Daud on 30 August 2022 and reviewed on 14 February 2023, at which time Dr Daud described Ms Gozmierska as suffering persistent symptoms since last review. On this occasion Dr Daud described bilateral neurological examination findings as normal, with negative Tinel and Phelan testing. However, with repeat bilateral nerve conduction study demonstrating median nerve compression at the wrist “moderate on the right and mild to moderate on the left,” Dr Daud recommended right carpal tunnel release surgery.

Review of the independent medical evidence

1. Ms Gozmierska was independently initially assessed by Dr Quain on 2 February 2023. Dr Quain provided a report dated 8 February 2023.

2. In his initial report Dr Quain described Ms Gozmierska becoming symptomatic in May 2020 while working with Tyres 4 U. Dr Quain noted Ms Gozmierska had come under the care of her general practitioner, with referral for physiotherapy treatment and nerve conduction testing. Dr Quain noted Ms Gozmierska had been provided with splinting. Dr Quain noted Ms Gozmierska’s prescription medication for a thyroid condition. Dr Quain reported that the nerve conduction studies undertaken by Ms Gozmierska on 30 August 2022 were consistent with right sided carpal tunnel syndrome. Dr Quain reported on examination:

   “Today, in the right shoulder, wrist and hand, there was no physical abnormality, with a full range of motion. There was no evidence of wasting in the thenar or intrinsic muscles and today, her Phalen’s test was actually negative. Finger movement was full and pain-free.”

3. However, Dr Quain accepted Ms Gozmierska remained symptomatic despite physiotherapy treatment splinting, and said:

   “Given the fact that it is now six months since the cessation of her work and she has used a splint for over a year, I believe that it is unlikely her symptoms are going to resolve, and that surgical treatment may be indicated.”

4. Ms Gozmierska was re-assessed by Dr Quain on 5 October 2023, being just six months prior to when Ms Gozmierska was assessed by the Medical Assessor. Dr Quain reported on examination on this occasion:

   “In the hands and wrists today, on both sides, there was a full range of motion in the wrists. She did however have some pain on compression of the carpal ligament (positive de Quervain’s test) and with repeated movement in flexion her Phalen’s test on the right side was today positive.”

5. Dr Quain accepted Ms Gozmierska suffered “signs and symptoms consistent with a right greater than left carpal tunnel median nerve compression” and while he said the use of night splints may assist Ms Gozmierska, he remained of the view she required surgical treatment “at least on the right side.”

6. Dr Quain did not provide an assessment of whole person impairment against a backdrop of Ms Gozmierska’s condition having not reached maximum medical improvement.

7. Ms Gozmierska was independently assessed by Dr Lai on 4 April 2023 by video link, being approximately one year prior to Ms Gozmierska being assessed by the Medical Assessor . Dr Lai provided a report dated the same day. Dr Lai also provided a report dated 16 May 2023 in which he provided comment in response to Dr Quain’s report dated 8 February 2023, a report dated 17 August 2023 in which he provided assessment of whole person impairment resulting from Ms Gozmierska’s bilateral upper limb injury, and a report dated 11 December 2023 in which he provided comment in response to Dr Quain’s report dated 11 October 2023.

1. In his initial report Dr Lai described Ms Gozmierska becoming symptomatic in May 2020. Dr Lai noted Ms Gozmierska’ prescription medication for a thyroid condition. Dr Lai noted Ms Gozmierska had come under the care of her general practitioner and Dr Daud. Dr Lai noted Ms Gozmierska had received physiotherapy treatment, including splinting. Dr Lai described Ms Gozmierska’s presentation:

   “She continued to have the symptoms of pain, paraesthesia, and numbness in the sensory distribution of the median nerves in the hand, the right side worse than the left. There would also be continual radiation of the pain proximally into the wrists, elbows, and upper arms. She continues to have weakness of the hand grip, the right side being worse, which is associated with loss of dexterity, as well. Ms Gozmierska continues to experience nocturnal symptoms waking up regularly every night.

   Because of the numbness in her hands, with delayed temperature sensation, she has also experienced scalds to her right thumb. This happened on two occasions resulting in blisters on her right thumb.”

2. While Dr Lai’s physical examination of Ms Gozmierska was limited as it was conducted via video link, he reported:

   “Examination of both palms did not reveal any obvious thenar atrophy bilaterally. She indicated the areas of numbness and paraesthesia in her left and right thumbs, index, middle and ring fingers. This was in the sensory distribution of the median nerve to the hands. No evidence of any scalds or burns was noted in her fingers or thumbs.

   Self-demonstration of Phalen’s and reverse Phalen’s tests was positive for the right but negative for the left side. Self-demonstration of Tinel sign was negative bilaterally. Self-demonstration of Durkan’s sign with thumb pressure on the contralateral mid-wrist flexor crease region was positive for the left and right sides.

   The active range of movements of her wrists and digit joints were even and normal bilaterally.”

3. In his most recent report Dr Lai provided assessment of 19% whole person impairment, which included a combination bilaterally of carpal tunnel syndrome and motor deficit. Dr Lai’s assessment did not include range of motion.

Legal considerations

1. In submission, complaint is made by Tyres 4 U that the Medical Assessor has assessed Ms Gozmierska’s left and right wrists with reference to both nerve damage and range of motion, which the Appeal Panel agrees is contrary to the Guidelines.

2. Chapter 2 of the Guidelines provides that AMA 5 Chapter 16 (page 433) applies to the assessment of permanent impairment of the upper extremities, subject to identified modification, which includes modification identified in clause 2.9:

   “If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450-79) for that upper extremity. AMA 5 Section 16.5 should be used for evaluating such impairments.

   For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA 5 tables 16-10 and 16-11 (pp 482 and 484).”

3. While in submission, complaint is also made by Tyres 4U that the Medical Assessor failed to provide any or any sufficient reasoning to explain the divergence between his assessment and that provided by both Dr Lai and Dr Quain in their capacity as independent medical examiners, the Appeal Panel notes the task of the Medical Assessor was to assess Ms Gozmierska as she presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines. The Medical Assessor is not bound to agree with findings of other assessors, nor is he required to choose between their assessments. The task of the Medical Assessor is described in State of New South Wales v Kaur [2016] NSWSC 346:

   “In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

   ‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

   Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

   ‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”

4. As far as the standard of reasons required of the Medical Assessor, the standards of reasons required of a Medical Assessor were described in Vitaz v Westform (NSW) Ptd Ltd (2011) NSWCA 254:

   “Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.”

Consideration

1. Complaint is made by Tyres 4 U that the Medical Assessor has assessed Ms Gozmierska’s left and right wrists with reference to both nerve damage and range of motion, which the Appeal Panel agrees is contrary to Chapter 2, clause 2.9 of the Guidelines, and for the reasons outlined above the Appeal Panel accepts the Medical Assessor erred in providing his assessment of whole person impairment with reference to a combination bilaterally of range of motion and sensory involvement, which necessarily results in a reduction in the Medical Assessor’s assessment of Ms Gozmierska’s whole person impairment.

2. Furthermore, relevant to sensory involvement, following preliminary review of the original medical assessment, the Appeal Panel harboured a real concern regarding the Medical Assessor’s bilateral use of Grade 3, with 50% sensory deficit, which gives 20% upper extremity impairment, which equates to 12% whole person impairment. Grade 3 implies significant median nerve damage, which was not reflected in Ms Gozmierska’s complaints or findings of Dr Daud when he examined Ms Gozmierska on 14 February 2023. Following his recent examination of Ms Gozmierska on 24 June 2024, Medical Assessor Pillemer reported Ms Gozmierska’s symptomology reflected a fairly mild degree of carpal tunnel syndrome in that she complained of waking with numbness and pins and needles in one or other hand on average “every second night”, with recognition that her left hand was less troublesome than her right hand in that she only woke with numbness and pins and needles in her left hand “once or twice a week.” On the left, Medical Assessor Pillemer used Grade 4, with 10% sensory deficit, which gives 3.9% upper extremity impairment (rounded up to 4%), which equates to 2% whole person impairment, and on the right, Medical Assessor Pillemer used Grade 4, with 20% sensory deficit, which gives 8% upper extremity impairment, which equates to 5% whole person impairment.

3. It is evident from Medical Assessor Pillemer’s examination report that there is a marked disparity between the bilateral median nerve damage suffered by Ms Gozmierska found by the Medical Assessor and the bilateral median nerve damage suffered by Ms Gozmierska found by Medical Assessor Pillemer. Such disparity necessarily results in a further reduction in Ms Gozmierska’s initial assessment of whole person impairment.

CONCLUSION

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

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3/24
Applicant:	Malgorzata Gozmierska
Respondent:	TYRES 4U PTY LIMITED

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 Dr John Brian Stephenson 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. Left upper extremity (wrist and hand)	1/05/2020 (deemed-disease)	Chapter 2 pages 10-12	Chapter 16 pages 433 - 521	2%	nil	2%
2. Right upper extremity (wrist and hand)	1/05/2020 (deemed-disease)	Chapter 2 pages 10-12	Chapter 16 pages 433 - 521	5%	nil	5%
Total % WPI (the Combined Table values of all sub-totals)					7%