Wang v CCZ Plasterboard Pty Ltd
[2025] NSWPICMP 386
•3 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wang v CCZ Plasterboard Pty Ltd [2025] NSWPICMP 386 |
| APPELLANT: | Zhaojun Wang |
| RESPONDENT: | CCZ Plasterboard Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 3 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor (MA) incorrectly applied the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021, took into account irrelevant considerations, failed to afford procedural fairness, and failed to give adequate reasons; Held – no errors made; no foundation to the appellant’s submissions; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 March 2025 Zhaojun Wang (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Gorman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
17 February 2025.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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 this appeal, for reasons which will become apparent below.
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 submits that the Medical Assessor erred as follows:
(a) the Medical Assessor incorrectly applied the Guidelines;
(b) the Medical Assessor took into account irrelevant considerations;
(c) the Medical Assessor failed to afford procedural fairness, and
(d) the Medical Assessor failed to give adequate reasons.
In reply, the respondent submits that no errors were made.
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.
The appellant was referred to the Medical Assessor for assessment of WPI in respect of an injury to the left lower extremity resulting from a date of injury of 16 May 2022.
The Medical Assessor obtained the following history:
”Mr Wang suffered an injury in a fall at a workplace which was a two storey freestanding house, on 16 May 2022. He was working on the upper level of the house and was doing wall and ceiling Gyprocking. He was attempting to get onto a ladder when he fell an landed on to the ground level of the house, falling into a “void” where the staircase was to go.
He landed vertically on his left foot and ankle and was aware of an immediate onset of severe pain. He could not weight-bear on the left heel.
His boss drove him to Westmead Hospital where he was assessed. He was admitted because x-rays confirmed a comminuted intraarticular fracture involving the subtalar joint. He was admitted and kept overnight and the following morning he underwent an open reduction internal fixation of the left foot and ankle through a wound on the lateral side of the calcaneus. A multi-hole plate and screws were inserted and a good reconstruction of the articular surface was achieved although there was still some irregularity in a later CT scan.
He was kept overnight for another two or three days and then discharged home non-weigh-tbearing on crutches with his foot initially in a plaster cast and then in a boot. He remained non-weightbearing for approximately four months. Progress x-rays showed that there was steady progress and the fractures were healing.
On 08 November 2022 he was readmitted to hospital for removal of the plates and screws and at that stage a subtalar arthrodesis was undertaken by the insertion of two canulated screws through the heel across the subtalar joint with localised bone graft taken from the local area.”
The Medical Assessor then set out details of Mr Pearce’s present treatment before noting present symptoms as follows:
“He still has pain around the lateral side of the foot, around the scar.
He no longer has any back pain.
There is no swelling of the foot.
He can walk for one hour. During that time the pain builds up. He finds it very difficult to walk on uneven ground or on the sand at the beach.
He still has certification indicating that he has no current capacity for work.”
The Medical Assessor then set out details of the impact of his injury on his social activities and ADL’s and said:
“Mr Wang was born in China and came to Australia in 2017. He lives in a unit with a friend. He has one daughter and one son in China. He smokes around 5 cigarettes per day and does not drink alcohol. He manages cleaning, cooking, shopping and housework.”
Findings on examination were reported as follows:
“He was a well looking man with a height of 177cm and a weight of 65 kg.
He walked with a mild antalgic gait favouring the left side.
There was a 7cm widened scar over the lateral ankle which was pigmented but not raised. It was sensitive…
The range of movement in the ankle and hindfoot were restricted on the left…
Power, sensation and reflexes in the lower limbs was normal.”
He then noted the radiological material he had before summarising the injuries and diagnoses as follows: “Mr Wang has had a comminuted left calcaneal fracture at work requiring open reduction and internal fixation with a later subtalar fusion.”
The Medical Assessor assessed 8% WPI. He found 10% lower extremity impairment for the subtalar fusion, and 7% for the lack of ankle extension, giving a total of 17% lower extremity impairment, which equates to 7% WPI. He then added 1% for scarring, giving a final total of 8% WPI.
He then turned to consider the other medical opinions and evidence and said:
“I reviewed the report of Dr James Bodel dated 4 August 2023. Dr Bodel assessed a lumbar spine impairment. Mr Wang no longer has back pain and has no impairment. Dr Bodel found greater restriction in plantar flexion on the left than I found. The other movements of the ankle and hindfoot were similar. I have assigned 1% on the TEMSKI scale as did Dr Bodel.
I reviewed the report of Dr Todd Gothelf dated 6 November 2023. My findings were similar to his findings.”
The appellant’s submissions
These are as follows:
(a) the Medical Assessor did not provide detailed reasons as to how he made the determination that the appellant warranted 1% WPI in respect of scarring;
(b) the MAC stated that the relevant body part referred was the left lower extremity. However, throughout the MAC, the Medical Assessor makes reference to the appellant’s back/lumbar spine;
(c) further, the Medical Assessor also relevantly stated the following: “I reviewed the report of Dr James Bodel dated 4 August 2023. Dr Bodel assessed a lumbar spine impairment. Mr Wang no longer has back pain and has no impairment”;
(d) despite only being referred the left lower extremity, the Medical Assessor erred by making a determination in respect of the lumbar spine and took into account irrelevant considerations;
(e) [he] was denied procedural fairness when the Medical Assessor made a determination in respect of the lumbar spine;
(f) the Medical Assessor was only referred the left lower extremity, and despite this, made a significant determination, that the lumbar spine had no impairment, with little to no reasoning provided;
(g) the Medical Assessor determined that the appellant had reached maximum medical improvement. However, the Medical Assessor did not provide reasons in making that determination and it is unclear how the Medical Assessor reached this conclusion, and
(h) the Medical Assessor did not provide a basis for determining maximum medical improvement and, as a minimum legal standard, did not provide reasons.
As indicated earlier, the respondent submitted that no errors were made.
Discussion
Frankly, we are at a loss to understand many of the appellant’s submissions.
The appellant suggests that the Medical Assessor did not provide adequate reasons for awarding 1% for scarring based on the TEMSKI scale. The Medical Assessor did note that the scar was pigmented and sensitive, but not raised, and in addition there was a photograph attached.
The Medical Assessor thus had ample evidence to assist him in making his assessment.
We agree that the Medical Assessor could have added additional criteria in line with the Guidelines, but this is not fatal to his decision.
Although not bound by the opinions of other doctors, we also note that Dr Bodel assessed 1% for scarring as did Dr Gothelf.
When addressing the reasons for assessment of scarring, the Medical Assessor refers to his findings on examination and also indicated that there were no suture marks.
The appellant does not suggest what figure would be appropriate or address the requirements of the TEMSKI but merely complains that the Medical Assessor did not provide adequate reasons for his assessment.
As the respondent noted:
“The Medical Assessor carefully considered the criteria (in Table 14.1) and provided sufficient reasons to adequately confirm why the category was chosen over other categories. This is in support of the requirement in the Guidelines in Cl 14.8 to the effect that the assessment ‘should meet most, but does not need to meet all, of the criteria within an impairment category’ for a best fit to be obtained, and that reasons should be provided.”
We agree with those observations.
In our view, the Medical Assessor’s reasons were adequate in the context of the task he was asked to carry out.
Turning next to the submission that the Medical Assessor took into account irrelevant considerations, we note that the Medical Assessor did indicate that ‘Mr Wang no longer has back pain and has no impairment’.
The appellant has suggested that the Medical Assessor has erred by making a determination in relation to the lumbar spine, noting that only the left lower extremity was referred for assessment.
However, Dr Gorman has specifically made this statement to refute Dr Bodel’s assessment of the lumbar spine, noting that Mr Wang no longer has back pain.
As the respondent (correctly in our view) pointed out:
“the references to the lumbar spine played no role in the ultimate assessment of impairment. The comments made by the Medical Assessor were ancillary to, and did not form part of, the assessment of permanent impairment.”
In theory the Medical Assessor did not need to address this issue, but in our view this was done simply to address the opinion of Dr Bodel.
We can see no error in his decision to address this.
We make the same comments with respect to the submission that the Medical Assessor failed to accord procedural fairness.
The appellant once again refers to the fact that the Medical Assessor made a determination in respect of the lumbar spine and that the appellant was denied procedural fairness because of this.
For the same reasons set out above, we reject this submission.
“Maximum Medical Improvement” is referred to in cl1.6 of the Guidelines as follows:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
• whether the condition has reached Maximum Medical Improvement (MMI)
• whether the claimant’s compensable injury/condition has resulted in an impairment
• whether the resultant impairment is permanent
• the degree of permanent impairment that results from the injury
• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.”
In response to the question “Have all body part/s stabilised/reached maximum medical improvement”, the Medical Assessor said “Yes.”
In short, he concluded that the degree of permanent impairment of the appellant is unlikely to improve further such that he had attained maximum medical improvement, meaning
Mr Wang’s condition “is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”Clause 1.5 of the Guidelines states: “The Guidelines are intended to assist a suitably qualified and experienced medical practitioner in assessing a claimant’s degree of permanent impairment.”
As a qualified and experienced Medical Assessor, the Medical Assessor was entitled to reach this conclusion following his assessment of Mr Wang.
For these reasons, the Appeal Panel has determined that the MAC issued on
17 February 2025 should be confirmed.
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