V.L. Boardman Pty Limited t/as Eyecare Plus v Anderson

DETERMINATION OF APPEAL PANEL
CITATION:	V.L. Boardman Pty Limited t/as Eyecare Plus v Anderson [2023] NSWPICMP 91
APPELLANT:	V.L. Boardman Pty Limited t/as Eyecare Plus and Rhonda Anderson
RESPONDENT:	Rhonda Anderson and V.L. Boardman Pty Limited t/as Eyecare Plus
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	15 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Both parties appealed; the appellant employer submitted that the Medical Assessor (MA) erred in the deduction he made with respect to the right knee, and erred in the manner of his assessment of the lumbar spine; the worker submitted that no errors were made with respect to the right knee or lumbar spine, but that the MA erred with respect to his assessment of the right upper extremity (thumb); Panel found some errors with respect to the manner in which the MA made his assessments, but those errors were corrected and there was no change to the MA’s assessments appealed by the employer; Held – the Panel found the MA erred with respect to his assessment of the right thumb; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 November 2022 V.L. Boardman Pty Limited t/as Eyecare Plus lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 October 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5)
On 13 January 2023 Rhonda Anderson lodged an Application to Appeal Against the Decision of the same Medical Assessor in respect of the same MAC.
She also 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

RELEVANT FACTUAL BACKGROUND

The Panel proposes to deal with all aspects of both parties’ submissions in this determination because of their relevance to the issues in dispute.

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 worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine the appeal for reasons which will become apparent in the body of this determination.

EVIDENCE

Documentary 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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant employer submits that the Medical Assessor erred in the deduction he made with respect to the right knee, and erred in the manner of his assessment of the lumbar spine.
In reply, the respondent worker submits that no errors were made with respect to the right knee or lumbar spine, but that the Medical Assessor erred with respect to his assessment of the right upper extremity (thumb).

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. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Ms Anderson, was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the lumbar spine, the right upper extremity (shoulder and thumb) and the right lower extremity (knee and ankle) resulting from an injury on
27 October 2020.
The Medical Assessor obtained the following history:
“Mrs Anderson’s problems began on 27 October 2020. She tripped on a box and fell forward, landing on her hands and knees. She said in the process she hyper-extended her back. She said she had widespread pain and she was picked up by her husband. They went to her usual GP but she was sent to Sutherland Hospital. X-rays were performed and she was not told that she had any bony injuries. She was discharged into the care of her GP. She started having physiotherapy.
She then saw Professor Bird who has been her long-term treating Rheumatologist. He organised a bone scan and this demonstrated some increased uptake in the knees and the base of both thumbs. The scan was reported as being unchanged from her previous scans. She was put onto anti-inflammatory medication.
Because of problems with her right shoulder an ultrasound was performed which suggested a rotator cuff tear. She was referred to Dr Popoff, Orthopaedic Surgeon, who gave her a cortisone injection on 30 November 2020. Dr Popoff organised a MRI scan which confirmed the rotator cuff tear.
In the meantime, she had an ultrasound of her ankle which suggested a rupture of the ATFL. She was put into a CAM walker and referred to Dr Lam, Orthopaedic Surgeon. He organised a MRI which confirmed the lateral ligament complex tear and there was also a talar dome lesion. Dr Lam performed surgery on 4 March 2021. This was a lateral ligament reconstruction and a talar dome chondroplasty. She was put back into the moon boot and had more physiotherapy.
At this stage, her shoulder was giving her significant problems and Dr Popoff referred her to Dr Trantalis, Orthopaedic Surgeon. He then went on to perform surgery, this time on the right shoulder on 6 April 2021 in the form of a rotator cuff repair, biceps tenodesis and decompression. She had a sling on for a period of time and then had more physiotherapy.
She was having increasing problems with her right thumb and she was referred to
Dr Sungaran, Hand Surgeon, who she saw in September 2021. He noted some tingling in the hand and organised an EMG study which was normal. An MRI demonstrated CMC arthritis and a ligament rupture at the base of the thumb. Dr Sungaran recommended surgery. There was some delay but eventually this was carried out on 16 December 2021. This was in the form of a trapeziectomy and ligament suspension. She went on to have hand therapy and had on-going problems.
She continued to see Dr Sungaran and he recommended a further release procedure which was carried out on 13 October 2022. This is only a week ago and she is currently wearing a sling and the sutures remain in situ.
Since the accident she has also had significant neck and back pain. Investigations have suggested widespread spondylitic changes with no evidence of nerve root compression. She has not seen specialists with regard to her neck or her back. She had been treated, however, by the physiotherapist with physiotherapy and hydrotherapy.
She had on-going problems with both her knees, the right more so than the left. X-rays demonstrated significant osteoarthritis which was similar to that which had been present prior to her fall. She has not seen specialists with regard to her knees.”
The Medical Assessor then noted her present treatment and symptoms, adding:
“Mrs Anderson said she had not been involved in any previous or subsequent accidents or injuries. She did have rheumatic fever as a child and had been under the care of Professor Bird, Rheumatologist. She said that she would get pain in various joints but was in remission at the time of her accident. She said that she was not on any regular medication but would occasionally take Mobic…
She had been investigated as far back as 2014 which demonstrated significant arthritis in both her knees. She also had arthritis at the base of both her thumbs.
In 2012 she developed a cervical discitis at C5, complicated by osteomyelitis. She recovered fully from this.”
Findings on physical examination were reported as follows:
“She was of average build. She had normal spinal alignment. She was noted to move very stiffly. She had a short stepping gait. She could perform some heel and toe walking but could perform very little of a squat.
On assessment of range of movement of the thoracolumbar spine, this was restricted in all directions. Forward flexion was to one-half of the expected range and backward extension minimal. Lateral movement was minimal towards the right and towards the left one-half of the expected range. Rotation was minimal towards the right and one-half of the expected range towards the left. Straight leg raising was severely limited bilaterally. She could, however, extend her legs from a seated position with negative neural tension tests. I couldn’t detect any wasting or specific muscle weakness involving the lower extremities. Reflexes were equal and normal. There was no altered sensation. There was tenderness over both sacroiliac areas.
With regard to the knees, there was obvious arthritis with crepitations throughout the range that she demonstrated. There was a full range of movement on the left but on the right she displayed full extension with flexion to 100 degrees.
With regard to the right ankle, plantar flexion was to 50 degrees and dorsi flexion 10 degrees.
With regard to the hindfoot, inversion was 20 degrees and eversion 10 degrees. There was no instability of the ankle but tenderness on the under-surface of the lateral malleolus.
With regard to the right shoulder, forward flexion was to 130 degrees and extension 30 degrees. Abduction was 90 degrees and adduction 30 degrees. External rotation was 50 degrees and internal rotation 80 degrees.
There was a full range of movement of the left shoulder.
With regard to the right thumb, there was evidence of surgery including recent surgery. She, however, displayed a reasonable range of movement. Radial abduction of the thumb was 40 degrees. There was 3cm lack of adduction and opposition 6cm. There was generalised tenderness around the CMC and MP joints. There was difficulty with pincer gripping because of pain.”
The Medical Assessor then set out details of the radiological material he had to which we will refer more fully below.
In summarising the injuries and diagnoses, the Medical Assessor said:
“In a fall at work on 27 October 2020 Mrs Anderson aggravated spondylitic changes involving the lumbar spine.
She aggravated osteoarthritis involving the right knee. She sustained a lateral ligament complex rupture involving the right ankle with a talar dome lesion and this was treated surgically.
She sustained a rotator cuff lesion involving the right shoulder which was treated surgically. She aggravated degenerative changes of the base of the right thumb and sustained a ligamentous rupture and this was treated surgically.”
The Medical Assessor made the following assessments:
“For the lumbar spine I have assessed 5% WPI.
For the right upper extremity I have assessed 10% WPI.
For the right lower extremity I have assessed 8% WPI.
This is a combined total of 21% WPI.”
He explained his calculations as follows:
“With regard to the lumbar spine, Mrs Anderson qualifies in DRE Lumbar Category 2 at 5 to 8% WPI. There is a history of injury with dysmetria noted on examination. There is no evidence of radiculopathy that would suggest a higher category. I have not added ADL’s for the lumbar spine as I feel that the effect on her ADL’s is predominantly from her other injuries.
With regard to the right shoulder, range of movement has been used to assess impairment. This is according to Figures 16.40, 16.43 and 16.46. Flexion to 130 degrees is 3% UEI and extension to 30 degrees is 1% UEI. Abduction to 90 degrees is 4% UEI and adduction to 30 degrees is 1% UEI. External rotation to 50 degrees is 1% UEI and internal rotation to 80 degrees is 0% UEI. This is a total of 10% UEI.
With regard to the right thumb CMC joint radial abduction to 40 degrees is 2% digital impairment and lack of adduction 3cm is 3%. Opposition 6cm is 3%. This is a total of 8% digit impairment. This converts to 3% hand impairment, which converts to 3% UEI.
According to Table 16.27, an arthroplasty of the CMC joint is 11% UEI. This is a combined with 3% for the range of movement and this results in 14% UEI. After a one-half deduction this is 7% UEI. Combining this with 10% for the shoulder is 16% UEI, which converts to 10% WPI.
With regard to the right knee, according to Table 17.10, flexion to 100 degrees is 10% LEI. According to Table 17.11, dorsi flexion of the ankle to 10 degrees is 7% LEI. According to Table 17.12, hindfoot eversion to 10 degrees is 2% LEI and inversion to 20 degrees is 2% LEI. Adding figures for the ankle and hindfoot is 11% LEI. Combining this with 10% LEI for the knee is 20% LEI, which converts to 8% WPI.
With regard to the right knee, there is significant arthritis but the appropriate Rosenberg views were not provided to assess impairment and subsequently range of movement has been used to assess impairment. If the Arthritis Table has been used, however, this would have been deducted as pre-existing.”
The Medical Assessor then turned to consider the other medical evidence, and said:
“There are treating doctor reports from Professor Bird, Rheumatologist; Dr Popoff, Orthopaedic Surgeon; Dr Trantalis, Orthopaedic Surgeon; Dr Sungaran, Hand Surgeon; and they outline their management of Mrs Anderson’s condition as has been documented in the body of the report above.
Dr Endry-Walder, Orthopaedic Surgeon, supplied a medico-legal report dated 25 November 2021. I agree with Dr Endry-Walder’s estimate of DRE Lumbar Category 2 but I didn’t feel that the ADL’s were added because of the back condition but rather her other problems.
With regard to the right shoulder, Dr Endry-Walder estimated a not dissimilar assessment as my own. He found similarly to myself with regard to the ankle impairment but he found a flexion contracture of the knee, whereas I found this not to be present on my assessment today but rather some restriction of flexion.
Dr Endry-Walder used restriction of range of movement of the right thumb as I did, but he did not combine this with the arthroplasty of the CMC joint.
Dr J Stephen, Orthopaedic Surgeon, supplied a medico-legal report dated 5 May 2022. My findings with regard to the right upper extremity and right lower extremity are not dissimilar to those of Dr Stephen. He estimated for the thumb, the resection arthroplasty but the Guidelines state that this is to be combined with restriction of range of movement. Dr Stephen was not asked to assess impairment for the lumbar spine.”
The Medical Assessor added:
“Mrs Anderson had significant arthritis involving her knees but the arthritis has been excluded in the assessment and is thus not included in the Table. There are spondylitic changes in the lumbar spine and this lady was asymptomatic prior to her accident and subsequently a one-tenth deduction may be relevant but this would not make a difference to the final assessment. There is significant arthritis in the CMC joint of the right thumb. This is contributing to her current level of impairment as were it not for this she would not have had the resection arthroplasty. I have estimated the extent of the deduction at one-half but the deduction is limited to the thumb.”
Dealing firstly with the right lower extremity (knee), the appellant employer makes the following submissions:
(a)    the Medical Assessor considered the applicant had aggravated osteoarthritis involving the right knee, as a result of the fall at work on 27 October 2020;
(b)    the Medical Assessor proceeded to assess 10% lower extremity impairment for the right knee, based on flexion to 100 degrees, and noted the following:
“With regard to the right knee, there is significant arthritis but the appropriate Rosenberg views were not provided to assess impairment and subsequently range of movement has been used to assess impairment. If the Arthritis Table had been used however, this would have been deducted as pre-existing.
Ms Anderson had significant arthritis involving her knees but the arthritis has been excluded in the assessment and is thus not included in the table”;
(c)    clause 1.27 of the Guidelines states permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if the impairment is not related to the compensable injury. The Medical Assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury;
(d)    it is not necessary for a pre-existing condition to have been symptomatic prior to the subject injury in order to attract a deduction pursuant to s 323 of the 1998 Act; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254;
(e)    a pre-existing injury, abnormality or condition must be taken into account if it has contributed, on the available evidence, to the overall level of permanent impairment assessed;
(f)    in Cole v Wenaline Pty Limited [2010] NSWSC 78, Schmidt J set out the process an MA is required to adopt in making a deduction for pre-existing conditions. In that matter, it was noted:
“For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment…The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined”;
(g)    in circumstances where the Medical Assessor had established, based on the evidence available, that the applicant had significant pre-existing osteoarthritis affecting her right knee, a deduction for pre-existing condition under s 323 ought to have been made by the Medical Assessor in assessing the applicant’s degree of permanent impairment related to the right knee;
(h)    the Medical Assessor noted there were no Rosenberg views available to him to allow for an assessment of permanent impairment using the Arthritis Table, referring to table 17- 31 of the AMA5. Therefore, the Medical Assessor used range of movement to assess impairment, and
(i)    if the absence of Rosenberg views made the degree of permanent impairment attributable to the applicant’s pre-existing osteoarthritis difficult to determine, the Medical Assessor ought to have applied a deduction of 10% to his assessment for the right knee, as provided by section 323(2) of the 1998 Act.

The appellant employer does not challenge the primary assessment with respect to the right knee, but only the deduction made by the Medical Assessor.
In these circumstances, we do not consider it necessary for Ms Anderson to be re-examined, nor do we consider that further investigations are warranted for the same reason, since we are only looking at the deduction made by the Medical Assessor.
In addition, there is no appeal against the assessment with respect to the right ankle such that any deduction can only be made with respect to the right knee.
In this regard, we do agree with the appellant that there was clear evidence of significant pre-existing osteoarthritis affecting Ms Anderson’s right knee.
However, as the Medical Assessor noted, that arthritis “was similar to that which had been present prior to her fall…” such that it apparently did not affect her functioning to any significant degree. She also said that she had not been involved in any previous or subsequent accidents or injuries.
The Medical Assessor also noted that: “She had been investigated as far back as 2014 which demonstrated significant arthritis in both her knees…” which also suggests that despite this condition, she was able to function adequately.
In these circumstances, and having regard to the legislation and the authorities referred to by the appellant employer, we consider that a one-tenth deduction is appropriate.
The Medical Assessor assessed 10% LEI for the right knee. If a one-tenth deduction is made, this brings it to 9%.
Combining that to the assessment of 11% LEI for the right ankle, the total becomes 19% which still converts to 8% WPI.
This then means that having accepted the appellant’s submissions as regards a deduction, the total WPI for the right lower extremity remains at 8% such that there is no change to the MAC or the accompanying Table.
Turning next to the lumbar spine, the appellant employer submits as follows:
(a)    the Medical Assessor referred to a whole-body scan dated 15 January 2015 (pre-injury) which showed arthritic changes at the lumbar spine particularly at L4/5;
(b)    the Medical Assessor opined the applicant had aggravated spondylitic changes involving the lumbar spine as a result of her fall at work on 27 October 2020;
(c)    the Medical Assessor assessed DRE Category II and 5% WPI related to the lumbar spine;
(d)    The Medical Assessor recorded the following:
“There are spondylitic changes in the lumbar spine and this lady was asymptomatic prior to her accident and subsequently a one-tenth deduction many be relevant but this would not make a difference to the final assessmen”, and
(e)    regardless of whether a deduction for pre-existing condition to the lumbar spine would make a difference to the overall assessment for that body part, the Medical Assessor should have commented on and included any such applicable deductions in the assessment table.
We agree with point (e) of the appellant’s submissions above.
Having said that, the Medical Assessor was correct in saying that a one-tenth deduction “would not make a difference to the final assessment”.
We regard this more as an “obvious error” rather than a demonstrable error, essentially akin to a “short-cut” made by the Medical Assessor.
For completeness, we agree with the appellant that a one-tenth deduction in respect of the lumbar spine is appropriate.
Deducting one-tenth from the 5% WPI assessed means that when rounding, the assessment remains at 5% WPI such that again, there is no change to the MAC or the accompanying Table.
Thus the Medical Assessor’s assessments remain as per the Table accompanying the MAC.
Although we have identified some errors, there is no change to the findings and assessments by the Medical Assessor such that the MAC in this respect is confirmed.
We turn now to Ms Anderson’s submissions regarding the assessment of the right thumb.
Ms Anderson submits as follows:
(a)    the Medical Assessor incorrectly applied s 323 of the Act relative to the assessment of WPI attributable to the right thumb injury;
(b)    there is no evidence of a pre-existing condition causing any impairment, let alone anything that would justify the deduction of 40% [sic-50%] posited by the Medical Assessor;
(c)    the fundamental problem with the Medical Assessor's approach is the assumption that evidence of pre-existing condition means, ipso facto, a deduction must be applied. This misunderstands the statutory scheme and is an error;
(d)    the applicant worked full time as an optical dispenser in itself suggests no absence of dexterity pre-injury;
(e)    there was no evidence of a prior, symptomatic, condition affecting the thumb;
(f)    true it is, as the respondent submits in the employer's primary appeal, that whether the condition is symptomatic or not is not necessarily determinative of the issue, but there needs to be evidence the condition contributes to the impairment;
(g)    by the same token, the mere existence of 'degenerative change' or 'arthritis' (as the respondent seeks to argues here) is insufficient to warrant a deduction; more is needed to attribute any assessable impairment to such a condition for it to be of any relevance;
(h)    the applicant, who was working full time in a busy role as an optical dispenser when injured, disavowed in her statement any impact or impairment on her day-to-day life by any physical injury or impairment, and
(i)    it is also worth observing the opinions of Professor Paul Bird:
"The question was raised as to whether this was an exacerbation of her underlying inflammatory arthropathy. This is not the case, her inflammatory arthropathy has been quiescent for many years and the current symptoms are a direct result of the injuries that occurred at her place of work…
Mrs Anderson suffered an injury at her place of work on 27 October 2020… The question asked in your correspondence is how this has affected her rheumatism. The incident at her place of work led to new injuries as documented. These were not present previously and did not exacerbate her previous rheumatic problems as these have been quiescent for a number of years. Mrs Anderson had previously suffered from a reactive arthropathy that occurred post infection, but this had resolved completely well before the time of the incident at her place of work There are no congenital factors or underlying factors that would have led to her current symptoms. There were no non-work related factors that would have led to the onset of her symptoms… There were no documented pre-existing or degenerative conditions contributing to her current injury… Mrs Anderson had a previous diagnosis of inflammatory arthropathy that occurred after an infection, this resolved completely, and she had been discharged from rheumatology care. Most recent symptoms have occurred in the context of an injury."
The Medical Assessor said:
“There is significant arthritis in the CMC joint of the right thumb. This is contributing to her current level of impairment as were it not for this she would not have had the resection arthroplasty. I have estimated the extent of the deduction at one-half…”
The Medical Assessor’s reference to “significant arthritis in the CMC joint of the right thumb” would appear to be a reflection of the findings in the operation report in December 2021. This was some 14 months after Ms Anderson’s injury, however, there is no evidence as to the state of her thumb at the time of her injury.
In our view, there was no significant evidence of a pre-existing condition in the right thumb.
We agree with Professor Bird that Ms Anderson’s pre-existing rheumatoid arthritis was not of any relevance to the assessment of the right thumb for the reasons he gave which are set out above.
Having said that, there was certainly evidence of some pre-existing degenerative changes in the right thumb, but we do not regard them as substantial.
We note that X-rays taken in January 2021, about three months after the injury, revealed “mild to moderate” osteoarthritis.
An ultrasound in June 2021, about eight months post-injury, showed “mild” osteoarthritis.
In short, there was no evidence of moderate or severe osteoarthritis sufficient to contribute to any impairment.
Both parties have again referred to the authorities relevant to the interpretation of s 323 of the 1998 Act.
We agree with the principles established by those decisions and accept what both parties have stated in this regard.
It is true that it is not necessary for a pre-existing condition to have been symptomatic prior to the subject injury in order to attract a deduction pursuant to s 323 of the 1998 Act.
However, in order for a deduction to be made, there must be evidence that any pre-existing abnormality, condition or previous injury contributes to the impairment.
The respondent in this appeal points to the fact that Dr Endrey-Walder, in his report dated
25 November 2021, found evidence of a pre-existing condition in the right thumb contributing to the impairment. He applied a one tenth deduction for this pre-existing condition.
We are of course not bound by the opinions of other medical practitioners, but having regard to the whole of the evidence we are of the view that a one-tenth deduction is appropriate.
The Medical Assessor assessed in accordance with Table 16.27. He said:
“an arthroplasty of the CMC joint is 11% UEI. This is a combined with 3% for the range of movement and this results in 14% UEI. After a one-half deduction this is 7% UEI. Combining this with 10% for the shoulder is 16% UEI, which converts to 10% WPI.”
If a one-tenth deduction is applied to the 11% UEI, this brings it to 10%.
The Medical Assessor assessed a combined WPI for the right upper extremity of 14%.
Deducting one-tenth from this assessment (1.4%) leaves a rounding assessment of 13% WPI for the right upper extremity.
This then brings the total WPI to 23%.
For these reasons, the Appeal Panel has determined that the MAC issued on
27 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W4524/22
Applicant:	Rhonda Anderson
Respondent:	V.L. Boardman Pty Limited t/as Eyecare Plus

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 Gregory McGroder 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. Lumbar Spine	27/10/20	Chapter 4 Pages 26-33	Chapter 15 Page 384 Table 15.3	5%	1/10th	5%
2. Right Upper Extremity	27/10/20	Chapter 2 Pages 13-15	Chapter 16 Pages 476/477/479 Figures 16.16/16.17/16.18/ 16.19/16.27/16.40/16.43/16.46/	14%	1/10th	13%
3. Right Lower Extremity	27/10/20	Chapter 3 Pages 16-25	Figures 17.10/17.11/17.12	8%	1/10th	8%
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					23%

[2023] NSWPICMP 91

15 March 2023