Vegco Pty Ltd v Anderson

DETERMINATION OF APPEAL PANEL
CITATION:	Vegco Pty Ltd v Anderson [2023] NSWPICMP 22
APPELLANT:	Vegco Pty Ltd
RESPONDENT:	Barry Anderson
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	27 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; respondent worker suffered injury to thumbs, knees and lumbar spine; respondent’s claim for compensation with respect to his upper extremities was limited to his thumbs; Medical Assessor (MA) included in his assessment a component for restricted movement of the wrists; whether MA erred by doing so; whether MA also erred by not making section 323 deduction for pre-existing degeneration in lumbar spine; Held – Appeal Panel held that MA erred with respect to both issues; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 November 2022 Vegco Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
6 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 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant’s business is processing and packaging food for supermarkets. The appellant employed Barry Anderson, the respondent, as a team leader. The respondent worked within a cold storage room. His job included chemical analysis of food, and processing, storage and packaging of food.
In a statement the respondent signed on 26 September 2021, he said that on 4 December 2018 he was moving a tub of vegetables that needed to be placed in a slicing machine. He was carrying the tub with both hands when he tripped on a floor grate and fell forwards. He crashed heavily on the floor and struck a bench on his descent. He said that this caused him to suffer excruciating pain in both of his thumbs and pain in his back and knees.
The respondent attended the emergency department at Campbelltown Hospital, where he was observed over a period of hours and then discharged. He subsequently visited his general practitioner (GP) and remained off work for a week. He had physiotherapy to his back and hands and was ultimately referred to surgeon Dr Chris Scott with respect to his thumbs. Dr Scott initially treated him with cortisone injections which the respondent said did not really help. Dr Scott recommended surgery for his thumbs. On 6 November 2019 the respondent had surgery on his left thumb when a trapeziectomy was done at the base of the left thumb and a fusion of the metacarpo-phalangeal joint. This did not provide the respondent with much relief and he declined the recommendation for surgery on his right thumb.
In a subsequent statement the respondent signed on 8 August 2022 he recorded that he had a further fall at his work on 23 February 2019 that resulted in a dislocation of his little and ring fingers of his left hand. He said that, to the best of his recollection, he took some pain killers and that the injury settled after two or three weeks and that, after that, his two fingers were fine and no further pain resulted from the dislocation.
The respondent’s solicitors organised for the respondent to be examined by orthopaedic surgeon Dr James Bodel on 19 November 2020 to report on various aspects of the respondent’s injury, including the degree of permanent impairment the respondent had from his injury. In a report of 19 November 2020 Dr Bodel advised the respondent’s solicitors that his diagnosis of the respondent’s injury was an
“aggravation, acceleration, exacerbation and deterioration of the carpometarcarpal joint arthritis at the base of both thumbs and the metacarpo-phalangeal joint arthritis in the left thumb and a soft tissue musculoligamentous injury involving aggravation, acceleration, exacerbation and deterioration of underlying degenerative change in the lumbosacral region”.
He advised that he assessed the respondent’s whole person impairment (WPI) from his injury as 13%. This comprised 7% WPI with respect to the respondent’s lumbar spine and 4% WPI with respect to the respondent’s left thumb (which Dr Bodel explained was due to the restricted range of movement and the fusion of the metacarpo-phalangeal joint and the resection arthroplasty of the carpometarcarpal joint), 1% WPI for the right thumb and 1% WPI for scarring. Dr Bodel explained that he did not make a deduction for “pre-existing impairment”.
On 31 May 2021 the respondent’s solicitors wrote to the appellant’s insurer advising the insurer that the respondent claimed compensation of $30,817.96 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 13% WPI from his injury on 12 December 2018. It provided several documents to the insurer to support the respondent’s claim, including Dr Bodel’s report of 19 November 2020.
The insurer then arranged for the respondent to be examined by hand and plastic surgeon Dr David Pennington on 20 August 2021. In a report of 8 September 2021 addressed to the insurer Dr Pennington advised that the respondent had suffered a significant injury to the basal two joints of both thumbs which, consistent with examinations conducted by the respondent’s GP and Dr Scott, were disruptive injuries to the carpometarcarpal and metacarpo-phalangeal joints of both thumbs. Dr Pennington advised that the respondent, for some years before his injury, had osteoarthritis in “at least” both the carpometarcarpal joints, which was asymptomatic at the time of his injury. Dr Pennington provided a diagnosis of severe hyperextension injuries of both thumbs with a possible volar plate disruption of the MP joint of the left thumb and peri-capsular injuries of the CMC joints of both thumbs with acute aggravation of previous asymptomatic CMC joint arthritis. Dr Pennington advised the insurer that he considered the respondent had not reached “maximal medical improvement” and suggested that the respondent’s WPI be assessed in six months.
In a letter of 14 September 2021 to the respondent, the insurer advised the respondent that, based on the report of Dr Pennington, it considered that the permanent impairment from his injury of “23 February 2019 is not currently capable of assessment” and this was because “maximum medical improvement is yet to be reached”. It advised the respondent that it relied upon the opinion of Dr Pennington dated 8 September 2021.
The appellant’s solicitors organised for the respondent to be examined by orthopaedic surgeon Dr Stephen Rimmer on 4 December 2021. In a report of 20 January 2022 Dr Rimmer set out a history he obtained from the respondent with respect to the injury the respondent had suffered on 4 December 2018 and on 23 February 2019. With respect to the injury on 23 February 2019 the history Dr Rimmer set out in his report was that it resulted in the respondent “re-injuring both thumbs” and to the respondent being referred to Dr Scott and a left trapeziectomy and fusion of the metacarpo-phalangeal joint of the left thumb.
Dr Rimmer advised the appellant’s solicitors that “the worker’s condition is directly related to the incidents of 4/12/2018 and 23/2/2019”. He advised the appellant’s solicitors that he assessed the respondent has 0% WPI relating to him lumbar spine, 1% WPI relating to his left thumb and 0% WPI relating to his right thumb.
In a letter the insurer wrote to the respondent on 29 March 2022 it advised him, pursuant to s 78 of the 1998 Act, that it disputed he was entitled to permanent impairment compensation for his injury on 4 December 2018. It advised him this was because his permanent impairment from his injury was not more than 10% which was the threshold he had to exceed in order to be entitled to compensation for permanent impairment under s 66(1) of the 1987 Act. It advised him that Dr Rimmer had assessed that his permanent impairment was 1% WPI and that it disputed his entitlement to compensation based on Dr Rimmer’s assessment.
On 30 August 2022 the respondent’s solicitors lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (Application) whereby the respondent commenced proceedings against the appellant seeking determination by the Commission of his disputed claim for compensation under s 66 for permanent impairment from the injury he suffered on 4 December 2018. In the Application he described his injury in the following terms:
“On 4 December 2018, the applicant was at work and was moving a tub of vegetables which needed to go into a slicing machine. As he was carrying the tub in both hands, he tripped on a floor grate cover which had not been properly sealed and fell forward still holding the heavy tub. He landed on the floor very awkwardly and both his thumbs were forced backwards as they were caught up in the tub he was carrying. He also had pain in his back and knee”
The respondent particularised his claim was for 13% WPI and that the “systems claimed” were lumbar spine, left upper extremity, right upper extremity and TEMSKI/scarring.
A delegate of the President of the Commission referred the medical dispute between the parties to the Medical Assessor to assess. The dispute was defined in that referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury (s319(c))
 whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 4 December 2018
Body part/s referred: Lumbar spine, Left upper extremity, Right lower extremity, Scarring (TEMSKI)
Method of assessment: Whole Person Impairment”
As said, the Medical Assessor issued the MAC in response to the referral on 6 October 2022 in which he assessed the appellant had 24% WPI.

MEDICAL ASSESSMENT CERTIFICATE

The Medical Assessor examined the respondent on 27 September 2022. The Medical Assessor obtained a history regarding the occurrence of the respondent’s injury and the treatment the respondent had for his injury that accorded with the respondent’s evidence in his statement. The Medical Assessed also obtained a history regarding the subsequent work place injury the respondent suffered, which the Medical Assessor noted was subluxation or possibly dislocation of the left ring and little fingers at the metacarpo-phalangeal joints. The Medical Assessor noted that that injury was managed conservatively and that the respondent achieved a good result.
The Medical Assessor conducted a physical examination of the respondent’s upper limbs and lumbar spine and recorded his findings in the MAC of the respondent’s wrist movements and thumb movements. Neither party took issue with the findings the Medical Assessor recorded.
Further, the Medical Assessor also recorded his findings from his examination of the respondent’s lumbar spine and neither party took issue with respect to those findings.
The Medical Assessor set out briefly in the MAC the results of investigations the respondent had on his hands and left thumb and on his lumbosacral spine. The Medical Assessor provided the following “summary of injuries and diagnoses”:
“Mr Anderson gives a history of tripping and falling forward in early December 2018. At the time he was carrying a plastic container full of vegetables. The position of each hand was on the edge of the container with his fingers curled under the lip of the container and his thumbs on the inside of the container wall. When he tripped on the grating and fell forward, he came down hard onto the plastic container, the edges of which forced his hands and wrists and particularly the thumbs into a position of hyper-extension. This resulted in damage to the carpo-metacarpal joints and the metacarpo-phalangeal joints of the thumbs bilaterally.
His condition was initially managed conservatively. Later it was considered appropriate to carry out a surgical procedure on the left thumb with the intention of doing the same procedure on the right thumb further down the track. The left thumb procedure consisted of a trapeziectomy at the base of the left thumb. At the same time an ankylosis was conducted of the metacarpo-phalangeal joint of the left thumb.
Unfortunately this did not give him a particularly spectacular result and he therefore declined to have this procedure carried out on the right hand. He has been left with significant dysfunction of both of the hands. The major feature is lack of capacity for gripping and holding. The thumbs are also very painful.”
The Medical Assessor’s assessment of the respondent’s impairment of his upper extremity included both a component for the restriction he found the respondent had of his wrists and a component for the restriction of movement he found that the respondent had of his thumbs. The Appeal Panel observes that with respect to the respondent’s left upper extremity it did not include any rating for resection arthroplasty impairment for the trapeziectomy the respondent had done as treatment of his left thumb.
The Medical Assessor recorded in the MAC that the total left upper extremity impairment of the respondent was 22% and for the right upper extremity was 14%. The Medical Assessor noted that that converted to 13% WPI and 8% WPI respectively. The Medical Assessor considered that there was no impairment for the scarring the respondent had from the surgery to his left thumb. The Medical Assessor considered that the respondent had pre-existing and significant degenerative changes in the carpometarcarpal joints of each thumb and that that contributed to a proportion of his permanent impairment with respect to his upper extremities such that a one-tenth deduction should be made under s 323(1) of the 1998 Act which reduced the respondent’s WPI from his injury to 12% for his left upper extremity and to 7% with respect to the right upper extremity.
The Medical Assessor assessed the respondent had 7% WPI with respect to his lumbar spine. Neither party took issue with that assessment. The Medical Assessor did not address when explaining his assessment of the respondent’s permanent impairment relating to his lumbar spine whether the respondent had a pre-existing condition in his lumbar spine that contributed to his 7% WPI.
In summary, the Medical Assessor assessed that as a result of the respondent’s injury on 4 December 2018, the respondent had 12% WPI of his left upper extremity, 7% WPI of his right upper extremity, 7% WPI of his lumbar spine and 0% WPI for scarring, which combined to 24% WPI.

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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel considered the material before it, which included the findings the Medical Assessor recorded in the MAC from his examination of the respondent’s thumbs and his examination of the respondent’s lumbar spine, with which neither party took issue, was sufficient for the Appeal Panel to determine the appeal.

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 submitted that the medical dispute that was referred to the Medical Assessor to assess was confined to the respondent’s bilateral thumbs, lumbar spine and scarring and did not include any permanent impairment relating to the respondent’s wrists. The appellant submitted that, in substance, the extent of the medical dispute that was referred was based upon the documents that had been exchanged between the parties which included the respondent’s permanent impairment claim form and the report of Dr James Bodel dated 19 January 2020. Those documents, according to the appellant, limited the dispute with respect to the respondent’s upper extremities to the impairment related to his thumbs and did not include any impairment related to his wrist.
The appellant submitted that the Medical Assessor erred because he included in his assessment of the respondent’s permanent impairment from the injury the respondent suffered on 4 December 2018, impairment that arose from the subsequent injury the respondent suffered on 23 February 2019. The appellant submitted that there was a lack of evidence to support the Medical Assessor’s finding that the respondent achieved a good result from the injury he suffered on 23 February 2019.
The appellant submitted that the Medical Assessor erred by not considering pre-existing degeneration the respondent had in his lumbar spine when assessing the respondent’s permanent impairment relating to his lumbar spine from the injury on 4 December 2018. The appellant submitted that a deduction ought to be made under s 323 for a proportion of the respondent’s impairment that was due to that pre-existing condition.
In reply, the respondent submitted that the evidence attached to the Application included material that indicated that he had suffered an injury to his wrists. That evidence was said to include a report of a left wrist injection the respondent had on 8 May 2019, an X-ray of his left hand and wrist done on 4 February 2020, the reports of Dr Bodel and Dr Scott, which reported a history of his having experienced pain at the base of his thumbs, and his statement wherein he described the mechanism by which he suffered injury as being a hyperextension of his wrist. The respondent submitted, in substance, that the medical dispute therefore included any impairment relating to his wrists and that consequently necessitated the Medical Assessor to consider an injury to his wrists when assessing his permanent impairment from the injury on 4 December 2018. The respondent further submitted that by virtue of [1.6] and [1.47] of the Guidelines the Medical Assessor had “authority to exercise clinical judgment when assessing the degree of permanent impairment”, which meant that if the Medical Assessor obtained a history of injury to the wrists and his clinical examination revealed an impairment of the wrists, the Medical Assessor was able to assess his impairment from his wrists.
The respondent submitted that the evidence indicated that he recovered from the injury to his fingers that occurred on 23 February 2019 and there was nothing within the MAC that any of the impairment the Medical Assessor attributed to the injury he suffered on 4 December 2018 included a component from the injury of 23 February 2019.

The respondent submitted that the evidence before the Medical Assessor was insufficient to warrant any deduction being made under s 323 of the 1998 Act.

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.
The medical dispute that the Medical Assessor was required to assess is that dispute that existed between the parties with respect to the claim the respondent made for compensation under s 66 of the 1987 Act for permanent impairment resulting from his injury on 4 December 2018. That dispute was crystallised by the correspondence passing between the parties.[1]
[1] Skates v Hills Industries Ltd [2021] NSWCA 142 at [27]-[35], [44] and [46] and Saka v Merrylands Christian Pre School Association Ltd [2022] NSWCA 768 at [40]-[44].
The claim form that the respondent presented to the appellant, which he signed on 26 May 2021, and which was provided to the appellant under cover of a letter from the respondent’s solicitors dated 31 May 2021, described the “body system affected by the injury” as being “lumbar spine, left and right upper extremities (thumbs), scarring”. The respondent relied on the report of Dr Bodel dated 19 November 2020 to support his claim. His solicitors provided that report to the appellant under the cover of their letter dated 31 May 2021. As noted earlier, Dr Bodel in that report provided a diagnosis of the respondent’s injury to the respondent’s thumbs as being “the aggravation, acceleration, exacerbation and deterioration of carpometarcarpal joint arthritis at the base of both thumbs and the metacarpo-phalangeal joint arthritis in the left thumb”. The assessment that Dr Bodel made of the respondent’s impairment relating to his upper extremities included no component relating to the respondent’s wrists.
The radiologist’s report of the injection that the respondent had to his left wrist on 8 May 2019, which the Appeal Panel observes was one of the documents that the respondent’s solicitors forwarded to the appellant when they notified the appellant of the respondent’s claim, did not indicate, let alone substantiate, that the respondent had suffered an injury to his left wrist. Nor did the X-ray of the respondent’s left hand and wrist that was done on 4 February 2020, which revealed only that there was a fusion across the respondent’s “first MCP joint” and a bony fusion.
In the Appeal Panel’s view the medical dispute that was referred to the Medical Assessor to assess, insofar as it related to the respondent’s upper extremities, was limited to the permanent impairment the respondent had relating to his thumbs. The appellant disputed the respondent’s claim, insofar as it related to the respondent’s thumbs, because it relied on the opinion of Dr Rimmer who had assessed the respondent’s impairment with respect to his right thumb as being 0% WPI and with respect to his left thumb as being 1% WPI. Simply put, the medical dispute between the parties, as crystallised by the correspondence that passed between them, insofar as it related to the respondent’s upper extremities, was limited to the permanent impairment the respondent had relating to his thumbs from the injury that occurred on 4 December 2018. Consequently, the Medical Assessor, whose assessment included the impairment the respondent had with respect his wrists, erred by including that component in his assessment. Given that, the MAC contains a demonstrable error.
With respect to the issue of the Medical Assessor not making any deduction under s 323(1) of the 1998 Act, when assessing the respondent’s impairment relating to his lumbar spine, as the Appeal Panel observed earlier, the Medical Assessor set out very brief summaries in the MAC of the results of the radiological investigations the respondent had undergone. These included an X-ray of the respondent’s lumbar spine on 7 December 2017 and a CT scan done on 21 September 2018. The summary the Medical Assessor provided was:
“Lumbar scoliosis concaved to the left. Degenerative changes. Minor longstanding interior compression of the lower thoracic vertebral bodies.”
Fuller details of these investigations can be obtained from the respective reports of the radiologists who reported on them. The Appeal Panel observes from the report of the X-ray done on 7 December 2017 that it revealed the respondent then had early degenerative osteoarthritis at anomalous articulation between the right transverse process of the L5 and sacrum, marked disc space narrowing with disc degeneration at L5/S1, moderate posterior disc space narrowing with disc degeneration at L4/5 and mild posterior disc space narrowing at the remaining lumbar disc. The report on the CT scan of done on 21 September 2018, essentially confirmed that pathology. The radiologist concluded that there were multi level degenerative changes most marked at L4/5.
The Appeal Panel also observes that Dr Bodel in his report of 19 November 2020 provided a diagnosis of the respondent’s injury, insofar as it affected his lumbar spine, as being “a soft tissue musculoligamentous injury involving aggravation, acceleration, exacerbation and deterioration of the underlying degenerative change in the lumbar sacral region”. The Appeal Panel notes that the Medical Assessor did not in the MAC provide a diagnosis of what constituted the respondent’s injury to his lumbar sacral spine.
The Appeal Panel considers that the diagnosis provided by Dr Bodel in his report of 19 November 2020 correctly describes the injury the respondent suffered to his lumbar spine in the incident of 4 December 2018. Bearing in mind the degeneration existing in the respondent’s lumbar spine, as revealed by the radiological investigations that happened before he suffered his injury, and bearing in mind too how it was that the respondent suffered injury on 4 December 2018, that is tripping over a grate whilst carrying a loaded crate and falling forwards and heavily hitting the floor, it is likely in the Appeal Panel’s view that the respondent’s symptoms and current impairment of his lumbar spine were precipitated from an aggravation of that existing degeneration consequent upon that incident. Necessarily then, the degeneration in the respondent’s lumbar spine that pre-existed the incident contributes to his current impairment relating to his lumbar spine. Without that pre-existing degeneration he would have been unlikely to have suffered an injury to his lumbar spine and would be unlikely to have an impairment resulting from his lumbar spine. The pre-existing degeneration he had in his lumbar spine therefore makes a difference to his outcome, in terms of his impairment, since without that pre-existing degeneration he would have no impairment.
In such circumstance, the Medical Assessor was wrong not to consider whether a proportion of the respondent’s permanent impairment was due to a pre-existing condition the respondent had in his lumbar spine. As just indicated, the Appeal Panel considers that a proportion of the respondent’s permanent impairment relating to the lumbar spine is due to a pre-existing degeneration. The Appeal Panel also considers that it would be too difficult, indeed impossible, to determine the exact extent to which that pre-existing condition contributes to his current impairment. In that circumstance, the Appeal Panel assumes it is 10%, consistent with s323(3) of the 1998 Act, which assumption is not at odds with the evidence.
The Appeal Panel rejects the appellant’s submission that part of the permanent impairment the Medical Assessor assessed the respondent to have with respect to his upper limbs included a component that resulted from the incident that occurred on 23 February 2019 in which the respondent suffered injuries to his left ring and little fingers. There is no evidence that reveals that that incident resulted in any impairment to the respondent’s thumbs, other than the mistaken history Dr Rimmer obtained. The evidence indicates that the incident resulted in an injury to the respondent’s left ring and little fingers only. Further, the evidence reveals that the respondent recovered from that injury. In arguendo, even if the respondent had not recovered, any ongoing consequence from such an injury would not affect the assessment of the impairment the respondent has relating to his thumbs. Hence, the assessment the Medical Assessor made of the impairment of the respondent with respect to his thumbs contains no component relating to the incident that occurred on
23 February 2019.
Correcting the errors the Medical Assessor made with respect to the assessment of the respondent’s permanent impairment relating to his upper extremities, as identified within the grounds of appeal the appellant raised in its appeal, the Appeal Panel assesses that the respondent has 4% WPI with respect to his right upper extremity and 5% WPI with respect to his left upper extremity. With respect to the right upper extremity this is comprised of 18% impairment of the thumb, which converts to 7% impairment of the hand which in turn converts to 6% upper extremity impairment and that ultimately converts to 4% WPI. When a s 323 deduction of 10% is made for the pre-existing condition in the respondent’s thumb, in regards to which neither party raised a complaint, 4% WPI is achieved. With respect to the left upper extremity, when corrected 5% WPI is computed, comprising 25% thumb impairment, which converts to 10% hand impairment, which in turn converts to 9% upper extremity impairment and that ultimately converts to 5% WPI. When a deduction of 10% is made under s323(1) (which neither party contested) an amount of 5% WPI is achieved.
Correcting the error the Medical Assessor made with respect to the assessment of the appellant’s lumbar spine, which was not to make a deduction under s 323(1), the Appeal Panel assesses the respondent’s permanent impairment to be 6% WPI with respect to his lumbar spine.
When those impairments are combined, 15% WPI is achieved.
The Appeal Panel notes that neither party raised an issue that when assessing the permanent impairment the respondent had with respect to his left thumb the Medical Assessor did not include any impairment relating to the trapeziectomy the respondent had to his left thumb, which in accordance with Table 16-27 of AMA 5 warranted an assessment of 11% upper extremity impairment. The Appeal Panel considers that the Medical Assessor was wrong not to include that when assessing the respondent’s impairment with respect to his left upper extremity. However, the Appeal Panel is unable to correct such an error.[2] The Appeal Panel, as an expert panel that includes two medical specialists, does not however want to be seen as countenancing that particular error and to that end highlights it now.
[2] Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]-[35].
For these reasons, the Appeal Panel has determined that the MAC issued on 6 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:	W5498/22
Applicant:	Barry Anderson
Respondent:	Vegco Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson 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)
Left upper extremity	4/12/2018	Chapter 2	Chapter 16	5%	1/10	5%
Right upper extremity		Chapter 2	Chapter 16	4%	1/10	4%
Lumbar spine		Chapter 4	Chapter 15	7%	1/10	6%
Scarring		Table 14.1	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2023] NSWPICMP 22

27 January 2023