Wright v State of NSW (NSW Police Force-Special Operations Command)

DETERMINATION OF APPEAL PANEL
CITATION:	Wright v State of NSW (NSW Police Force-Special Operations Command) [2024] NSWPICMP 551
APPELLANT:	Maria Wright
RESPONDENT:	State of New South Wales (NSW Police Force – Special Operations Command)
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	8 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal by appellant worker on grounds of deterioration in her condition that resulted in an increase of the degree of permanent impairment and on the availability of additional relevant information; Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission considered; there was evidence of deterioration amounting to a change in the degree of permanent impairment; fresh evidence received on appeal; worker re-examined by a member of the Panel; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 February 2024 Maria Wright (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr David McGrath, who as an Approved Medical Specialist in the Workers Compensation Commission, issued a Medical Assessment Certificate (MAC) on 30 January 2018. For convenience, Dr McGrath will be referred to as “the Approved Medical Specialist” (AMS) in this decision. The appellant says that her condition has deteriorated since the AMS examined her.
The respondent to the appeal is The State of New South Wales (NSW Police Force – Special Operations Command) (the respondent).
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):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
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 lodged an Application for Assessment by a Medical Assessor (the Application) in the Workers Compensation Commission (WCC) on 15 December 2017 for assessment as to whether the degree of permanent impairment is more than 20% (s 39 Workers Compensation Act 1987). The appellant alleged that on
12 November 1997 she tripped and fell on stairs at Point Claire train station on a journey to work, suffering injuries to the right ankle, right wrist/hand and right shoulder and consequential injury to the left knee and scarring.
In the Referral for Assessment of Permanent Impairment to Approved Medical Specialist (the referral) dated 18 December 2017 the matter was referred to the AMS,
Dr David McGrath, for assessment of whole person impairment (WPI) of the right upper extremity, right lower extremity, left lower extremity and scarring with the date of injury being 12 November 1997. The referral noted previous awards or settlements as follows:
“Terms of Settlement 24/1/01 (D.O.I: 12 November 1997)
10%- permanent loss of the efficient use of the right arm at or above the elbow
9885-06 (D.O.I: 12 November 1997)
20%- permanent loss of the efficient use of the right leg below the knee
6% WPI (D.O.I & body systems not provided)
Complying Agreement 14/2/14 (D.O.I: 12 November 1997)
5% - further permanent loss of the efficient use of the right leg below the knee”.
The AMS examined the appellant on 30 January 2018 and assessed 11% WPI of the right upper extremity, 4% WPI of the right lower extremity, 2% WPI of the left lower extremity and 1% WPI for scarring which resulted in a combined total of 18% WPI.

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 requested that she 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 there is evidence of a deterioration in appellant’s condition since the assessment by the AMS and it is necessary for the worker to undergo a further medical examination because there is insufficient information on which to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant filed fresh evidence in this matter. The Appeal Panel notes that some of the documents filed with the submissions of the appellant, namely the report of Dr Guirgis dated 18 August 2017 and the reports of Dr Myers dated 28 July 2015 and 23 March 2016 had been filed with the Application and were already in evidence in this matter. It is therefore unnecessary for the Appeal Panel to consider whether those documents and reports should be admitted as fresh evidence.
The appellant seeks to admit the following evidence:
(a)    Supplementary statement of the appellant dated 6 February 2023;
(b)    Reports of Dr Medhad Guirgis dated 7 December 2023 and 21 December 2022;
(c)    Reports of Professor Martin Sullivan dated 13 October 2020 x 2,
10 November 2020 x 2, 5 January 2021, 2 March 2021 x 2, 13 March 2021, 11 May 2021, 25 May 2021, 20 July 2021, 3 August 2021, 7 September 2021,
19 October 2021, 21 October 2021, 9 November 2021, and 14 December 2021;
(d)    Reports of Dr Andrew Myers dated 7 March 2019, 10 April 2019, 30 April 2019, 21 May 2019, 4 June 2019, 2 July 2019, 12 July 2021, 15 October 2021,
12 November 2021, 10 December 2021, 19 January 2022, 14 April 2022, and
13 July 2022 x 2;
(e)    Left knee x-ray and right foot x-ray report of Dr Andrew Solomons dated
14 September 2020;
(f)     CT right ankle report of Dr Brett Lurie dated 13 October 2020;
(g)    X-ray right foot and ankle report of Dr Anna McNaught dated 13 April 2021;
(h)    CT right ankle/hindfoot report of Dr Saurabh Khandelwal dated 18 May 2021;
(i)    X-ray right foot and ankle report of Dr Steven Blom dated 19 October 2021, and
(j)    CT right ankle report of Dr Victor Liu dated 9 December 2021.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
In State of New South Wales v Ali [2018] NSWSC 1783 (Ali), it was noted by his Honour Harrison J that s 327(3)(b) limited that right of appeal to circumstances where additional relevant information was available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“…section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite...”
The respondent opposes the admission of the fresh evidence. While the respondent acknowledges the appellant has undergone further surgeries since the date of the medical assessment, it does not concede that in line with the above authorities the appellant is permitted to, in essence, seek a further examination for the purposes of satisfaction of relevant thresholds.
The respondent also refers to s 322A of the 1998 Act, which limits a worker to one assessment of the degree of permanent impairment and submits that this is not just referable to assessments of claims for lump sum compensation but also is applicable to relevant thresholds.
The respondent does not consider that the exemption outlined in s 322A(4) applies here, as it is intended to address the situation whereby an Appeal Panel were to issue a further MAC following an appeal and not to permit numerous attempts at assessment of workers, years apart.
The respondent submits that the additional statement of the appellant is represented as an aggrieved party being given another chance to run the assessment as they disagree with the conclusions reached initially and does not have any probative value. In terms of the updated assessments of Dr Guirgis, the respondent submits it is prejudiced in addressing the assessments in circumstances whereby it has not been afforded the opportunity to have the worker reviewed by its qualified assessor, Dr Richard Powell, since June 2017.
Overall, the respondent submits that the documents should not be allowed to be admitted as it goes against the underlying principle of the need for finality in litigation and the importance of the ability of a successful party to rely on the outcome of the litigation.
Section 327(3) prescribes the only four available grounds for appeal from a Medical Assessment Certificate:
(a)    deterioration in the worker’s condition resulting in an increase in permanent impairment resulting from injury;
(b)    availability of additional evidence in certain circumstances; (c) assessment on the basis of incorrect criteria, and
(c)    demonstrable error.

Grounds (c) and (d) require the demonstration of error of one sort or another in the Medical Assessment Certificate. This appeal is brought on ground (a) and (b). Those grounds do not require the demonstration of error. On the contrary, ground (a) assumes the correctness of the MAC, and requires proof that the situation has changed in the manner set out in the subsection since the MAC was issued.

The requirement for proof that the appellant’s condition has deteriorated itself requires evidence in addition to that which was before the original assessor. By necessity, such an appeal is based on fresh evidence.
The respondent argues that unlike impairment to the spine, a worker is not ascribed impairment in respect of the upper or lower extremities based upon the number/ kind of surgical procedures undertaken. The Appeal Panel notes, however, that the Guidelines at paragraph 3.18 make provision for assessment of permanent impairment if ankylosis is undertaken.
The Appeal Panel notes that the appellant commenced these proceedings in the WCC on
15 December 2017 and that the AMS examined appellant on 30 January 2018. The Appeal Panel accepts that all of the documents listed above were not available to the appellant before the medical assessment and the documents could not reasonably have been obtained by the appellant before that medical assessment as they came into existence after the Application was filed or after the examination by the AMS. Further, the Appeal Panel is satisfied that these documents are probative to the issues to be determined in the appeal.
The Appeal Panel determines that the following evidence, should be received on the appeal:
(a)    Supplementary statement of the appellant dated 6 February 2023;
(b)    Reports of Dr Medhad Guirgis dated 7 December 2023 and 21 December 2022;
(c)    Reports of Professor Martin Sullivan dated 13 October 2020 x 2,10 November 2020 x 2, 5 January 2021, 2 March 2021 x 2, 13 March 2021, 11 May 2021, 25 May 2021, 20 July 2021, 3 August 2021, 7 September 2021, , 19 October 2021, 21 October 2021, 9 November 2021, and 14 December 2021;
(d)    Reports of Dr Andrew Myers dated 7 March 2019, 10 April 2019, 30 April 2019, 21 May 2019, 4 June 2019, 2 July 2019, 12 July 2021, 15 October 2021, 12 November 2021, 10 December 2021, 19 January 2022, 14 April 2022, and 13 July 2022 x 2;
(e)    Left knee x-ray and right foot x-ray report of Dr Andrew Solomons dated 14 September 2020;
(f)     CT right ankle report of Dr Brett Lurie dated 13 October 2020;
(g)    X-ray right foot and ankle report of Dr Anna McNaught dated 13 April 2021;
(h)    CT right ankle/hindfoot report of Dr Saurabh Khandelwal dated 18 May 2021;
(i)    X-ray right foot and ankle report of Dr Steven Blom dated 19 October 2021, and
(j)    CT right ankle report of Dr Victor Liu dated 9 December 2021.

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

Dr J Brian Stephenson of the Appeal Panel conducted an examination of the appellant on
26 June 2024 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.
The appellant’s submissions include the following:
(a)    subsequent to the examination by the AMS on 17 January 2028, the appellant’s condition has further deteriorated with further subsequent treatment including surgery required.
(b)    in respect of the right lower extremity, the progression of pain and tenderness in the right ankle necessitated further surgery on 5 January 2021 (right ankle fusion (subtalar arthrodesis with bone graft and internal fixation)), 20 July 2021 (right revision subtalar arthrodesis with iliac crest bone graft) and on 21 October 2021 (removal of right staple calcaneocuboid joint and arthrex screw).
(c)    fusion of the right ankle has resulted in an increase of WPI confirmed by Dr Medhat Guirgis in his reports of 7 June 2022 and 7 December 2023. Dr Guirgis assessed 13% of the right lower extremity following fusion. The AMS assessed 4% WPI for the right lower extremity.
(d)    in respect of the right upper extremity, the appellant underwent additional procedures to her right upper extremity since being examined by the AMS on
13 July 2022 (right thumb trapeziectomy and suspension arthroscopy) and on
19 January 2022 (bilateral little finger release on both hands).
(e)    the assessment by Dr Guirgis in his reports of 7 June 2022 and 7 December 2023 includes an assessment of 31% WPI for the right upper extremity (taking into account the right shoulder, right wrist, right forearm and right thumb). This exceeds the assessment by the AMS of 11% WPI for the right upper extremity.
(f)    in respect of the left lower extremity, Dr Guirgis assessed 5% WPI.
(g)    in respect of scarring Dr Guirgis assessed 2% WPI which exceeds the assessment of 1% WPI by the AMS.
(h)    in respect of the left upper extremity, the appellant, in her statement dated
6 February 2023, said that she sustained a consequential injury to her left upper extremity in May 2018 when she suffered a fall on account of her right leg giving way.
(i)    this consequential injury to the left upper extremity was accepted by the insurer who funded specialist medical treatment including a left De Quervain’s tenosynovitis release of the wrist on 10 April 2019 and a release of the left carpal tunnel compression of the median nerve and bilateral little finger release on both hands on 19 January 2022.
(j)    while Dr Guirgis did not make an assessment of WPI in respect of the left upper extremity, it is appropriate for the Appeal Panel to consider whether there has been any impairment to the left upper extremity.
(k)    in conclusion, there has been a clear deterioration in the appellant’s condition since her assessment by the AMS. She has undergone multiple surgical procedures and there is evidence that her degree of impairment now exceeds that which was previously assessed in the MAC dated 30 January 2018.
The State of New South Wales (NSW Police Force – Special Operations Command) submissions included the following:
(a)    the appeal relates to the alleged deterioration in the appellant’s condition following further surgeries to her right ankle, right thumb left wrist and bilateral little fingers which have been undertaken since she was examined by the AMS.
(b)    relevantly, the right thumb, bilateral little fingers, and left upper extremity (wrist) did not form part of the assessment undertaken by the AMS in 2018.
(c)    the AMS assessed the applicant in connection with her litigated threshold dispute for the purposes of s 39. He assessed 18% whole person impairment (right upper extremity 11%, right lower extremity 4%, left lower extremity 2%, scarring 1%).
(d)    in 2022, Dr Guirgis assessed 37% WPI (13% WPI for the right lower extremity, 5% WPI for the left lower extremity and 22% WPI in the right upper extremity). He assessed 2% for scarring.
(e)    in 2023, Dr Guirgis added 21% upper extremity impairment for the right thumb, ultimately reaching an assessment of 44% WPI (right upper extremity assessed at 31% WPI, right lower limb assessed at 13% WPI, left lower limb assessed at 5% WPI and scarring assessed at 2% WPI).
(f)    at the time of the AMS’ assessment in 2018, he examined: (a) the right upper extremity (shoulder and wrist); (b) the right lower extremity (ankle); (c) the left lower extremity (knee) and (d) scarring (right ankle, right wrist and right shoulder)
(g)    the appellant now relies on an updated opinion from Dr Gurgis which assesses these body parts, together with the left wrist, the right thumb and bilateral little fingers.
(h)    an appeal is not allowed in respect of all of the consequences of a work injury: rather, it is confined to the terms of s 327(3)(a) (O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 (O’Callaghan)). Therefore, assessments of the left wrist, right thumb, and bilateral little fingers are impermissible.
(i)    the MAC ought to be confirmed.

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 Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Discussion

The concept of deterioration was considered by the Court of Appeal in Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission [2007] NSWCA 149 Campbell JA (Riverina Wines) said at [94]-[95]:
“Considering that submission involves, first, construing section 327(3)(a). ‘deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.
The conclusive presumption of correctness does not attach to every statement that is made in a MAC – in the present case, that conclusive presumption of correctness applies, under Part 18C Schedule 6 Clause 4(2) only to ‘the matters in dispute in any proceedings in respect of the claim for compensation concerned’. In the present case, that is the extent to which the Worker has suffered a percentage loss of efficient use of the right arm at or above the right elbow. Thus, in the present case, the relevant type of ‘deterioration’ for the ground in section 327(3)(a) is established if her present condition is such that she has a percentage loss of efficient use of the right arm at or above the right elbow of greater than 0%.”
Handley JA said at [122]:
“The relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
The appellant alleges that since the assessment by the AMS there has been deterioration in her right ankle, right upper extremity (right thumb), bilateral little fingers, left lower extremity, scarring and a consequential condition in left upper extremity that occurred in May 2018 as a result of a fall.
The respondent submits that an appeal is not allowed in respect of all of the consequences of a work injury and therefore assessments of the left wrist, right thumb, and bilateral little fingers are impermissible.
In O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 from paragraphs 90-92, Acting President Bill Roche said:
“Contrary to Mr McManamey’s submissions, s 327(3)(a) does not allow an appeal in respect of all of the consequences of the work injury. It is confined to its terms and has been the subject of binding judicial scrutiny in Aircons and Riverina Wines. Those decisions make Mr McManamey’s submissions untenable.
The interpretation urged by Mr McManamey is not consistent with s 263(1). That provision provides that all claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time. That is consistent with the intention manifested in s 66(1A) of the 1987 Act, namely, that workers are restricted to one claim for whole person impairment compensation in respect of the permanent impairment that results from “an injury”. The words “as far as practicable” make no difference to the clear meaning of s 66(1A) and still have work to do in cases involving claims for permanent impairment compensation where a worker has received a primary psychological injury and a physical injury in the same incident (s 65A of the 1987 Act; Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 (Tokich)).
It follows that I do not accept that a proper reading of s 327(3)(a) means that there is an appeal so long as there has been a deterioration in the worker’s overall medical condition. That approach is contrary to the binding authorities applied by the Arbitrator, in particular Riverina Wines, and contrary to the language of the section.”
The Appeal Panel accepts that an appeal is not allowed in respect of all of the consequences of a work injury and is confined to the terms of s 327(3)(a).
The Appeal Panel reviewed the evidence in this matter.
The AMS assessed a combined 18% WPI in respect of 11% WPI of the right upper extremity, 4% WPI of the right lower extremity, 2% WPI of the left lower extremity and 1% WPI for scarring in the MAC dated 30 January 2018.
The Appeal Panel noted that the AMS’ assessment of 11% for the right upper extremity was comprised an assessment of 9% upper extremity impairment (UEI) for the right shoulder and 9% UEI for the right wrist. The total impairment of the wrist and shoulder was 18% UEI which was converted to 11% WPI. There was no assessment of the right thumb or right little finger.
The AMS’ assessment of 4% WPI for the right lower extremity comprised an assessment of 9% lower extremity impairment (LEI) which was converted to 4% WPI. The assessment of the left lower extremity was comprised an assessment of 2% WPI of the left knee as the AMS found that the appellant satisfied the criteria for patella-femoral arthritis under Table 17-31 page 544 AMA 5. The AMS assessed 1% for scarring under TEMSKI, noting that there were two scars from right ankle surgery, one scar from right wrist surgery and small scars from the arthroscopic shoulder surgery.
Although the appellant has undergone procedures to her right upper extremity since being examined by the Approved Medical Specialist, these are procedures relating to the right thumb (trapeziectomy and suspension arthroscopy) and bilateral little finger release on both hands.
The appellant referred to the reports of Dr Guirgis. In his report dated 18 August 2017,
Dr Guirgis assessed 11% WPI of the right lower extremity (ankle), 5% WPI of the left lower extremity (knee), 16% WPI of the right upper extremity (9% UEI of the right shoulder, 10% UEI of the right wrist, 10% UEI for median nerve lesion and 2% UEI for ulnar nerve lesion) and 2% WPI for scarring.
The appellant submitted that there was evidence of deterioration relying on the reports of
Dr Guirgis dated 21 June 2022 and 7 December 2023 as showing deterioration since the assessment in November 2005.
In his report of 21 June 2022, Dr Guirgis noted that he had re-examined the appellant, who had indicated that her symptoms had worsened with time and that she had undergone three further surgical procedures. Dr Guirgis assessed 13% WPI of the right lower extremity (ankle), 5% WPI of the left lower extremity (knee), 22% WPI of the right upper extremity 11% UEI of the right shoulder, 20% UEI of the right wrist, 10% UEI for median nerve lesion and 2% UEI for ulnar nerve lesion) and 2% WPI for scarring.
In his report of 7 December 2023, Dr Guirgis noted that he had re-examined the appellant on 8 August 2023. He noted that she had undergone excision arthroplasty for the right 1st carpometacarpal joint on 13 July 2022 and further surgery on 2 November 2022 when the Arthrex implant was removed. Dr Guirgis assessed, 44% WPI of the right upper extremity (21% UEI for thumb impairment, 11% UEI of the right shoulder, 20% UEI of the right wrist and forearm, 10% UEI for median nerve lesion and 2% UEI for ulnar nerve lesion) 13% WPI of the right lower extremity (ankle), 5% WPI of the left lower extremity (knee) and 2% WPI for scarring.
The reports of Dr Guirgis are evidence of deterioration in the right lower extremity (ankle), and deterioration of the right shoulder and right wrist. Dr Guirgis, in his report dated 7 December 2023, made an assessment of impairment in respect of the right thumb for the first time.
There was, however, based on Dr Guirgis’ reports, no evidence of deterioration of left lower extremity (knee), or of deterioration in the right upper extremity in respect of the median nerve lesion and ulnar nerve lesion or any deterioration in scarring.
Campbell JA in Riverina Wines said that “the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place.”
The degree of impairment that has been certified by the MAC is 11% for the right upper extremity (comprised an assessment of 9% UEI for the right shoulder and 9% UEI for the right wrist), 4% WPI for the right lower extremity (ankle) (comprised an assessment of 9% LEU which was converted to 4% WPI), 2% WPI of the left knee (patella-femoral arthritis under T17-31 page 544 AMA 5) and 1% for scarring under TEMSKI.
The appellant submitted that the consequential condition to the left upper extremity was accepted by the insurer who funded specialist medical treatment including a left De Quervain’s tenosynovitis release of the wrist on 10 April 2019 and a release of the left carpal tunnel compression of the median nerve and bilateral little finger release on both hands on 19 January 2022. The appellant conceded that Dr Guirgis did not make an assessment of WPI in respect of the left upper extremity, but argued that it is appropriate for the Appeal Panel to consider whether there has been any impairment to the left upper extremity.
The only body systems referred to the AMS were the right upper extremity, left lower extremity, right lower extremity and scarring (TEMSKI). The AMS correctly confined his assessment to those body systems. He did not assess the left upper extremity, as it was not referred for assessment. It was not and could not be so referred, because no consequential condition of the left shoulder was alleged in those proceedings. It appears that the issue of whether there has been a consequential injury to the left upper extremity has not been determined by the Commission.
In these circumstances, the Appeal Panel does not agree with the appellant that it is appropriate to for the Appeal Panel to consider whether there has been any impairment to the left upper extremity as a result of a consequential condition. No assessment of WPI in the left upper extremity was made by Dr Guirgis. In any event, as noted below, Dr Stephenson on re-examination found that there was a full range of movement in the left wrist, left elbow and left shoulder. Therefore, there is no impairment that can be assessed in respect of the left upper extremity.
The AMS assessed 2% WPI of the left lower extremity (knee) in the MAC dated
30 January 2018. The AMS made a diagnosis of a left knee soft tissue injury. Dr Guirgis, in his reports of 21 June 2022 and 7 December 2023, made an assessment of 5% WPI of the left lower extremity. The Appeal Panel accepts that there is evidence of deterioration in the left lower extremity.
The Appeal Panel accepts that the appellant has undergone further surgery to the right ankle since the MAC was issued. The assessments by Dr Guirgis in 2022 and 2023 are evidence of deterioration in the right ankle and foot, left knee, right shoulder, right wrist and scarring since the examination by the AMS on 17 January 2018.
The Appeal Panel concluded that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination of whether the deterioration in the right ankle, right shoulder, right wrist, left knee and scarring had resulted in any increase in WPI since the assessment by the AMS on 30 January 2018. As the AMS made no assessment of the right thumb, bilateral little fingers or left upper extremity in the MAC, the Appeal Panel considered the re-examination be limited to right ankle, left knee, right shoulder, right wrist, left knee and scarring.
As noted above, Dr J Brian Stephenson re-examined the appellant on 26 June 2024. Dr Stephenson provided the following report:
1. ADDITIONAL HISTORY SINCE THE ORIGINAL MEDICAL ASSESSMENT CERTIFICATE WAS ISSUED
There was no additional history since the original medical assessment certificate was performed.
In the original MAC, Dr David McGrath, he found at right upper extremity 11% WPI, right lower extremity 4% WPI, left lower extremity 2% WPI, scarring 1% WPI. Combined value 18% WPI. There was no deductible proportion.

1. The worker's medical history, where it differs from previous records

There was no difference, I have noted the assessment of Dr McGrath and no deductible proportion for right upper extremity, right lower extremity and left lower extremity of 11%, 4% and 2% respectively plus scarring 1% gaining 18% WPI. The left lower extremity was not claimed. You note relevantly it was the right thumb, bilateral little fingers, left upper extremity wrist did not form part of the assessment conducted by Dr David McGrath. Age: 69. Height: 5 feet 2 inches. The right shoulder was the worst affected area she said. There was operation by Dr Bateman namely an arthroscopic decompression right shoulder which had helped symptomatically she said.
Occupation History: She worked in administration with NSW Police for 14 years.

History of Injury: At the workplace, she fell down a flight of stairs on date of injury, 12 November 1997. There had been four operations on the right knee. There had been a neck sprain she said.
2. Additional history since the original medical assessment certificate was performed.
There was no additional history.

For the right ankle, Dr Martin Sullivan had undertaken four operations involving bone grafts from the right posterior iliac crest to the midfoot, reference right ankle impairment, AMA5, page 537, table 17-11, ankle impairment motion restriction and table 17-12 hindfoot impairment restriction, i.e., there is restricted range of motion at ankle and hindfoot.
2. FINDINGS ON PHYSICAL EXAMINATION
There is measurable restriction in range of motion right wrist and right shoulder and right ankle and hindfoot.
On examination, there was full range of motion of both elbows, left wrist, and left shoulder. There was a history of a ligament tear at the distal right ulnar at the right wrist. Right wrist palmar flexion 30 degrees, extension 40 degrees.
Right Wrist
Reference AMA5, page 467 to 469, figure 16-28 to figure 16-31

Right Wrist Range of Motion UEI

Palmar flexion 30° 5%

Dorsiflexion 40° 4%

Radial Deviation 5° 3%

Ulnar Deviation 10° 4%
At right wrist by addition there is 16% UEI.

Right Shoulder Range of Motion UEI

Abduction 90° 4%

Adduction 10° 1%

Flexion 100° 5% (F16-40)

Extension 60° 0%

External rotation 30° 1%

Internal rotation 70° 1% (F 16-46)
At right shoulder there is 12% UEI.

By addition, there is a 16% upper extremity impairment right wrist, which combine to the 12% upper extremity impairment right shoulder. Reference page 604, combined values chart. Combination of 16 with 12 gain 26% UEI which converts to 16 % WPI.
Examination of the right ankle and right hindfoot

Right Ankle Range of Motion LEI

Extension 10 - 0° (Neutral) 7%

Plantar flexion 20° 7%

Right Hindfoot

Inversion 20° 2%

Eversion 0° 2%
Refer AMA 5. Page 537, Table 17-11 right ankle and Table 17-12, Page 537 right hindfoot.
By addition right ankle and hindfoot equal 18% LEI which converts to 7% WPI.
3. DETAILS AND DATES OF FURTHER SPECIAL INVESTIGATIONS
There was no additional radiology.
The scarring is 1% WPI.

The Appeal Panel adopts the report and findings of Medical Assessor Stephenson. The Appeal Panel assesses the appellant as having 26% right UEI which converts to 16% WPI of the right upper extremity, and 18% right LEI which converts to 7% WPI. The Appeal Panel found no deterioration in the left lower extremity or scarring so those assessments remain at 2% WPI for the left lower extremity and 1% WPI for scarring (TEMSKI). Therefore, 16% WPI is combined with 7% WPI which produces 22% WPI which is combined with 2% WPI which produces 24% WPI and then 1% WPI to result in 25% WPI.
The Appeal Panel therefore assesses 25% WPI as a result of the injury on
12 November 1997.
For these reasons, the Appeal Panel determines that the MAC issued on 30 January 2018 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:	6637/17
Applicant:	Maria Wright
Respondent:	State of NSW (NSW Police Force – Special Operations Command)

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 Dr David McGrath 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	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
1. Right upper extremity wrist & shoulder	12 November 1997	Chapter2, Page 10-12	Chapter 16, Page 467 – 469, Figure 16-18 – Figure 16-31	16%	0%	16%
2. Right lower extremity ankle and hindfoot	12 November 1997	Page 537	Chapter 17, Table 17-11, Table 17-12	7%	0%	7%
3. Left lower extremity knee	12 November 1997	Chapter 3, Page 13-23	Chapter 17, Page 537, Table 17-10	2%	0%	2%
4. Scar Temski	12 November 1997	Chapter 14, Page 74, Table 14.1	Chapter 8	1%	0	1%
Total % WPI (the Cmbined Table values of all sub-totals)					25%

Right Wrist	Range of Motion	UEI
Palmar flexion	30°	5%
Dorsiflexion	40°	4%
Radial Deviation	5°	3%
Ulnar Deviation	10°	4%

Right Shoulder	Range of Motion	UEI
Abduction	90°	4%
Adduction	10°	1%
Flexion	100°	5% (F16-40)
Extension	60°	0%
External rotation	30°	1%
Internal rotation	70°	1% (F 16-46)

Right Ankle	Range of Motion	LEI
Extension	10 - 0° (Neutral)	7%
Plantar flexion	20°	7%
Right Hindfoot
Inversion	20°	2%
Eversion	0°	2%

[2024] NSWPICMP 551

8 August 2024