Windley v Dowpac Pty Ltd

[2025] NSWPICMP 407

DETERMINATION OF APPEAL PANEL
CITATION:	Windley v Dowpac Pty Ltd [2025] NSWPICMP 407
APPELLANT:	Gerard Neil Windley
RESPONDENT:	Dowpac Pty Limited
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	10 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of bilateral elbow fractures; reference to opinions of other examiners; State of New South Wales v Kaur considered; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 3 April 2025 Gerard Windley lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 10 March 2025.

2. Mr Windley relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out – being that the MAC contained a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Mr Windley was employed by Dowpac Pty Ltd (Dowpac) as a factory hand. On 15 February 2023 he was placing scrap metal onto a pallet when his feet became entangled in scrap metal lying on the floor. He lost his balance and fell, landing heavily on his hands and elbows. He suffered bilateral radial head fractures which were treated surgically by Dr Taylor. He returned to work, though subsequently ceased as a result of another medical condition.

2. Mr Windley claimed permanent impairment compensation based on a report dated 6 March 2024 by Dr Burrow, who assessed 15% whole person impairment (WPI). Dr Burrow’s assessment was comprised of 6% upper extremity impairment (UEI) for the range of motion of Mr Windley’s right elbow, 8% UEI for right radial head implant arthroplasty and 10% UEI for distal radioulnar dysfunction. Those assessments combine to 22% UEI or 13% WPI for the right upper extremity. Dr Burrow assessed 4% UEI or 2% WPI in respect of Mr Windley’s left elbow. He assessed 0% for scarring.

3. Dr Robinson saw Mr Windley on behalf of Dowpac and reported on 31 May 2024. He assessed 8% UEI or 5% WPI in respect of Mr Windley’s right upper extremity as a result of the arthroplasty. He made an assessment of 0% WPI in respect of the left upper extremity and assessed 1% WPI for scarring, resulting in 6% WPI.

4. Mr Windley’s solicitors made a claim for compensation for 15% WPI “of the left and right upper extremities”. The Application to Resolve a Dispute claimed compensation in respect of the right and left upper extremities and scarring. Neither the injury details part of the form, nor the claim, delineated the parts of the upper extremities relied on.

5. No dispute was required to be determined by the Personal Injury Commission. The referral requested that the Medical Assessor assess Mr Windley’s right and left upper extremities and scarring. It did not specify which components of the upper extremities were to be assessed.

6. The Medical Assessor assessed 6% WPI, comprised of 5% WPI for the right upper extremity and 0% for the left upper extremity. He allowed 1% WPI for scarring.

PRELIMINARY REVIEW

1. We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

2. As a result of that preliminary review, we determined that it was not necessary for Mr Windley to undergo a further medical examination because, while brief, the MAC does not disclose error.

EVIDENCE

1. We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.

2. The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but we have considered them.

2. In summary, Mr Windley submitted that the Medical Assessor made a demonstrable error in failing to provide adequate reasoning, in particular in failing to describe the tests or diagnostic criteria he relied on to support his comment that there was no radioulnar dysfunction. He referred to the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[1] and the requirement that the Medical Assessor’s path of reasoning be disclosed He noted the Medical Assessor’s “ambiguous” statement that the range of motion in his wrists was normal, when Dr Burrows found that it was reduced. He said that the Medical Assessor erred in not setting out the result of his assessment of the range of motion of his shoulders, wrists and fingers. Mr Windley sought re-examination.

   [1] [2013] HCA 43.

3. In reply, Dowpac submitted that Mr Windley’s submissions simply cavilled with a difference in clinical opinion between the Medical Assessor and the report relied on by Mr Windley. It said that the Medical Assessor had provided a sufficient explanation for his assessment of the right wrist. Dowpac said that there was no ambiguity in stating that the range of motion was normal, noting that Dr Robinson made a similar assessment.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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.

2. In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.

   [2] [2006] NSWCA 284.

3. In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.

   [3] [2021] NSWCA 304 at [26].

Medical evidence

1. In his statement dated 14 January 2025 Mr Windley described pain, discomfort, weakness and restricted range of motion in both elbows and both wrists, but particularly in the right. He said that he had difficulty carrying out his normal work and domestic duties, lifting more than light weights and performing personal hygiene tasks. His statement is at odds with the history in the reports of his treating doctors toward the end of his treatment in 2023.

2. Mr Windley was taken to Murwillumbah Hospital on 16 February 2023 and discharged on 22 February 2023. On 21 February, Dr Taylor sought urgent approval from Dowpac’s insurer for surgery to Mr Windley’s bilateral displaced radial head fractures. The surgery was undertaken at John Flynn Private Hospital on 23 February 2023. Both fractures were reduced and the right sided fracture was treated with a radial head replacement.

3. Dr Taylor examined Mr Windley on 23 March 2023, noting that he was recovering well. On 26 April 2023 he recorded that Mr Windley had some right sided wrist pain. He ordered an
   X-ray which did not show any fracture or “cause for concern” but said “he clearly has some pain in the wrist related to his injury.” He organised a radiocarpal joint injection.

4. On 7 June 2023 Dr Taylor noted that Mr Windley had near full range of motion of his elbow but had ongoing pain and limitation of his right wrist. Treatment options were discussed and physiotherapy planned. At that time, Mr Windley had returned to work on suitable duties.

5. On 19 July 2023 Dr Taylor wrote:

   “He describes having difficulty getting up off the floor when pushing and loading this wrist and also interestingly pulling himself into a forklift is difficult. He has a relatively long ulnar on this side and this may be due to shortening of his radius after his radial head replacement after his bilateral injuries. We have discussed the treatment options here and now organised a steroid injection and we will see him back in six weeks' time for further consideration of treatment options. We will consider a radial shortening and wrist arthroscopy if his ulnar sided symptoms persist.”

6. On 30 August 2023 Dr Taylor said that Mr Windley was “doing quite well” and had a full range of motion of both of his elbows and “really minor pain for his wrist and hand”. He had returned to full duties with some limitation of getting on and off a forklift. Dr Taylor proposed seeing Mr Windley again only if he had concerns and there are no other reports in the file.

7. The complaints with respect to Mr Windley’s right wrist are documented in the reports of his hand therapist, Mr Williams. In the final report dated 9 October 2023, Mr Williams recorded that Mr Windley had full movement of his fingers and wrist on both sides. His pain free grip strength was 39 kg on the right and 52 on the left. He had “some mild remaining ulna sided wrist pain on the right side, but is otherwise able to manage with his return to full duties at work.”

8. Dr Burrow saw Mr Windley on 27 February 2024 and reported on 6 March 2024. He recorded that Dr Taylor had discussed the possibility of wrist arthroscopy and radial shortening but no further interventional treatment had been discussed or planned. Dr Burrow said that Mr Windley had virtually no pain in his left elbow, though it was slightly stiff and weak but that the right elbow was quite painful. He set out the range of motion of Mr Windley’s elbows and said that the range of motion on the right was reduced. He set out the range of motion of Mr Windley’s wrists which appeared to be equal. He said that the right distal radioulnar joint was tender but not unstable. Summarising his opinion, Dr Burrows said:

   “The right elbow has persistent pain with pain referred into the wrist and difficulty in particular with supination and he is unable to toilet with that hand now.”

9. In respect of Mr Windley’s right wrist, Dr Burrow said:

   “Right wrist: While I could discern no frank distal radioulnar instability, there is distal radioulnar dysfunction and with reference to AMA-5, Table 16-18: There is maximum impairment of 20% upper extremity impairment. I think it is appropriate to reduce this by one half, resulting in 10% upper extremity impairment.”

10. Table 16-18 of AMA 5 is headed “Maximum Impairment Values for the Digits, Hand, Wrist, Elbow, and Shoulder, Due to Disorders of Specific Joints or Units.” The table provides a maximum impairment value for a disorder of the distal radioulnar joint of 20% UEI.

11. In respect of “wrist movements”, without distinguishing between right and left, Dr Burrow measured 60° of dorsiflexion and 60° of volar flexion, the full extent of normal range of motion under Figure 16-28 of AMA 5. He observed 15° of radial deviation and 25° of ulnar deviation, which represents a minor loss of the range of motion. If both wrists were the same, any loss on the right is not compensable.[4]

    [4] Guidelines paragraph 2.20.

12. Contrary to Mr Windley’s submissions, Dr Burrow did base his assessment on the loss of the range of motion of Mr Windley’s right wrist. At an earlier point in his report, he said the wrist pain was referred from the elbow. He also did not describe any pathology in the wrist, referring only to pain. He said that the distal radioulnar joint was tender but not unstable. Pain or disability is not the same as impairment as measured by AMA 5 and the Guidelines.

13. Mr Windley saw Dr Robinson at the request of Dowpac. His report is dated 31 May 2024. He obtained a history of pain in Mr Windley’s elbows only. He set out the results of his examination in detail, describing the range of motion in each elbow as 0° to 140° of flexion. He described all other movements as normal, in particular, examination of both wrists. There was mild tenderness of compression of the radial head against the capitellum of the humerus – i.e. in the region of the elbow. Dr Robinson said that he believed that Mr Windley’s range of movement had improved since Dr Burrows’ examination two months before and each elbow now had normal function.

The MAC

1. It must be said that the MAC is very brief. Ideally, the Medical Assessor would have explained his reasoning in more detail. However, a careful reading of it shows that it provides the basis for his opinion and does not disclose error.

2. The Medical Assessor recorded a brief summary of the injury and treatment. He noted that Mr Windley was not having active treatment or taking medication. Describing Mr Windley’s symptoms, the Medical Assessor said:

   “Mr Windley notes if he puts pressure on his hand and forces weight onto his elbow, he will have pain bilaterally. He has a subjective sensation of weakness, particularly with grip and twisting. Otherwise, he has had a good return of movement in his arms with limited day to day pain. He does note some difficulty wiping his backside toileting.”

3. Setting out his findings on examination the Medical Assessor said:

   “On examination he was a well looking man in no obvious distress. There were surgical scars over both elbows, 7cm laterally over the right elbow and 9cm laterally over the left elbow.

   Range of motion in the elbows was from 0° to 135° bilaterally. Pronation and supination were to 80° bilaterally. Mr Windley exhibited normal range of motion in his shoulders, wrists and fingers. The upper limbs were distally neurovascular intact. The surgical wounds were well healed, without complication. There was some minor colour change but no contour deficit or trophic change.”

4. Explaining his calculations the Medical Assessor said:

   “Range of motion in the elbows was normal and symmetrical. Impairment was not assessable for restricted range of motion according to AMA 5 page 472 16.34, page 474 16.37. AMA 5 page 506, 16.27 assesses 8% upper extremity impairment for implant arthroplasty of the radial head. According to AMA 5 page 439 16.3, this converts to 5% whole person impairment.

   According to SIRA page 74, Table 14.1 I assess 1% for scarring / TEMSKI on the basis of colour mismatch.”

5. Commenting on the other reports in the file the Medical Assessor said:

   “With respect to the report by Dr Burrow dated 6 March 2024, I found significantly greater range of motion (in fact, normal) and have not assessed impairment for restricted movement. I agree with the assessment of 8% upper extremity impairment for the implant arthroplasty of the radial head. There was no evidence of distal radioulnar joint dysfunction at the time of my assessment.

   With respect to the left elbow, again there was no restriction in range of motion, and hence I have not assessed impairment for it. I have assessed 1% rather than 0% for scarring / TEMSKI.

   With respect to the report by Dr Robinson dated 31 May 2024, I found similar findings on examination. I am in agreement impairment is not assessable for restricted range of motion in either elbow. I agree with the assessment of 5% whole person impairment for the radial head replacement on the right. I agree with assessment of 1% whole person impairment for scarring / TEMSKI.”

Consideration

1. The Medical Assessor was required to assess Mr Windley as he presented on the day of the examination[5] and to prepare a report based on his own clinical findings, using his own clinical judgement. If the Medical Assessor observed a normal range of motion, it was open to him to state that it was normal, without setting out every measurement.

   [5] Guidelines paragraph 1.6.

2. Mr Windley’s submissions focussed on the differences between his assessment and that of Dr Burrow, which took place a year before. The Medical Assessor is not required to adopt or choose between the other opinions in the file and is required to form his or her own opinion. In State of New South Wales (NSW Department of Education) v Kaur[6] Campbell J said:

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

   ‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

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

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

   [6] [2016] NSWSC 346.

3. The Medical Assessor is directed by the standard MAC template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why the assessment may differ, not because the Medical Assessor is required to agree with or choose between them. A difference of opinion on the basis of examination on a different day does not constitute error.

4. Dr Burrow examined Mr Windley only about six months after he was discharged from Dr Taylor’s care. The Medical Assessor examined Mr Windley a year after Dr Burrow and it is expected that some further improvement would occur in that period.

1. While the MAC is short, the Medical Assessor’s path of reasoning can be clearly discerned. Even though the referral did not set out the components of the upper extremities that he was required to assess, he was alert to the need to test for radioulnar joint dysfunction. He said that he did not observe it. There is no error in that statement.

2. For these reasons, we have determined that the MAC issued on 10 March 2025 should be confirmed.