Wollongong City Council v Needham

DETERMINATION OF APPEAL PANEL
CITATION:	Wollongong City Council v Needham [2023] NSWPICMP 414
APPELLANT:	Wollongong City Council
RESPONDENT:	Tracey Jane Needham
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	25 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Matter referred for assessment of left elbow injury for impairment of the upper extremity after arthroplasty of the elbow, and assessment of upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination; no claim made for ulnar nerve injury which was assessed by Medical Assessor (MA); Held – MA made a demonstrable error in assessing impairment that was not part of the dispute identified by the parties; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 June 2023 Wollongong City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
11 May 2023.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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).

RELEVANT FACTUAL BACKGROUND

The respondent (Ms Needham) sustained an injury to her left elbow and right ankle in the course of her employment on 26 January 2020.
The matter was referred to the Medical Assessor, Dr Yiu-Key Ho, on 21 April 2023 for assessment of whole person impairment (WPI) of the left upper extremity, right lower extremity and scarring (TEMSKI) with the date of injury being 26 January 2020.
The Medical Assessor examined Ms Needham on 8 May 2023 and assessed 3% WPI of the right lower extremity and 14% WPI of the left upper extremity/TEMSKI. The combined total was 17% WPI as a result of the injury on 26 January 2020.

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 did not request that Ms Needham be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Needham to undergo a further medical examination because there was sufficient evidence on which to make a 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.
The appellant’s submissions included the following:
(a)    The Medical Assessor made a demonstrable error in:
(i)assessing Ms Needham for the degree of impairment resulting from injury to the ‘ulnar nerve’, and
(ii)to the extent the Medical Assessor was entitled to assess the ulnar nerve, he fell into error in failing to provide proper reasons.
(b) Ms Needham, in a letter dated 21 November 2022, made a claim under s 66 of the Workers Compensation Act 1987 (the 1987 Act) as follows:
“Date of injury - 26 January 2020
Body parts/systems claimed –
Upper extremity – left elbow
Lower extremity – right ankle
TEMSKI”
16% - $37,180.
No injury or condition affecting the ulnar nerve was alleged.
(c)    Ms Needham relied upon the report of Dr Drew Dixon dated 26 October 2021. In that report, Dr Dixon diagnosed an elbow injury as a healed fracture of the left olecranon and proximal ulna with radial head replacement and post-traumatic stiffness. In his supplementary report, Dr Dixon assessed the impairment of the left elbow, by reference to Table 16-27 and Pie Charts 16-34 and 16-37. Dr Dixon did not assess the ulnar nerve, nor did he provide any diagnosis of that condition.
(d)    In response to that claim, Ms Needham was examined at the request of the appellant by Dr Rimmer. In a report dated 24 January 2023, Dr Rimmer similarly diagnosed the injury to the left elbow as being a displaced left olecranon fracture and left radial head fracture. He assessed the degree of impairment in respect of that injury, by reference to Table 16-34/16.37 of the AMA 5 Guides. Dr Rimmer did not diagnose, nor assess, any condition affecting the ulnar nerve.
(e)    Ms Needham then filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission). Under the heading ‘Injury Details’, she alleged that the injury suffered was as follows “right ankle, facial bruising, broken nose and left elbow, and sustained consequential injuries to her left hand and back”. Under the heading ‘Permanent Impairment/Pain and Suffering’ the body systems claimed were recorded as “Left upper extremity,” “right upper extremity” and “TEMSKI/Scarring”.
(f)    There was no dispute that Ms Needham had injured her left elbow and right ankle in the subject incident. Accordingly, the matter was referred by the Commission directly to a Medical Assessor for assessment of the degree of permanent impairment. The Referral issued on 21 April 2023, recorded the following: “Body part/s referred: Left Upper Extremity, Right Lower Extremity, Scarring (TEMSKI)”.
(g)    In the Medical Assessment Certificate (MAC) the Medical Assessor took a history of the left elbow and right ankle injuries sustained on 26 January 2020. On page 2, the Medical Assessor noted there was numbness on the ulnar side of the forearm. On page 3, the Medical Assessor noted that examination revealed findings consistent with a “ulnar nerve palsy”. Under the heading “summary of injuries and diagnoses” the Medical Assessor noted a fracture dislocation of the left elbow and right ankle, with residual problems in the left elbow. In assessing permanent impairment of the left elbow, the Medical Assessor applied Tables 16-34 and 16-37 (ROM) and 16-27 for radial head replacement. However, the Medical Assessor also assessed Ms Needham under Table 16-15 for her “ulnar nerve problem.” He assessed 8% upper extremity impairment for that condition.
(h)    In explaining his assessment, the Medical Assessor noted that his opinion was “different” to Dr Rimmer as he thought there was an ulnar nerve neuropathy. He also acknowledged that there was a difference in his assessment compared with Dr Dixon, as he found there to be a “problem with the ulnar nerve”.
(i) The Medical Assessor fell into demonstrable error in assessing Ms Needham for injury to the ulnar nerve. Ms Needham had not, at any stage, framed her claim under s 66 as including any injury affecting the ulnar nerve.
(j)    The Medical Assessor assessed the worker for an injury/condition of the ulnar nerve which was not the subject of a claim made by Ms Needham, had not been diagnosed or assessed by the respective independent experts, and had not been pleaded in the ARD.
(k)    The appellant conceded that the referral to the Medical Assessor referred generically to the ‘left upper extremity’ so one might argue that his assessment of the ulnar nerve, which forms part of the left upper extremity, was within the ambit of that referral. However, the referral must be viewed in the context of the claim that had been made by Ms Needham. The reference to ‘Left Upper Extremity’ was plainly a reference to the fracture to the left elbow, as that is the only injury she had claimed.
(l)    In Skates v Hills Industries Ltd [2021] NSWCA 142), Adamson J held at [51]: “The evident purpose of s 325(1) is not only to provide an AMS with the parameters of his or her task but also to provide procedural fairness to the parties.”
(m)     On appeal to the Court of Appeal (Skates v Hills Industries Ltd [2021] NSWCA 142 Basten JA, with whom Leeming JA agreed, held at [29-30]:
“Medical reports enclosed with the application referred to specific injuries of the left wrist and hand; it was these injuries to which the insurer admitted liability and as to which a dispute arose concerning the precise extent of the injury. The insurer offered to accept a degree of permanent impairment calculated at 12%; the applicant sought a payment calculated by reference to 18%. These figures were supported by medical reports. As the primary judge found, this material defined the proper scope of the referral.”
(n)    At [50], Leeming JA confirmed “the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims”.
(o)    The correct position is most succinctly described in the final determination of the Court, Basten and Leeming JA (McCallum JA dissenting) at [2] as follows:
“The applicant’s ‘application to resolve a dispute’ of 8 August 2017, together with the accompanying medical reports, identified a dispute concerning the degree of permanent impairment caused by the injury to the applicant’s left wrist, ring finger and scarring. The purpose of the statutory regime was to resolve the medical dispute identified by the parties’ competing claims. The medical assessment was limited to the dispute so identified: [27]-[30]; [45]-[48].”
(p)    On no view of the documentation before the Commission, could it be argued that Ms Needham had claimed any injury, or impairment, in respect of the ulnar nerve. The medical dispute between the parties was crystallised by the reports of
Dr Dixon and Dr Rimmer, which defined the scope of the medical dispute to be resolved by the Medical Assessor. This was limited to the fractured left elbow, fractured right ankle, and scarring.
(q)    In assessing the ulnar nerve, the Medical Assessor exceeded the terms of that dispute, thereby failing into jurisdictional error (Skates). Moreover, a clear denial of procedural fairness has arisen. The Medical Assessor took it upon himself to assess the ulnar nerve, in circumstances where that injury/condition had not been the subject of any independent expert opinion, no assessment of impairment, and no claim by Ms Needham. The appellant was therefore deprived of the opportunity to seek opinion from Dr Rimmer on that issue.
(r)    In assessing the ulnar nerve in those circumstances, the Medical Assessor fell into demonstrable error by:
(i)acting outside the scope of the referral (exceeding jurisdiction), in that the referral must be viewed in the context of the claim that had been submitted by Ms Needham; or
(ii)denying the appellant procedural fairness in assessing a condition not the subject of evidence or prior investigation by the appellant.
(s)    In any event, the Medical Assessor fell into demonstrable error in failing to give reasons for ascribing any impairment present in the ulnar nerve to the injury on 26 January 2020.
(t)    The Medical Assessor simply identified a condition in the ulnar nerve, and subsequently ascribed the resulting impairment assessed to the subject injury. In relation to the diagnosis on page 3, the Medical Assessor made no reference to the ulnar nerve at all. On page 4, he simply stated “I think there is stiffness in the ankle as well as the ulnar nerve neuropathy which explains the assessment of mine being significantly higher than his (Dr Rimmer)”. He then stated “…there is a problem with the ulnar nerve…”
(u)    Nowhere in the MAC did the Medical Assessor properly address the question of causation, nor provide any reasons for ascribing the ulnar nerve condition to the subject injury. In certain cases, where liability for a certain injury has been conceded or determined prior to the referral, that obligation may arguably be of lesser significance. However, in this case, where neither independent expert had diagnosed an ulnar nerve condition, it was incumbent on the Medical Assessor to provide reasons for any conclusion that there was an ulnar nerve condition diagnosed and on what basis that condition results from the subject injury.
(v)    In Jones v The Registrar WCC [2010] NSWSC 481, James J held [30] that: “It was not disputed that a statutory obligation to give reasons for an assessment is imposed on an approved medical specialist by s 325(2) of the Act”. The Medical Assessor provided no reasons, and certainly no adequate reasons, supporting his decision to assess the ulnar nerve, and to attribute that impairment to the subject injury. Aside from remarking that he found an ‘ulnar nerve problem’ which neither Dr Rimmer nor Dr Dixon did, no actual explanation was provided as to on what basis that condition results from the subject injury. Whilst the Medical Assessor explained the findings on examination which he concluded supported a conclusion of ulnar nerve palsy, nowhere in the MAC did the Medical Assessor attempt to explain why that condition has resulted from the subject injury. That failure was amplified in a case where none of the experts, including the worker’s own independent expert, had diagnosed or assessed that condition.
(w)   The Medical Assessor failed to discharge his statutory obligation to give reasons for his assessment, thereby constituting demonstrable error. The MAC should be revoked, and a new MAC issued by the Appeal Panel, removing the assessment provided for the ulnar nerve (8% upper extremity impairment). The balance of the MAC may be confirmed.
Ms Needham’s submissions included the following:
(a)    Ms Needham sought 16% WPI for injuries consisting of 9% WPI left upper extremity, 2% WPI TEMSKI scarring and 5% WPI right lower extremity based on the medical evidence prepared by Dr Drew Dixon in his two medical reports dated 26 October 2021.
(b)    Under the heading "Summary of Injuries and Diagnoses" Dr Drew Dixon, in his medical report dated 26 October 2021, noted the following: “Healed fracture of her left olecranon and proximal ulna with hardware remaining in situ with radial head replacement (implant arthroplasty) with post-traumatic stiffness”. In his supplementary medical report dated 26 October 2021, he noted the following: "That for the left elbow where she has had implant arthroplasty is from Table 16-27, AMA V, Page 506, 8% upper extremity impairment. That for the post traumatic stiffness of her left elbow is from Pie charts 16-34 and 16-37, AMA V, Pages 472-47 4, 7% upper extremity impairment. This gives a total from the Combined Values Chart of 14% upper extremity impairment which equates to 9% Whole Person Impairment."
(c)    The appellant had Ms Needham examined by Dr Stephen Rimmer on 24 January 2023. Dr Rimmer noted the following injury: "She describes slipping and falling at work, sustaining the following injuries: 1. Left elbow (displaced fracture, olecranon and displaced fracture left radial head)". With regards to the left elbow, Dr Rimmer assessed 7% Upper Extremity Impairment which was 4% Whole Person Impairment". Dr Rimmer only diagnosed Pie Charts 16-34 and Pie Charts 16-37.
(d)    In the MAC dated 11 May 2023, the Medical Assessor under "Present Symptoms" noted the following: "The main problem is the left elbow which remains stiff, sore and weak. There is numbness over the little finger and on the ulnar side of the forearm, going to the elbow, if she rests on the elbow for a while. The hand is not as strong, she has trouble driving for a long period of time and lifting anything above the shoulder level as it is not strong enough."
(e)    This was similar to the examination as found by Dr Drew Dixon in his medical report dated 26 October 2021 under the heading "Examination" and the second paragraph where Dr Dixon noted intermittent paraesthesia in the index, middle and ring fingers of her left hand. This was not commented on by Dr Rimmer.
(f)    The Medical Assessor when dealing with the left elbow, noted as follows: "For the elbow, Figure 16-34, extension lag of 40, is equal to 4% upper limb impairment, flexion to 120 is 2%. Using Figure 16-37, supination of 60 is equal to 1%. Pronation of 80 is 0% so altogether, there is 7% upper limb impairment. Using Table 16-27, radial head replacement is 8% upper limb impairment. In relation to the ulnar nerve problem, using Table 16-15, the maximum upper limb impairment of combined motor and sensory deficit of ulnar nerve below the mid-forearm level is 40%".
(g)    A Medical Assessor was required to use his expertise and clinical experience to reach an independent decision as to the matters referred to him. His task was to make a determination that is in accordance with the whole of the medical evidence and his clinical findings. The Medical Assessor was not obliged to accept any medical opinion that has been put before him and his reasons may not be extensive or detailed. The Medical Assessor, in the present case, had given extensive and clear reasons for his decision.
(h)    The Medical Assessor was right to diagnose that Ms Needham was entitled to an assessment in relation to the ulnar nerve problems in accordance with Table 16-15. There was no agreement between the appellant and Ms Needham that her injury included the pathology, nor had the Commission made a determination that this pathology formed part of Ms Needham’s injury. Given this fact, the Medical Assessor had power to consider whether this pathology resulted from
Ms Needham's injury and had power to make a finding that it was. (See Binah v Carter Holt Harvey Wood Products Aust Pty Ltd (2014) NSW CA 264.)
(i)    Therefore, the Medical Assessor did not make an error and the Medical Assessor was required to exercise his own clinical judgment and a difference of opinion did not constitute a demonstrable error. In Mahenthirarasa v State Rail Authority of New South Wales & Ors (2007) NSW SC 22, Malpass AJ considered the second reading speech referring to s 327 of the 1998 Act and made the comment that: "a demonstrable error would essentially be an error for which there is no information or material to support the finding made that, rather than a difference of opinion".
(j)    Ms Needham disagreed with the appellant's submission that the Medical Assessor could never assess the degree of permanent impairment outside a so-called "range" between the assessments of Dr Dixon and Dr Rimmer. The Medical Assessor had to rely on his own clinical findings at his examination and if there was evidence of an assessment using Table 16-15, the Medical Assessor is entitled to calculate the level of WPI.
(k)    In the Supreme Court as noted in Glenn William Parker v Select Civil Pty Limited (2018) NSW SC 140, the Court held in Ferguson v State of New South Wales (2017) NSW SC 887 at (23), Campbell J sites with approval NSW Police Force v Daniel Walk (2012) NSW WCCMA 36 (Walk) where it is stated at (33): " ... the pre-eminence of the clinical observations cannot be understated. The Judgement as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the Applicant face to face ... "
(l)    The appellant’s submissions cavilled with the findings of the Medical Assessor and there was no error discernible on the face of the Certificate, and the correct assessment criteria were addressed. There was nothing to rebut the presumption of regularity.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

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, below and in the body of this decision.
Under “History relating to the injury”, the Medical Assessor wrote:
“…The injury happened on Australia Day, 26 January 2020 when she was the Team Leader of the event co-ordination and suffered a fall, in the early morning, of that day. She had a fracture dislocation of the left elbow which includes comminuted fracture of the proximal radius and fracture of the olecranon, together with a ligament injury and a minimally displaced medial malleolus fracture on the right ankle. She was under the care of Dr Stuart Jansen for the left elbow and an operation was done on 31 January 2020 with the internal fixation of the olecranon, radial head replacement and ligament reconstruction. While for the right ankle, she was operated on by Dr Meghan Dares on 3 February 2020 with percutaneous screw fixation of the undisplaced medial malleolus fracture. She received appropriate conservative treatment, however, due to the residual problems, she was not able to return to her previous positions so she was put on suitable duties and now she is working full-time but as a Booking Officer instead. She has trouble lifting 2kg on the left upper limb because of the significant elbow problem so she cannot work in the event team anymore.”
Under “Present symptoms”, the Medical Assessor wrote:
“The main problem is the left elbow which remains stiff, sore and weak. There is numbness over the little finger and on the ulnar side of the forearm, going to the elbow, if she rests on the elbow for a while. The hand is not as strong, she has trouble driving for a long period of time and lifting anything above the shoulder level as it is not strong enough. The right ankle is not too bad, there is some residual pain in the postero-lateral aspect associated with mild stiffness and swelling. She can still walk for an hour but if she walks for too long, the ankle will hurt.”
Under “Social Activities/ADL”, the Medical Assessor wrote:
“She has trouble using the left arm because the elbow is stiff, the hand is weak, and especially lifting anything above shoulder level or reaching out is difficult.”
Under “Findings on physical examination” the Medical Assessor wrote:
“There is a big surgical scar of about 15cm in the left elbow. The scar is obvious and there is positive tinel signs when tapping on the cubital tunnel area, radiating to the little finger. The elbow has a range of movement 40-120˚, while the normal side is 0-140˚. Pronation is 80˚, full range, supination is down to 60˚. There is obvious muscle wasting of the first dorsal interossei which is supplied by the ulnar nerve and it is weak. Tapping on the ulnar nerve in cubital tunnel is creating tinel sign, shifting to the little fingers and Froment’s sign is positive which indicates ulnar nerve palsy. The ankle scar is not obvious because there are only 2 small percutaneous cuts to put in the screws for fixation percutaneously without open reduction but the ankle has some loss of movement, extension is 5˚, flexion is 20˚, inversion is normal at 20˚, eversion is 10˚ and there is some swelling in the postero-lateral aspect of the ankle with some tenderness around the tip of the fibula.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the Medical Assessor wrote:
“Tracey Jayne Needham had a fall, ending up with a nasty fracture dislocation of the left elbow and undisplaced fracture of the right ankle, with appropriate surgery being done, she ended up with residual problems, mainly with the left elbow.”
Under “Reasons for assessment” the Medical Assessor wrote:
“To assess the whole person impairment of the right ankle, using Table 17-11, extension is only 5˚ so it will attract 3% whole person impairment and there is no whole person impairment relating to the hind-foot movement. For the elbow, Figure 16-34, extension lag of 40˚, is equal to 4% upper limb impairment, flexion to 120˚ is 2%. Using Figure 16-37, supination of 60˚ is equal to 1%. Pronation of 80˚ is 0% so altogether, there is 7% upper limb impairment. Using Table 16-27, radial head replacement is 8% upper limb impairment. In relation to the ulnar nerve problem, using Table 16-15, the maximum upper limb impairment of combined motor and sensory deficit of ulnar nerve below the mid-forearm level is 40%. Using Table 16-11 and 16-10, I assess her to be Grade 4 power and Grade 4 sensory loss which I will assess as 20% loss which will give rise to 8% upper limb impairment. When this is combined with 7% from the stiffness, 8% for the radial head replacement, it will give rise to 21% upper limb impairment which will be equal to 13% whole person impairment while the ankle is 3%. For the scarring, using TEMSKI scale, I would give 1% whole person impairment so altogether it will be 17% whole person impairment.”
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“My opinion is different from Dr Rimmer as I think there is stiffness in the ankle as well as ulnar nerve neuropathy which explains the assessment of mine being significantly higher than his. Even when compared with Dr Dickson, we came to more or less similar figures, but the difference between ours is that I gave a lower assessment for scarring and I don’t think there is any loss of movement in the subtalar joint but there is a problem with the ulnar nerve which gives rise to a similar assessment at the end.”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Assessment of impairment from ulnar nerve condition

The appellant submitted that the Medical Assessor made a demonstrable error in assessing a degree of impairment resulting from injury to the ‘ulnar nerve’ condition. Further, the appellant submitted that to the extent the Medical Assessor was entitled to assess the ulnar nerve, he fell into error in failing to provide proper reasons.

Background to the claim

By letter dated 21 November 2022, Ms Needham made a WPI claim based on the reports of Dr Dixon dated 26 October 2021. In the first report, Dr Dixon noted that Ms Needham had developed paraesthesia in her left hand. Dr Dixon wrote:
“On examination - She reported intermittent paraesthesia in the index, middle and ring fingers of her left hand but when she performed the Tinel's test over the median nerve, it was negative and she reported the physiotherapist had done the same thing and that she had not had any nerve conduction test for carpal tunnel syndrome.”
Dr Dixon in the second report dated 26 October 2021 made an assessment of WPI. He wrote:
“That for the left elbow where she has had implant arthroplasty is from Table 16-27, AMA V, Page 506, 8% upper extremity impairment. That for the post traumatic stiffness of her left elbow is from Pie Charts 16-34 and 16-37, AMA V, Pages 472-474, 7% upper extremity impairment. This gives a total from the Combined Values Chart of 14% upper extremity impairment which equates to 9% whole person impairment.”
In the ARD under “injury description”, the following details were provided:
“On the 26th January 2020, the Applicant was working for the Respondent when she fell whilst working in the dark and sustained injuries to her right ankle, facial bruising, broken nose and left elbow, and sustained consequential injuries to her left hand and back.”
A claim for 16% WPI of left upper extremity, TEMSKI/Scarring and right lower extremity was made in the ARD.
Dr Rimmer, in a report dated 24 January 2023, noted that he had examined Ms Needham and found tone, power, sensation and reflexes in the left upper limb were all present and symmetrical.
In a s 78 Notice dated 17 February 2023, the insurer disputed liability for the claim for lump sum compensation on the basis:
·it is disputed that you suffer from at least 11 % WPI resulting from the injury occurring on 26 January 2020, and
·it is disputed you have any entitlement to lump sum compensation within the meaning of s 66 of the 1987 Act.
In the Reply dated 20 February 2023 under “Matters in Dispute”, the appellant wrote:
“1.     The respondent consents to the worker being referred to the medical assessor for assessment of the degree of permanent impairment resulting from the accepted injuries to her right ankle and left elbow.
2.      In the worker’s ARD, additional conditions/injuries are alleged including facial bruising/broken nose and "consequential injuries, affecting the left hand and back.” We confirm that no assessment of permanent impairment in respect of those injuries/conditions has been relied upon by the applicant, and there is accordingly no 'medical dispute' in respect of those injuries. The respondent therefore disputes that those additional injuries (that is injuries aside from the right ankle and left elbow) are capable of being referred to the medical assessor.
3.      The respondent would wish to be heard on that issue before a commission member in the event any dispute in relation to the above arises.”
In Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates). Leeming JA noted the following at [44]:
“The starting point is a “medical dispute”. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)…The term is defined by reference to the existence of a “dispute between a claimant and the person on whom a claim is made” about any of seven related subject matters including the degree of permanent impairment as a result of an injury…It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”
And at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a “medical dispute” because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
And at [49]:
“…it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment.”
It was clear from the Reply and from the reports of Dr Dixon dated 26 October 2021 that there was a dispute between the parties concerning the degree of permanent impairment in the right ankle and left elbow as a result of the injury on 26 January 2020. At no time had
Ms Needham made a specific claim in respect of an injury to the ulnar nerve and impairment in the left arm as a result of an injury to the ulnar nerve. Ms Needham’s claim in respect of the left elbow was restricted to assessment for impairment of the upper extremity after arthroplasty of the elbow, and assessment of upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination.
Dr Rimmer’s assessment of WPI of the left upper extremity was based on restriction of range of motion for flexion, extension, supination and pronation.
The Appeal Panel agreed with the appellant that the Medical Assessor made a demonstrable error in assessing impairment that was not part of the dispute identified by the parties. Further, it was unfair for the Medical Assessor to treat the ulnar nerve condition in the left arm as resulting from the incident on 26 January 2020 without putting this issue to the parties. This resulted in a lack of procedural fairness as neither party considered the issue and arguments or had a chance to address them.
Johnson J in Vitaz v Westform (NSW) Pty Limited and Ors [20010] NSWSC 667 considered whether the requirement for procedural fairness must be observed by an Approved Medical Specialist conducting an assessment of permanent impairment under the 1998 Act. Johnson J was satisfied that an Approved Medical Specialist performing an assessment of permanent impairment is, at least as a starting point, under some obligation of procedural fairness.
The Appeal Panel concluded that the assessment of the left upper extremity should be limited to an assessment of the impairment of the upper extremity after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination. Therefore, the assessment by the Medical Assessor of the ulnar nerve condition is to be deducted from the assessment made in respect of the right upper extremity. This results in an assessment of 14% upper extremity impairment for the right shoulder which equals 8% WPI.
In summary, the Appeal Panel assessed Ms Needham as having 8% WPI of the left upper extremity, 1% WPI for scarring/TEMSKI and 3% WPI of the right lower extremity. Therefore, 8% for the left upper extremity was combined with 3% for the right lower extremity and 1% for scarring/TEMSKI which resulted in a total of 12% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
11 May 2023 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:	W2186/23
Applicant:	Tracey Jayne Needham
Respondent:	Wollongong City Council

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 Yiu-Key Ho 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.Right upper extremity	26 January 2020	Figure 16-34, 16-37, Table 16-27	8%	0	8%
2.Right lower extremity	26 January 2020	Table 17-11	3%	0	3%
3. Scarring/ TEMSKI	26 January 2020	TEMSKI	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					12%

[2023] NSWPICMP 414

25 August 2023