Woolworths Group Ltd v Tucker
[2025] NSWPICMP 462
•27 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Woolworths Group Ltd v Tucker [2025] NSWPICMP 462 |
| APPELLANT: | Woolworths Group Limited |
| RESPONDENT: | Tucker |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| MEDICAL ASSESSOR: | Dr Marshal Douglas |
| DATE OF DECISION: | 27 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether medical dispute included the degree of permanent impairment the respondent has from an injury to her left wrist; whether medical dispute included permanent impairment the respondent has of left wrist from an injury to her left hand; whether Medical Assessor (MA) erred by assessing permanent impairment of respondent’s left wrist; Held – Appeal Panel held medical dispute did not involve an injury to respondent’s left wrist or include degree of her permanent impairment of her left wrist from a left hand injury and MA was consequently wrong to assess impairment of respondent’s left wrist; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 April 2025 Woolworths Group Limited, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr James Bodel, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
31 March 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).
RELEVANT FACTUAL BACKGROUND
The appellant employed Renae Lynne Tucker, the respondent, as a shelf packer. Her employment commenced in September 2019. Her duties required her to open cardboard boxes that had been assembled with a strong bond glue. As a consequence of performing these activities, and in particular on a date in July 2020 and also on 12 October 2020, she suffered an injury to her left thumb, left middle finger and left index finger. On 29 April 2021 she had a left thumb and index and middle finger release, which was done by orthopaedic surgeon Dr Bernard Schick. Her pain worsened and she was subsequently diagnosed with complex regional pain syndrome. Following an attempt by her to return to work she developed pain in her right shoulder, due to her having to use her right hand and shoulder more often because of weakness she experienced in her left hand from the injury to her thumb and fingers.
In a statement the appellant signed on 12 December 2024 she described experiencing symptoms of shooting nerve pain in her left thumb and index and middle fingers, and having limited strength and functional capacity in her left hand. She also described not being able to grip things properly. She described experiencing chronic pain in her right shoulder and not being able to move her right shoulder properly. She said that she struggles to perform domestic and personal care tasks due to pain and discomfort she experiences in her left hand and right shoulder.
The respondent claimed compensation from the appellant for permanent impairment she has from her injury. She relied on a report of occupational physician Dr Tommasino Mastroianni dated 23 May 2024 to support her claim. Dr Mastroianni had examined her on that date at the request of the respondent’s solicitors.
Dr Mastroianni advised in his report that the history he obtained was that the respondent performed repetitive activities with her left hand that caused triggering of the first, second and third digits and that the respondent, as a result of using her right shoulder, developed tendonitis in her shoulder and subsequently adhesive capsulitis. He advised the respondent sustained injury to her left hand whilst opening glued boxes and that she subsequently injured her right shoulder whilst she was doing selected duties that involved her predominantly doing right-handed work. Dr Mastroianni detailed the symptoms the respondent reported suffering, which included shooting pain in her arms starting in her hands and affecting the left side of her chest. He expressed his view that because of the respondent’s injury to her left hand the respondent had “restricted movements of the second, third, fourth and fifth metacarpophalangeal joints”. He advised he assessed the respondent had 11% impairment of her second, third, fourth and fifth digits due to restricted movements of the metacarpophalangeal joints, which he advised equates 2% of the hand for each of the index and middle fingers and 1% impairment of the hand for each of the ring and little fingers. He advised that the total impairment of the hand due to that is 6% which he advised equates to 5% upper extremity and in turn equates to 3% WPI. He advised he assessed the respondent had permanent impairment of her right shoulder of the order of 14% whole person impairment (WPI).
Dr Mastroianni advised that when the impairment relating to the respondent’s right shoulder is combined with the impairment relating to her hand, 16% WPI is the product. Hence, he assessed that the degree of the respondent’s permanent impairment from her work injury is 16% WPI.
The appellant’s insurer, following receipt of the respondent’s claim, arranged for the respondent to be examined on 18 October 2024 by orthopaedic surgeon Associate Professor Brett Courtenay. In a report dated 22 October 2024 Associate Professor Courtenay advised his diagnosis of the respondent’s injury is trigger finger of the thumb, index and middle fingers, which he advised had resolved with no loss of movement of the left arm but a persisting loss of grip strength and adhesive capsulitis of the right shoulder that he considered, on the balance of probability, was consequential to the respondent returning to work and using her right shoulder to protect her left hand. He advised that he assessed the degree of the respondent’s permanent impairment from her injury was 14% WPI, which related all to her right shoulder. He advised that he assessed the respondent did not have any permanent impairment relating to her left upper extremity. That was on the basis that she had no impairment of her left hand as she had full range of movement in all her fingers and the wounds from her surgery had healed up.
On 12 November 2024 the solicitor for the appellant advised the solicitor acting for the respondent by email that the appellant offered to settle the respondent’s claim for compensation on the following terms:
“1. The respondent to pay the applicant lump sum compensation under s.66 of the Act in the sum of $34,210 representing a 14% WPI (right upper extremity); AND
2. The applicant suffers 0% WPI in relation to the left upper extremity (left middle finger, left index finger and left thumb).”
The appellant’s solicitor advised, with emphasis, that if the respondent were to accept the offer that the acceptance would be “contingent upon acceptance of the entire offer (i.e. both paragraphs one and two above)”.
On 16 December 2024 the appellant registered with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD), by which she sought the Commission determine her claim for compensation for permanent impairment from her injury. In the ARD the respondent described her injury in the following terms:
“The Applicant sustained injury to her left upper extremity (hand) on the deemed dated of 12 October 2020. The injury was sustained during the course of employment unpacking boxes and developed as per the history recorded by a Dr Ryan on pages 3 and 4 of her report dated 11 October 2021. The Applicant has also sustained a consequential right shoulder condition.”
Dr Symone Ryan is a consultant occupational physician. The report of Dr Ryan to which the respondent referred in the ARD was done following her examination of the respondent on
8 September 2021, which she had done at the request of the respondent’s solicitors. Her report was one of several reports the respondent’s solicitors provided to the appellant’s insurer by letter of 4 September 2024, by which they had notified the insurer of the respondent’s claim for compensation. The history that Dr Ryan detailed in her report and to which the respondent referred in the description of her injury she provided in the ARD, accorded with what Dr Mastroianni had detailed in his report of 23 May 2024 and also with what the respondent had detailed in a statement she signed on 31 January 2022. In substance it was that the respondent injured her left middle finger and left thumb from opening boxes that had been bound together strongly with glue.Following the appellant lodging a reply to the ARD with the Commission, a delegate of the President of the Commission referred the matter to the Medical Assessor for the purpose of assessing the medical dispute between the parties relating to the degree of the respondent’s permanent impairment from her injury. That referral detailed that the “body part/s” being referred were “left upper extremity, right upper extremity”.
The Medical Assessor examined the respondent on 28 February 2025 to conduct that assessment and, as said above, he issued the MAC on 31 March 2025 in response to the referral. In that he certified he assessed the degree of the respondent’s permanent impairment from her injury is 16% WPI, which was a combination of 11% WPI relating to the right upper extremity and 6% WPI relating to her left upper extremity. No issue is raised in the appeal against his assessment of the respondent’s permanent impairment relating to her right upper extremity. What is an issue is that the Medical Assessor included in his rating of the respondent’s permanent impairment relating to her left upper extremity an impairment he found the respondent had due to restricted range of movement of her left wrist.
Within part 10a of the MAC the Medical Assessor provided the following explanation for how he calculated the respondent’s permanent impairment of her left upper extremity:
“On the left-hand side, there is a slight restriction of wrist movement and that is assessed using Figure 16-28 on page 467 and Figure 16-31 on page 469, as well as Figure 16-37 on page 474, giving a 6% Upper Extremity Impairment for the left wrist.
There is also the restriction of a metacarpophalangeal joint movement of flexion and extension in the index and middle fingers of the left hand, giving an 11% Digital Impairment for the index finger and an 11% Digital Impairment for the middle finger. These become a 2% Impairment of the Hand and a 2% Upper Extremity Impairment in the hand for those two digits.
That leaves a total of five individual ratings of 2% for the wrist and the index and middle fingers to give a 10% Upper Extremity Impairment, which converts to a 6% Whole Person Impairment for the Left Upper Extremity.”
The appellant takes no issue with the Medical Assessor’s rating of the respondent’s permanent impairment due to the restriction of the respondent’s movement of the metacarpophalangeal joints of her fingers.
The Medical Assessor observed that the respondent had light touch allodynia in her left hand but did not exhibit any other sign that would enable him to make a diagnosis of complex regional pain syndrome in accordance with Table 17.1 of the Guidelines. The Medical Assessor noted that the respondent suffered symptoms of pain, stiffness, numbness and tingling in both her hands with her left hand being worse than her right hand. He also noted that she had neuropathic pain in her left upper limb.
The Medical Assessor provided the following summary of the respondent’s injury and his diagnosis of it:
“The claimant has clinical evidence of trigger fingers in the left hand. This is associated with tenosynovitis induced by the nature of her work. She has had successful surgery and the triggering has ceased, but there is a slight restriction of index and middle finger movement at the metacarpophalangeal joint of the left hand.
She has some neuropathic pain in the left upper limb and she has developed a consequential restriction of shoulder movement while depending on that arm and favouring that arm while recovering from the injury to the left hand.”
The Medical Assessor observed that Dr Mastroianni had assessed the respondent had 16% WPI and said that he found the same level of WPI “for similar findings in regards to restricted range of movement in the left hand and in the right shoulder”. The Medical Assessor also noted that Associate Professor Courtenay had assessed the degree of the respondent’s permanent impairment as 14% WPI and further noted that Associate Professor Courtenay found that the respondent had no restrictions of movement in the left wrist and hand.
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 respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by assessing an impairment the respondent had of her left wrist, and this was because the respondent’s left wrist was not the subject of the referral to him. The appellant submitted the Medical Assessor consequently went beyond the scope of his powers. The appellant noted that the report of Dr Mastroianni, on which the respondent relied to make her claim, did not assess the respondent had impairment of the left wrist. The appellant noted that the respondent in her statements did not indicate any issue with her left wrist nor did Dr Ryan in her report. The appellant submitted in none of the documents of the clinicians with whom the respondent attended for treatment was there evidence of the respondent having a problem with her left wrist.
The appellant submitted that the respondent’s left wrist was not part of her claim for compensation.
In reply, the respondent submitted that her claim related to her left upper extremity and right upper extremity. The respondent noted that the delegate of the President referred her left upper extremity and right upper extremity to the Medical Assessor. The respondent, relying on the judgment of McCallum JA in Skates v Hills Industries Ltd[1], submitted that the Medical Assessor was permitted to consider her left wrist when assessing the degree of her permanent impairment relating to her left upper extremity and, consequently, the Medical Assessor did not err by doing so.
[1] [2021] NSWCA 142 (Skates) at [76], [82] and [83].
The respondent submitted that her case is similar to the circumstances considered in Klement v Bull N’ Bush Nurseries Pty Ltd,[2] which the respondent submitted was another case concerning the assessment of an injury or condition which the employer alleged was not referred to for assessment.
[2] [2024] NSWSC 466 (Klement).
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Medical Assessor was required to assess the medical dispute that had arose between the parties.[3] It was that medical dispute that was to be resolved by the medical assessment the Medical Assessor undertook.
[3] Skates at [47], [76] and [82].
It was necessary therefore for the Medical Assessor to identify that medical dispute. That is done by reference to the documentation the parties lodged with the Commission.[4] The referral form that was issued by the Commission to the Medical Assessor, which identified the body parts for the Medical Assessor to assess as “left upper extremity, right upper extremity”, whilst an important document was not a critical document for that task. The form of referral by which the Commission refers a medical dispute to a Medical Assessor is essentially “paperwork associated with the administration of the legislation”.[5] It does not define the medical dispute between the parties that a Medical Assessor is to assess. To repeat in slightly different words, that dispute is crystalised by documents the parties file with the Commission and, principally, the correspondence that has passed between the parties[6] by which one party makes a claim and the response of the other to that claim.
[4] Skates at [29]-[30], [44] and [46]-[48]; Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 at [8]-[9].
[5] Skates at [48].
[6] See also Sakr v Merrylands Christians Pre-school Association Inc [2022] NSWSC768 at [40] – [45].
The respondent’s claim was based on the documents the respondent’s solicitors provided the appellant’s insurer with their correspondence of 4 September 2024. That included the report of Dr Mastroianni. As noted earlier, he advised that the respondent’s injury was to her left hand, which caused triggering of the respondent’s first, second and third digits and also resulted in a consequential condition in the respondent’s right shoulder. With respect to the primary injury to the respondent’s left hand that caused triggering of her first, second and third digits he assessed the degree of the respondent’s permanent impairment was 3% WPI, based on the restricted range of motion she had of the metacarpophalangeal joints of her second, third, fourth and fifth digits. Dr Mastroianni did not describe or diagnose the respondent had suffered an injury to her left wrist. With respect to the injury he did diagnose, which was to her left hand, he did not assess any impairment of her left wrist resulting from that.
All of the reports and the respondent’s statement that were attached to the respondent’s solicitor’s letter by which the respondent made her claim for compensation, which included the report of Dr Ryan and the reports of clinicians from whom the respondent sought treatment, did not identify or describe an injury to the respondent’s left wrist or any impairment or restricted function of her left wrist due to the injury to her left hand. Nowhere within the other documents that the respondent’s solicitors provided to the insurer when notifying it of the respondent’s claim is there any evidence that the respondent suffered an injury to her wrist or experienced symptoms in her wrist or had sought treatment with respect to her wrist.
The report of Associate Professor Courtenay on which the appellant relied to make an offer in response to the respondent’s claim, similarly only identified injuries to the respondent’s left hand involving her digits, and a consequential condition to the respondent’s right shoulder.
By combination of ss 260, 281(2), 281(2A) and 282(1), a worker when making a claim for compensation for permanent impairment from a work injury provide particulars of the injury the worker suffered and the impairment arising from that injury. In the Appeal Panel’s view the respondent’s claim, insofar as it related to her left upper extremity, was for compensation for permanent impairment resulting from the injury she suffered to her left thumb, left index finger and left middle finger. The impairment for which she claimed compensation resulting from that injury was the restricted range of movement she had of the metacarpophalangeal joints of her second, third, fourth and fifth digits. Her claim did not involve any impairment relating to her left wrist from the injury she suffered to her left thumb, left index finger and left middle finger. That is to say the medical dispute between the parties that was the subject of the respondent’s claim for compensation that was crystallised by the exchange of the respondent’s correspondence and the appellant’s response to that, insofar as that dispute related to the respondent’s left upper extremity, was the impairment the respondent had due to the restricted range of movement of the metacarpophalangeal joints of her second, third, fourth and fifth digits of her left hand.[7]
[7] See generally Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53 at [49]-[51].
Given that, the Medical Assessor was wrong to assess the impairment of respondent’s left wrist. That error amounts to the MAC containing a demonstrable error.
The Appeal Panel considers that this case is not the same as the circumstances that arose in Klement. What was in issue in Klement is similar to this matter in that the issue involved what was included in the medical dispute between the parties. However, the resolution of that issue in Klement related to the injuries the plaintiff suffered in regards to which the Medical Assessor was required to assess the resultant permanent impairment.
There was no dispute in Klement that the workplace injuries the plaintiff suffered included an injury to the plaintiff’s left shoulder. The medical specialist whom the plaintiff qualified to provide evidence to support her claim (the plaintiff’s IME) assessed the degree of the plaintiff’s permanent impairment was 21% WPI due to injury to his left upper extremity. That did not include any impairment relating to her left shoulder. Similarly, the medical specialist whom the defendant qualified to provide evidence to respond to the plaintiff’s claim (the defendant’s IME) assessed the degree of the plaintiff’s permanent impairment was 10% WPI, which also did not include any impairment relating to the left shoulder. Both doctors had examined the plaintiff’s left shoulder but considered there was no impairment of it. The plaintiff had experienced symptoms in his shoulder and had received treatment for his shoulder.
The referral of the medical dispute by the Commission to the Medical Assessor in that case described the injuries being to “left upper extremity, cervical spine, scarring (TENSKI)”. The Medical Assessor assessed the degree of the plaintiff’s permanent impairment was 23% WPI, which included 17% WPI relating to his left upper extremity. That assessment included an impairment due to the plaintiff’s left shoulder.
The defendant appealed against the Medical Assessor’s assessment on the grounds that the plaintiff’s claim was confined to the opinion of his IME who had not assessed any impairment of the plaintiff’s left shoulder. The defendant contended that the plaintiff’s claim for permanent impairment was limited to his spine and left elbow/ulnar nerve injury. The plaintiff contended in response that his claim included an injury to all his upper extremity which injury was supported by evidence in his statement, his medical history of examination and treatment of injury and the report of his IME. The plaintiff further contended that the defendant had not disputed that he had suffered an injury to all his left upper extremity, but rather, based on the report of its IME, had not suffered the degree of permanent impairment that his IME had assessed.
Schmidt AJ held that the Appeal Panel failed to consider a report of one of the plaintiff’s treating doctor’s documents, which supported his claim that he had injured all his left upper extremity and that his injury is not confined to his elbow. Schmidt AJ held that the Appeal Panel was wrong to conclude that the plaintiff had not claimed an injury to his left shoulder. Schmidt AJ held that it did not matter that neither the plaintiff’s IMI nor the appellant’s IME had concluded the plaintiff did not have an impairment relating to his left shoulder, and that their lack of such an assessment did not confine the medical dispute. Schmidt AJ held that the Medical Assessor was not bound by the conclusions of either the plaintiff’s IME or the defendant’s IME and had to make his own assessment having regard to the reports and all other material.
In other words, Klement was decided on the basis that the Medical Assessor had to assess all the impairments the plaintiff had suffered from an agreed injury, notwithstanding that the respective IMEs of the parties at the time they examined the plaintiff found that the plaintiff did not have an impairment relating to his left shoulder. Schmidt AJ held that the “statutory scheme accepts that injuries can improve or worsen overtime and so an assessor must base his conclusions on his own findings and opinions, formed at the time of assessment, while taking into account what early examinations have established”.[8]
[8] Klement at [74].
Klement differs from the current case in that the respondent did not claim to suffer injury to her left wrist and there is no evidence that indicates she did or that she ever sought treatment for her left wrist. Her claim for compensation relating to the agreed injury to the digits of her left hand and the consequential condition in the right shoulder did not involve any impairment relating to her wrist from that agreed injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 March 2025 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: | W29979/24 |
Applicant: | Renae Lynne Tucker |
Respondent: | Woolworths Group Limited |
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 James Bodel 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 AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Left upper extremity | 12.10.2020 | Chapter 2 | Figures 16-10 to 16-25 | 2% | - | 2% |
| Right upper extremity | Figures 16-38 to 16-46 | 11% | - | 11% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0
5
0