Warrington v SummitCare Group Employment Pty Ltd
[2025] NSWPICMP 305
•5 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Warrington v SummitCare Group Employment Pty Ltd [2025] NSWPICMP 305 |
| APPELLANT: | Leanne Warrington |
| RESPONDENT: | SummitCare Group Employment Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Phillip Truskett |
| MEDICAL ASSESSOR: | Timothy Anderson |
| DATE OF DECISION: | 5 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the digestive system; Medical Assessor (MA) assessed no impairment from hernia because he said there was no work related injury; Held – Appeal Panel found error as the MA made a determination on causation which was not open to him to do; re-examination considered necessary; MAC revoked and new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
The worker Leanne Warrington (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Garvey, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
26 September 2024.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.
The appellant worker requested that she undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of that preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.
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.
Further medical examination
Medical Assessor Phillip Truskett of the Appeal Panel conducted an examination of the worker on 31 March 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
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
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 13/10/2022
· Body parts/systems referred: Digestive system
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Incisional hernia | October 13, 2022 | Chapter 16, page 78 | Chapter 6, page136, Table 6-9 | 0% | 0 | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
The assessment of 0% WPI was as a result of the Medical Assessor’s findings as follows:
“This case has several inconsistencies which are difficult to align with any work-related injury. In the first instance an abdominal incisional hernia was detected 6 years before the stipulated date of injury. Subsequently the Claimant underwent a midline incision for a total abdominal hysterectomy in 2018 and the gynaecologist noted the abdominal hernia diagnosed by CT scan preoperatively in 2017, but made no further mention of it when the Claimant came to operation in 2018. The GP diagnosed an incisional hernia in 2020 but did nothing about it for 2 years, and when the Claimant was seen by Professor Richard Hanney in 2022 he was quite convinced that there was an abdominal incisional hernia related to the midline hysterectomy incision. After he repaired the incisional hernia with mesh, a serious wound infection developed which was treated by debridement and VAC dressing. Subsequently the incisional hernia recurred which required a mesh hernioplasty by another Surgeon Dr F Khaleal and umbilical hernia was repaired at the same operation by open insertion of umbilical mesh.
In my view, there is no objective clinical evidence that this patient suffered from a work-related incisional hernia on 13 October 2022. In all likelihood the incisional hernia that was repaired by Professor Hanney and the recurrence treated by Dr F Khaleal were consequences of the midline abdominal hysterectomy incision, which in any circumstances would have had a 20% chance of recurrence in my experience
In any event the recurrent incisional hernia has been professionally repaired by Dr F Khaleal and there is no sign of recurrence, so 0% WPI is assessed.”
The worker appealed on the basis that the Medical Assessor had made a determination on causation when it was not open to him to do so.
The respondent did not file a notice of opposition to the appeal despite having had the opportunity to do so and the respondent advised the Personal Injury Commission (Commission) that it would not be filing a notice of opposition to the appeal.
In the circumstances the Appeal Panel considered that a re-examination was necessary and appointed Medical Assessor Phillip Truskett a member of the Appeal Panel who is also a Medical Assessor to undertake the re-examination.
Medical Assessor Truskett undertook the re-examination on 31 March 2025 and reported to the Appeal Panel as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W24582/24 |
Appellant: | Leanne Warrington |
Respondent: | SummitCare Group Employment Pty Ltd |
Examination Conducted By: | Philip Truskett (WC) |
Date of Examination: | 31 March 2025 |
The workers medical history, where it differs from previous records
Not applicable
Additional history since the original Medical Assessment Certificate was performed
Leanne Warrington is a 60 year old woman. At the time of her alleged injury she was employed by SummitCare Group as a kitchen hand. She had worked for this organisation from 2006 until the present working part time approximately 27 hours per week until 2022 and then 10 hours per week.
She stated that sometime in 2020 she noted a protrusion of her left lower abdomen. She attended her Local Medical Officer, Dr Aslam Shinwari of St Clair who advised her that it was a hernia and that it should be watched.
She continued working.
Sometime in mid-2022 she began to experience increasing pain and size in the hernia. She was again assessed by Dr Shinwari who referred her to Dr Richard Hanney (Surgeon).
Dr Hanney assessed her on 31 October 2022. He confirmed that she had a hernia and placed her on light duties. She subsequently underwent an open abdominal wall hernia repair performed by Dr Richard Hanney at Nepean Private Hospital on 8 November 2022 as a worker’s compensation case. She recalled that she was bruised in the region post-operatively but was reassured that this was not a problem by Dr Hanney. She was discharged home.
On 10 December 2022 she became unwell and called an ambulance. She was taken to Nepean Emergency Department and assessed by Dr Ahmed and advised that she had a severe infection. Apparently this was debrided and a VAC dressing was applied. She was hospitalised for approximately 9 days and had 4 further debridements. Apparently Dr Hanney was away at the time.
She was discharged with the VAC dressing in place to be managed by community nursing.
She was admitted to Mount Druitt Hospital in December 2022 under the care of Dr Hanney for further debridement and probably the mesh was removed.
This was around 23 December. She was subsequently followed up by Dr Hanney with her VAC dressing in place.
Apparently in early January she was due to be reviewed by Dr Hanney and Dr Ahmed on the same day. She was assessed by Dr Hanney initially who removed the VAC dressing and then told her to attend Dr Ahmed. She was sent apparently with an open wound. She was reviewed by Dr Ahmed who continued a VAC dressing for a further 3 weeks. Apparently she developed a further hernia in the region sometime in February 2023. She was reviewed by Dr Hanney who suggested, ‘We don’t want to be looking for anything else’. She was disappointed by this approach and felt dismissed. She subsequently attended Dr Khaleal of Penrith. She underwent a further CT scan on 19 April 2023 which confirmed the presence of a recurrent abdominal hernia. This was described as a superior para-umbilical hernia containing fat and a loop of small bowel.
She was subsequently admitted to Nepean Hospital under the care of Dr Khaleal in April/May 2023 and underwent laparoscopic repair of her recurrent hernia using mesh. This was performed laparoscopically as her previous scar, she was advised, was immature. He said he used a lot of mesh. She was hospitalised for 4 days with no complication. Following surgery she was off work for approximately 12 months and she apparently had a nervous breakdown during this time. She was admitted to Nepean during that time and has been under the care of Dr Anis, Psychiatrist of Penrith for some 12 months.
When she returned to work she was working 2 hours per day 1 day per week and in December 2024 she returned to full 2 days per week 5 hours per day performing duties of feeding and assisting during activities performing light duties. She worked Wednesdays and Fridays from 8.00am to 1.00pm until December 2023. She then returned to full time duties.
Current medication
She takes the following:
Cymbalta 30mg 1 daily for the past month (antidepressant).
Atenolol 50mg 2 daily for 2 years (beta blocker).
Gabapentin 100mg 2 daily for 4 months (pain modulator).
Rosuvastatin 10mg 1 daily (reduce cholesterol).
Panadol Osteo 4 daily (simple analgesic).
Endep 1 at night for 6 months (antidepressant).
She also attends a local doctor 5-6 times per year. She attends a Psychiatrist once a month.
Current Status
Abdominal wall
She will experience lower abdominal pain from time to time with pain with bending and stooping and activity with a pulling, burning sensation at the base of her scar and has a feeling like bees buzzing. She would score this as 6/10. It is made worse with activity.
She is unable to run or jog. She can walk for 20 minutes. She can sit for 30 minutes. She can stand for 30 minutes. She avoids hills and stairs. She can drive a motor vehicle. She can do housework but does this in stages. She can make a bed and vacuum but becomes exhausted. She does some light shopping. She can cook. She can do laundry but does not hang it out. She uses a dryer.
She cannot socialise. She can perform all acts of daily living. She does not play sport by choice. She used to mow her father's lawn but can no longer do so. She is unable to play with her grandchildren.
Social history
She was married from 1985 to 1989. She has a 35 year old daughter from this relationship. She was then married for 16 years that failed 3 years ago. She believes because of her hernia. She has a 24 year old son from this relationship. She lives in a villa for over 55s which is rented.
On examination
She was a cooperative woman who walked with a normal gait. She sat throughout the interview. She had blonde hair. She is right handed. She is 165cm tall and weighs 120kg. This provides her with a body mass index of 44.1kg/m2 which places her in the obesity class 3 of 3. She does not smoke or drink alcohol.
On examining her abdomen there is an 18cm lower abdominal scar consistent with caesarean sections in 1989 and 2000. She has a 2cm sub-umbilical incision consistent with laparoscopy. There was no recurrent herniation. There is no sensation over the region of the ilio-inguinal nerve. There is no evidence of herniation.
There is induration in the region of the lower abdomen and area of hernia repair.
Investigations
Ultrasound abdominal wall and CT performed by MD Imaging on 19 December 2022. There was extensive subcutaneous prominence in relation to the abdominal wall. In relation to the lower mid abdomen inferior to the umbilicus there is air filled cavity with small amount of fluid and surrounding inflammatory changes. There is associated secondary sinus formation.
Ultrasound abdominal wall dated 18 March 2024. There is an incisional hernia inferior to the umbilicus towards the left side around the scar with sac measuring 74x52x90mm at the neck measuring 30mm. There is also a small umbilical hernia.
CT abdominal wall performed by MD Imaging on 19 April 2023. Reported by Dr S. Connolly.
Superior per-iumbilical hernia containing fat. The hernial neck is 2.7cm.
Just inferior to the umbilicus there is a midline hernia containing fat and a loop of bowel herniating sac 4.2cm.
Evaluation of permanent impairment assessment and reasons.
My opinion in relation to permanent impairment whole person impairment 10%.
Explanation of my calculation
Reference is made to the Workcover Guide section 16.4 page 78 which states that following repair of a hernia of the abdominal wall there is residual persistent excessive induration at the site which is associated with significant discomfort. This should be assessed as Class I herniation AMA5, Table 6-9 page 136. This assessment should not be made if it had not persisted for more than 12 months.
Her symptoms have persisted for more than 12 months. Reference is made to AMA5 Table 6-9 page 136. This would place her in Class I with a 0-9% impairment. She does have significant discomfort in acts of daily living and domestic chores. It would be considered 9% whole person impairment.
Reference is made to Workcover Guide chapter 16, paragraph 16.2 which states where there is loss of sensation along the distribution of the ilio-inguinal nerve involving the upper anterior aspect of the thigh a 1% whole person impairment should be assessed as per 5.1 in the Guideline.
She does have loss of sensation along the distribution of the ilio-inguinal nerve. This would provide additional 1%.
Scarring
Reference is made to the Workcover Guide, Table 14-1 page 74 and AMA5 Table 8-2. She is conscious of the scar. It is a colour match. There are no trophic changes. There are some staple marks. There is some minor contour defects. No treatment was required and no adherence. She would qualify for 1% whole person impairment. However this scar is pre-existing (previous caesarean section) and would be fully deducted.
Her total whole person impairment is therefore 10%.
My brief comments regarding other medical opinions and findings submitted by the parties. Where applicable the reasons which my opinions differ.
Reference to the medicolegal report of Dr John Garvey. He assessed her as having a 0% whole person impairment on the basis that he did not believe her hernia was work related. It has been deemed by the Commission to be so. Therefore this is not a valid argument.
Reference is made to medicolegal report by Dr Kim Edwards dated 24 June 2024. He is of the view that she sustained an incisional hernia from the previous caesarean section. The hernia she developed appears to be independent of the caesarean section and relates to her abdominal wall. It is therefore considered work related. His opinion is not sustained. He also fully deducts her scar which I support.
I certify the impairment is permanent and the degree of permanent impairment is fully ascertainable.”
The Appeal panel considers that Medical Assessor Truskett has conducted a thorough re-examination taking a detailed history and undertaking a clinical assessment. The Appeal Panel adopts the findings and the report of Medical Assessor Truskett and agrees with impairment assessment of 10% WPI.
This means the MAC will be revoked and a new MAC issued as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Incisional hernia | October 13, 2022 | Chapter 16, page 78 | Chapter 6, page136, Table 6-9 | 10% | 0 | 10% |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
For these reasons, the Appeal Panel has determined that the MAC issued on
26 September 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: | W24582/24 |
Applicant: | Leanne Warrington |
Respondent: | SummitCare Group Employment 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 Medical Assessor John Garvey and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Incisional hernia | October 13, 2022 | Chapter 16, page 78 | Chapter 6, page136, Table 6-9 | 10% | 0 | 10% |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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