Xing Xing Construction Pty Ltd v Wang

DETERMINATION OF APPEAL PANEL
CITATION:	Xing Xing Construction Pty Ltd v Wang [2024] NSWPICMP 223
APPELLANT:	Xing Xing Constructions Pty Ltd
RESPONDENT:	Yu-Hsiang Wang
APPELLANT:	Yu-Hsiang Wang
RESPONDENT:	Xing Xing Constructions Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	15 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against decision of lead assessor in respect of error in combining the two assessments, error in assessing impairment of the right thumb, and error in assessing scarring; employer submitted that because of the errors made by the lead assessor, the assessment of the non-lead assessor, who had assessed all body parts not just the digestive system which had been referred to him for assessment, should be preferred; Panel found error in combining the two assessments and error in assessing impairment of the right thumb; no error in assessment of scarring; Panel rejected the submission that the assessment of the non-lead assessor should be accepted; cross-appeal by worker against assessment of non-lead assessor of the digestive system; Panel accepted error in deduction under section 323 for subsequent injury; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 December 2023, Xing Xing Constructions Pty Ltd (Xing Xing) lodged an Application to Appeal Against the Decision of a Medical Assessor (Matter No M1-W2930/23). The medical dispute was assessed by Dr John Brian Stephenson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 November 2023.
Xing Xing 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.
On 1 February 2024 Yu-Hsiang Wang (Mr Wang) lodged an Application to Appeal Against the Decision of a Medical Assessor (Matter No M2 -W2930/23). The medical dispute was assessed by Dr Truskett, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 November 2023.
Mr Wang 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 in both applications. The delegate ordered that the matters ought to proceed to a Medical Appeal Panel pursuant to s 327(4) of the 1998 Act for determination concurrently.
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

Mr Wang lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 27 April 2023 in which he claimed 21% whole person impairment (WPI) of the right upper extremity, 2% WPI for scarring (TEMSKI) and 6% WPI for the digestive system.
In the Certificate of Determination – Consent Orders dated 21 June 2023, the following orders were:
“2. The matter is remitted to the President for referral to Medical Assessors for assessment of permanent impairment as a result of injury to the right upper extremity (including hand and wrist), scarring (TEMSKI), and the digestive system (upper and lower gastrointestinal tract) as a result of injury on 3 March 2016.
3. The Medical Assessor who assesses injury to the right upper extremity (including hand and wrist) and scarring (TEMSKI) is to act as the lead assessor.”
The matter was referred to the lead Medical Assessor, Dr Stephenson, (Lead Medical Assessor) on 22 June 2023 for assessment of WPI of the right upper extremity (hand and wrist) and scarring and to Medical Assessor, Dr Phillip Truskett, (Medical Assessor Truskett) on 22 June 2023 for assessment of WPI the digestive system (upper and lower gastrointestinal tract).
The lead Medical Assessor examined Mr Wang on 16 August 2023 and assessed 25% WPI of the the right upper extremity. He then added 8% WPI for the digestive tract which was assessed by Medical Assessor Truskett and 1% for scarring that was assessed by Medical Assessor Truskett. This resulted in a combined total of 32% WPI as a result of the injuries on 3 March 2016.
Medical Assessor Truskett examined Mr Wang on 7 August 2023 and assessed 8% WPI of the the right hand, 1% for scarring, 2% of the upper digestive tract and 0% of the lower digestive tract. He then deducted 100% from the assessment of the upper digestive tract pursuant to s 323. This resulted in a combined total of 9% WPI as a result of the injuries on 3 March 2016.

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 Mr Wang 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 Assessors for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificates

The parts of the medical certificate given by the lead Medical Assessor and Medical Assessor Truskett 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.

Submissions in M1-W2930/23

Xing Xing’s submissions include the following:
(a)    the Lead Medical Assessor erred in combining the assessments by him and Medical Assessor Truskett. The Lead Medical Assessor made an error in his calculation of the combined impairments in the “Consolidated Medical Assessment Certificate”, indicating Medical Assessor Truskett assessed 8% for the digestive tract when in fact it was 0% (8% being the hand). The combined assessment should accordingly have been calculated by the Lead Medical Assessor in his table as 26% WPI, not 32% WPI;
(b)    the Lead Medical Assessor erred in his calculation of upper extremity (right hand and wrist) impairment. Referring to the worksheet attached to the MAC of the Lead Medical Assessor and Chapter 16 of AMA5: (i) Thumb interphalangeal (IP) joint – the Lead Medical Assessor assessed 90 degrees flexion and 0 degrees extension, which by reference to Table 16-12 (pg. 456 AMA5) equates to 1% thumb impairment (IP joint); (ii)Thumb metacarpophalangeal (MP) joint – the Lead Medical Assessor assessed 40 degrees flexion and 0 degrees extension, which by reference to Table 16-15 (p 457 AMA 5) equates to 2% thumb impairment (MP joint). Therefore, the Lead Medical Assessor incorrectly calculated 7% for the thumb MP joint;
(c)    given the errors in the MAC of the Lead Medical Assessor it should be revoked and in its place the assessment of Medical Assessor Truskett should be confirmed in a fresh MAC in respect of the right upper extremity, upper and lower digestive system, and scarring;
(d)    the Lead Medical Assessor has erred in his assessment of scarring. The Lead Medical Assessor provided an assessment of 2% for scarring under TEMSKI. Medical Assessor Truskett provided an assessment of 1% for scarring under TEMSKI. The Appellant submits that the assessment of Medical Assessor Truskett should be preferred.
(e)    in accordance with the Guidelines (14.6, pg. 73) uncomplicated surgical scars for standard surgical procedures do not, of themselves, rate an impairment. Despite this, Medical Assessor Truskett found a 1% impairment appropriate based on his examination findings;
(f)    this 1% WPI is the maximum which should have been assessed for the surgical scarring. The Lead Medical Assessor erred in assessing 2% WPI in circumstances where the criteria were not met under TEMSKI, including that there was no explanation as to the manner in which the surgical scarring has caused “minor limitation in the performance of few ADL”, as is required, and
(g)    there are a number of errors in the Lead Medical Assessor’s MAC. It should accordingly be revoked and replaced with the assessment of Medical Assessor Truskett contained in his MAC dated 8 November 2023 of 9% WPI (8% right upper extremity, 1% scarring, 0% upper digestive tract, 0% lower digestive tract).
Mr Wang’s submissions included the following:
(a)    Mr Wang concedes that the Lead Medical Assessor erred in combining the assessments of his own and that of Medical Assessor Truskett. The correct combining of the assessments in accordance with the Combined Values Chart based on the MACs of the Lead Medical Assessor and Medical Assessor Truskett should be 27% WPI and not 32%WPI;
(b)    the Lead Medical Assessor did not err in the calculation of the upper extremity;
(c)    there is no error in the assessment by the Lead Medical Assessor relating to scarring, and
(d)    the assessment of the right upper extremity and scarring provided in the MAC of Medical Assessor Truskett dated 8 November 2023 should be disregarded completely by the Appeal Panel. Medical Assessor Truskett was not appointed to assess the orthopaedic injuries and scarring and was only referred to for the purposes of the assessment in relation to the digestive system, being the upper and lower gastrointestinal tract, as a result of the injury of 3 March 2016.

Submissions in M2-W2930/23

Mr Wang’s submissions include the following:
(a)    the Medical Assessor Truskett erred in failing to correctly apportion the impairment rating regarding the upper digestive tract disease in which he had given 2% WPI;
(b)    Mr Wang had sustained two significant injuries both to the right-upper extremity on 3 March 2016, which forms part of this claim, and thereafter to the lumbar spine, being the injury of 30 November 2016, which does not form part of this claim. The use of medication was for both of the injuries;
(c)    any allocation of impairment regarding the digestive system cannot be applied solely to one of the injuries without the other. It should be apportioned equally between both of the injuries. Medical Assessor Truskett’s opinion in his MAC that the impairment of 2% WPI for the upper digestive tract is only due to medication relating to the back injury, is not in line with the medical history of Mr Wang, and
(d)    Medical Assessor Truskett does not give any explanation as to how the entire impairment was allocated to one of the injuries and not the other.
The Xing Xing’s submissions included the following:
(a)    Xing Xing submits Mr Wang’s submissions fail to establish a demonstrable error, because the submissions refer to ‘difference in opinion’ rather than addressing absence of information to support the findings made by the Medical Assessor Truskett.
(b)    Medical Assessor Truskett does give an explanation as to how the entire impairment of the digestive system was allocated to one of the injuries and not the other (i.e. the back injury and not the wrist injury) and provides the following detailed reasoning.
(c)    Medical Assessor Truskett has, as required by s 319(c) of the 1998 Act, appropriately assessed the degree of permanent impairment of Mr Wang as a result of the subject injury on 3 March 2016 to the exclusion of unrelated impairment he concluded resulted from the intervening injury on 30 November 2016.

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.

M1-W2930/23

Error in combining the assessments by the Lead Medical Assessor and Medical Assessor Truskett

Xing Xing submits that the Lead Medical Assessor erred in combining the assessments by him and Medical Assessor Truskett. The Lead Medical Assessor indicated that Medical Assessor Truskett assessed 8% for the digestive tract when in fact it was 0%. The combined assessment should accordingly have been calculated by the Lead Medical Assessor in his Table as 26% WPI, not 32% WPI.
Mr Wang concedes that the Lead Medical Assessor erred in combining the assessments of his own and that of Medical Assessor Truskett. Mr Wang submitted that the correct combining of the assessments in accordance with the Combined Values Chart based on the MACs of the Lead Medical Assessor and Medical Assessor Truskett should be 27% WPI and not 32%WPI.
The Appeal Panel noted that both parties accepted that the Lead Medical Assessor had erred in combining the assessments by him and Medical Assessor Truskett and the assessment of 8% WPI for the digestive system should not have been included in the calculation of WPI. However, Xing Xing submitted that the correct figure should be 26% WPI while Mr Wang submitted that the correct figure should be 27% WPI.
The Appeal Panel accepts that the Lead Medical Assessor erred in combining the assessments by him and Medical Assessor Truskett. The Appeal Panel calculated the correct total as being 27% WPI if scarring was assessed at 2% WPI, as assessed by the Lead Medical Asessor in his MAC.

Error in calculation of upper extremity (right hand and wrist) impairment – thumb MP joint

Xing Xing submitted that the Lead Medical Assessor erred in his calculation of upper extremity (right hand and wrist) impairment and incorrectly calculated 7% thumb impairment for the thumb MP joint.
Xing Xing noted that referring to the worksheet attached to the MAC of the Lead Medical Assessor and Chapter 16 of AMA 5 in relation to the thumb IP joint, the Lead Medical Assessor assessed 90 degrees flexion and 0 degrees extension, which by reference to Tablei 16-12 (p 456 AMA 5) equates to 1% thumb impairment (IP joint). In relation to the thumb MP joint, the Lead Medical Assessor assessed 40 degrees flexion and 0 degrees extension, which by reference to Table 16-15 (p 457 AMA 5) equates to 2% thumb impairment (MP joint). Therefore, the Lead Medical Assessor incorrectly calculated 7% for the thumb MP joint.
The Appeal Panel noted that the Lead Medical Assessor under “Findings on Physical Examination” in the MAC wrote:
“There is restriction in range of motion of the hand and at the wrist. The right wrist, reference AMA5, page 469, figure 16-31, and page 472, figure 16-34. Right wrist palmar flexion 40 degrees, 3% upper extremity. Dorsiflexion (extension) 30 degrees, 5% upper extremity. Radial deviation 10 degrees, 2% upper extremity. Ulnar deviation 40 degrees, 0%. By addition, there is a 10% upper extremity impairment of right wrist.
That combines with value from the upper extremity impairment evaluation record figure 16-1a of page 436, AMA5. In terms of the regional impairment, right thumb IP flexion 90 degrees, 0% digit. Extension 0 degrees, 1% digit. MP joint flexion 40 degrees, 2% digit. Extension 0 degrees. Staying with the thumb I found by addition 8% digit impairment for the metacarpophalangeal and interphalangeal joints. These are further added as follows: Carpometacarpal joint (CMC), radial abduction angle 40 degrees equals 2% digit. Adduction distance 1 cm equals 0%. At the thumb, there is 8% digit impairment for IP and MP joint, then adds to the CMC joint at 7%. The combination of 8 with 7 gains 15% digit impairment for the thumb. For the range of 14% to 16%, there was a 6% hand. For the index, middle, ring and little fingers, the following I found: Distal interphalangeal joint, flexion 30 degrees is 21% digit. PIP joint flexion 90 degrees, 6% digit. MP joint 70 degrees, 11% digit. With extension of the MP 0 gaining 5% digit. Total 16% digit. The combination of 21 with 16 with 6 gains 38% digit for each of those four value of fingers, which then convert to hand impairment at index and middle fingers of 8% and ring and little fingers of 4%. We then add the hand impairment, thumb, index, middle, ring and little finger, which is an addition of 6 with 8 with 8 with 4 with 4 gaining 38% total digit impairment. The values single out for index and middle each at 8% hand and ring and little fingers each at 4% hand. We then add those values, and number 38 comes up again with the addition of 6 with 8 with 8 with 4 with 4. Then, 38% hand converts to region of impairment 34%. The above mentioned digits are in reference to figure 16-1a, page 436, AMA5. We then move to figure 16-1b at page 437. For the wrist, we found 10% regional impairment and for the right hand we found 34% upper extremity impairment. At figure 16-1b, the regional impairment of the upper extremity is found by combining 34% upper extremity for hand with 10% upper extremity for wrist. Combination of 34 with 10 gains 41% upper extremity, gains 25% WPI, which combines 2% WPI for TEMSKI table scarring gaining 27% WPI”.
The Appeal Panel accepts that the Lead Medical Assessor erred in his assessment of the MP joint. The Lead Medical Assessor found “MP joint flexion 40 degrees, 2% digit. Extension 0 degrees”. The Appeal Panel accepts that by reference to Table 16-15 (p 457 AMA 5) this equates to 2% thumb impairment of the MP joint, not 7% as calculated by the Lead Medical Assessor. Therefore, the digit impairment for the MP and IP joints is 2% (MP joint) plus 1% (IP joint) and this adds up to 3% thumb impairment.
The Lead Medical Assessor also calculated 7% for the thumb carpometacarpal (CMC) joint. Therefore, the digit impairment can be added as follows: CMC 7% + MP 2% + IP 1% which equates to 4% hand impairment. The Appeal Panel agreed with Xing Xing that the Lead Medical Assessor by incorrectly assessing 7% thumb impairment of the MP joint made a demonstrable error and the assessment was made on the basis of incorrect criteria.
The Appeal Panel agree with Xing Xing that the total hand impairment should therefore be 28%, which equates to 25% upper extremity impairment (UEI). This is combined with the assessment of 10% UEI for the wrist to give a total of 33% UEI equating to 20% WPI.

Assessment of Medical Assessor Truskett should be confirmed in a fresh MAC in respect of the right upper extremity, upper and lower digestive system, and scarring

Xing Xing submitted that given the errors in the MAC of the Lead Medical Assessor, it should be revoked and in its place the assessment of Medical Assessor Truskett should be confirmed in a fresh MAC in respect of the right upper extremity, upper and lower digestive system, and scarring.

Mr Wang submitted that the assessment of the right upper extremity and scarring provided in the MAC of Medical Assessor Truskett dated 8 November 2023 should be disregarded completely by the Appeal Panel. Mr Wang submitted that Medical Assessor Truskett was not appointed to assess the orthopaedic injuries and scarring and the only dispute referred to him for assessment was in relation to the digestive system, being the upper and lower gastrointestinal tract, as a result of the injury of 3 March 2016.
Mr Wang also argued that he had attended the assessment by Medical Assessor Truskett for the purpose of an examination in relation to his digestive system and found the requests made by Medical Assessor Truskett confusing and out of line with what was expected in the examination. Mr Wang submitted that Medical Assessor Truskett had not only erred in providing an opinion in relation to the upper right extremity and scarring when he should not have done so, but he had erred in failing to apportion the impairment rating regarding the upper digestive tract disease of which he had given 2% WPI.
The Amended Referral for Assessment of Permanent Impairment to Medical Assessor dated 22 June 2023 set out the following arrangements:
“The President’s Delegate has chosen Medical Assessor (s321(2)):
Lead assessor – Dr John Brian Stephenson
To assess - Right upper extremity (hand and wrist), scarring (TEMSKI)
Non lead assessor - Dr Phillip Truskett
To assess - Digestive system (upper and lower gastrointestinal tract)”.
It appears that neither party objected to the appointment of these Medical Assessors or took issue with the body parts that each medical assessor was required to assess.
The Appeal Panel concludes that the assessment of the right upper extremity and scarring by Medical Assessor Truskett were clearly outside the scope of the referral. On that basis the Appeal Panel will disregard the assessment the right upper extremity and scarring by Medical Assessor Truskett.
The Appeal Panel rejects Xing Xing’s submission that the MAC of the Lead Medical Assessor should be revoked and in its place the assessment of Medical Assessor Truskett should be confirmed in a fresh MAC in respect of the right upper extremity, upper and lower digestive system, and scarring. While the Lead Medical Assessor made errors in respect of combining his assessment with the assessments of Medical Assessor Truskett and in calculating the thumb impairment for the thumb MP joint, these are matters that the Appeal Panel can easily address and correct.

Error in assessment of scarring

Xing Xing submitted that the Lead Medical Assessor erred in his assessment of scarring, noting that the Lead Medical Assessor provided an assessment of 2% for scarring under TEMSKI but Medical Assessor Truskett provided an assessment of 1% for scarring under TEMSKI. Xing Xing submits that the assessment of Medical Assessor Truskett should be preferred.
For the reasons given above, the assessment by Medical Assessor Truscutt has been disregarded since that assessment was outside the scope of the referral.
The Appeal Panel reviewed the evidence in respect of scarring.
The Lead Medical Assessor made the following findings on physical examination:
“For scarring, I found the best fit for the TEMSKI table, page 74, WorkCover Guidelines. There was a 2% WPI as follows.
• Claimant conscious of scars.
• Notable colour contrast of scar with surrounding skin as a result of pigmentary changes.
• Claimant able to easily locate scars.
• Trophic changes evident to touch.
• Any staple/suture marks are clearly visible.
• Anatomic location of the scar is easily visible with usual clothing style.
• Contour defect visible.
•Minor limitation in performance of few ADLs.
• No treatment or intermittent treatment only required.
• No adherence.
Conclusion: 2% WPI”.
The Lead Medical Assessor noted that Mr Wang underwent surgery on the right hand on 26 May 2016, 4 October 2016 and 21 February 2017.
Associate Professor Gumley in his report dated 27 September 2021 noted: “His hand demonstrates a 5-6 cm longitudinal scar of the dorsum of the fourth metacarpal. This is spread and has visible suture lines. It is not hypertrophic but has a notable colour change”.
Associate Professor Gumley wrote: “With reference to the TEMSKI Table, Table 14.1 on Page 74, a 2% addition should be made due to the scarring of the dorsum of his right hand previously noted”.
Dr Bosenquet in his report dated 24 December 2020 noted: “In his right hand there was a dorsal spreading scar measuring 6cm over the 4^th metacarpal. This was tender.” Dr Bosenquet made no assessment for scarring.
Paragraph 14.8 of the Guidelines provides:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories”.
The Appeal Panel noted that the Lead Medical Assessor had considered and made findings in respect of all of the criteria in Table 14.1 of the Guidelines. Table 14.1 uses the principle of “best fit” and the Appeal Panel was satisfied that the Lead Medical Assessor assessed impairment of the whole skin system against each criteria and then determined which impairment category best fits, that being 2% WPI. The Appeal Panel considered that the Lead Medical Assessor found that the scar met all of the criteria within the 2% impairment category and therefore was not required to provide more detailed reasons for why this category was chosen over other categories.
The Appeal Panel finds that the Lead Medical Assessor made no error in repect of the assessment of scarring and the assessment was not made on the basis of incorrect criteria.

M2-W2930/23

Assessment of digestive tract

Mr Wang submitted that Medical Assessor Truskett erred in failing to correctly apportion the impairment rating regarding the upper digestive tract disease in which he had given 2% WPI.
Medical Assessor Truskett, under “ History relating to the injury”, noted:
“He also developed gastrointestinal symptoms. He believes this is the result of medications. He developed these symptoms some six months after his second injury. This related to gastro-oesophageal reflux and constipation and occasional rectal bleed. He was initially referred to Dr James Toh (Colorectal Surgeon) by his Spinal Surgeon, Dr Rao, on 3 August 2018 because of PR bleeding following the laminectomy.
From a letter from Dr Toh to Dr Alan Wong (GP of Eastwood) he stated that Mr Wang had recently undergone a gastroscopy and colonoscopy and banding of haemorrhoids. He said on gastroscopy he had an ulcer with erosions in the stomach. He makes no mention of the colonoscopy.
There is a histology report dated 22 September 2020 reported by Dr Robin Levington stating that he biopsy at the cardio-oesophageal junction showed no abnormality. Gastric body biopsy showed erosive gastritis with no Helicobacter identified. The antral biopsy was normal. Duodenal biopsy was normal and a sigmoid polyp was removed that showed a hyperplastic polyp. Presumably the mucosa of the colon was normal as it was not biopsied.
He has undergone no further investigations”.
At page 5 of the MAC under “Present Treatment” Medical Assessor Truskett lists the Mr Wang’s medications:
“Mr Wang takes the following medication:
·Nexium 40mg 2 daily since 2017 (proton pump inhibitor).
·Oxycodone 10mg / 5mg 2 daily since 2016 for his right hand.
·Meloxicam 7.5mg 2 per day since 2017 for his back (non-steroidal antiinflammatant).
·Lyrica 150mg 2 per day since 2016 for his back and hand (pain modulator).
·Agomelatine 25mg one daily for one month (antidepressant).
·Quetiapine 25mg for sleep for one month (antidepressant).
·Sertraline 100mg 2 per day since November 2016 (antidepressant).”
Under “Present Symptoms” Medical Assessor Truskett wrote:
“Gastrointestinal tract
He said that he has vomited blood on five occasions in 2022 and 2023 but did not go to hospital. He may vomit 2-3 times per week. He has some difficulty swallowing which commenced in 2018 and states he would swallow purees in order to avoid vomiting. His weight remains approximately 71kg but did reduce to 61kg for reasons that are not clear and he has now returned to normal. He describes epigastric pain which is cramping in nature which will occur 2-3 times per week and will last for 30 minutes. He will open his bowels once per day. This can be watery but also as constipation from time to time. His changing bowel habit has been since his surgery in 2018. Before this, he had normal motions. His PR bleeding also began at that time”.
Medical Assessor Truskett made a diagnosis of erosive gastritis “as a result most likely of ingestion of non-steroidal anti-inflammatant medications. This would appear to have occurred after his back injury according to his history”.
Under “Evaluation of Permanent Impairment”, Medical Assessor Truskett wrote:
“From history today and review of documentation, he describes gastrointestinal bleeding and gastritis. This is a consequence of non-steroidal anti-inflammatant medication which has been a consequence of the subsequent back injury. His endoscopic findings of gastritis would therefore relate to the subsequent injury of 30 November 2016 and not a consequence of his injury of 3 March 2016. This is based on onset of symptoms and endoscopy findings. In addition, he has symptoms and signs consistent with irritable bowel syndrome which is fluctuating diarrhoea and constipation. This again is historically based from after his back surgery and appears not to relate to the injury of 3 March 2016 and would appear to be a subsequent diagnosis.”
Under “Reasons for Assessment”, Medical Assessor Truskett wrote:
“Upper digestive tract
Reference is made to the Workcover Guide, chapter 16, section 16.9 and AMA5, Table 6-3, page 121 which is instructed to read t’here are symptoms and signs of digestive tract disease’. He does demonstrate anatomic loss due to gastric erosions from non-steroidal antiinflammatant medication. He would be considered Class I and 2% whole person impairment as there are symptoms and signs of upper digestive tract disease. By way of deductions this is fully deducted as this is a consequential injury as a result of his subsequent back injury as described.
Lower digestive tract
He has irritable bowel syndrome with alternating constipation and diarrhoea.
Reference is made to the Workcover Guide, paragraph 16.9, page 78 which states that irritable bowel syndrome without objective evidence of colorectal disease is to be assessed as 0% whole person impairment.
As described previously the onset of these symptoms are a consequence of his back injury and subsequent spinal surgery. This therefore is fully deducted.”
In commenting on the other medical opinions, Medical Assessor Truskett wrote:
“Medicolegal report of Dr Sidarth Sethi (Gastrologist) dated 7 October 2022. In essence, he states that the upper digestive tract and lower digestive tract complaints developed a long time after his injury. He therefore feels they are not related. I have a similar view although I believe his upper digestive tract pathology relates to the use of non-steroidal anti-inflammatants which occurred in relation to has subsequent back injury and he states to me the persistence of use of non-steroidals relate to his back. I also believe he suffers from irritable bowel syndrome which is addressed by the NSW Workcover Guides being 0% whole person impairment. I believe this follows his spinal surgery and is unrelated as I have stated.
…
Medicolegal report by Dr Anthony Greenberg (General Surgeon) dated 5 July 2022. He made a gastrointestinal assessment only. He assessed Mr Wang as having a 3% whole person impairment in relation to his upper digestive tract and 3% whole person impairment relating to his lower digestive tract. In relation to the upper digestive tract he assessed him as Class I but did not note that his ongoing use of non-steroidal anti-inflammatants relate to his back injury and not his hand injury which in my view is key to the assessment in relation to the injury of 30 November 2016 as it is a subsequent injury and should not be included. He describes his lower digestive tract injury is due to loss of mobility. In so doing he has not followed the guidelines outlined by NSW Workcover Guide in relation to opioid analgesics. Mr Wang does not exhibit symptoms and signs in addition as outlined by Table 6-4, page 128 of AMA5 that Dr Greenberg quotes”.
In Table 2 attached to the MAC, Medical Assessor Truskett made a “deduction” pursuant to s 323 for pre-existing injury, condition or abnormality in respect of his assessment of impairment of the upper digestive tract.
Medical Assessor Truskett made a deduction under s 323 of the 1998 Act in respect of a subsequent injury. A deduction can only be made under s 323 in respect of a pre-existing injury, condition, or abnormality. Therefore, the making of a deduction under sc323 was an error.
The Appeal Panel reviewed the evidence in this matter.
There is no dispute concerning Medical Assessor Truskett’s opinion that the use of medication had led to the impairment of 2% WPI. The Appeal Panel agrees with the assessment of 2%WPI for the upper gastrointestinal tract.
Dr John Bosanquet, in a report dated 17 January 2022, wrote: “This man is having strong analgesics in the form of Targin and Endone. It is difficult to know whether this is due to the injury to his back or his hand.”
Dr Greenberg, in his report dated 5 July 2022, noted that Mr Wang’s current medication regimen is a result of his work-related injuries. Dr Greenberg wrote: “It is my understanding he has required medication for pain relief since the first injury on 3 March 2016 and the second on 30 November 2016”. Dr Greenberg applied the percentage apportionment 50/50 attributable to both injuries.
The clinical notes and records from Burwood Medical Practice record that Mr Wang was prescribed Panadeine Forte tablets 500mg on 10 August 2016, Voltaren Rapid tablet 50mg on 17 October 2016 and Voltaren EC tablet 50mg on 16 November 2016. In an entry dated 17 October 2016, Dr Kevin Meng-Seng Tai noted that Mr Wang was “taking strong analgesic post-op.” On 21 October 2016, Dr Tai noted that Mr Wang “feels back sore after side effects of strong analgesis (Codeine Forte - left over from first surgery) causing him to sleep long periods”.
The Appeal Panel agreed with Dr Greenberg that Mr Wang had required medication for pain since the injury on 3 March 2016.
Medical Assessor Truskett expressed the view that the gastritis is a consequence of non-steroidal anti-inflammatant medication which was a consequence of the subsequent back injury, based on onset of symptoms and endoscopy findings. However, it is clear that Mr Wang was taking non-steroidal anti-inflammatant medication before the back injury on 30 November 2016.
The Appeal Panel considered that the onset of symptoms varied in patients and the fact the onset appeared to be six months after the back injury was not derminative of causation. Further, the Appeal Panel considered that there could have been a gradual build up of symptoms over a period of time, as Mr Wang was ingesting various medications including Voltarin, Panadeine Forte, Celebrex, Mobic and Codiene Forte.
The Appeal Panel are satisfied that Mr Wang took non-steroidal anti-inflammatant medication for both the injury to the right upper extremity on 3 March 2017 and for his back injury on 30 November 2016. It is not possible, in the view of the Appeal Panel, to determine whether the need for non-steroidal anti-inflammatant medication related to the right hand injury or to the back injury. Mr Wang had three operations to his right hand, which has become more painful and stiff. He still suffers pain in the right hand and takes medication to alleviate that pain. In these circumstances, the Appeal Panel does not regard it possible to apportion all of the impairment of the upper gastrointestinal tract to the back injury or even between the injuries. It is not possible to disentangle to what extent the ingestion of non-steroidal anti-inflammatant medication related to the right hand injury or to the back injury, particularly as the injuries occurred some considerable time ago in 2017. In those circumstances, the Appeal Panel makes no reduction in the assessment of 2% WPI for the digestive system (upper gastrointestinal tract).

Summary

The Appel Panel determined:
(a)    the Lead Medical Assessor erred in combining the assessments by him and Medical Assessoror Truskett and that the correct total would have been 27% WPI assumimg impairment for scarring was assessed as being 2% WPI;
(b)    the Lead Medical Assessor erred in his assessment of the MP joint of the right thumb and therefore the assessment by the Appeal Panel of impairment in the right upper extremity is 20% WPI;
(c)    there is no error in the Lead Medical Assessor’s assessment of impairment from scaring of 2% WPI, and
(d)    Medical Assessor Truskett erred in his assessment of the upper gastrointestinal tract and the Appeal Panel assessed 2% WPI in respect of the upper gastrointestinal tract.
Therefore, the total WPI is calculated by combing 20% WPI for the right upper extremity with 2% WPI for scarring and then 2% WPI for the upper gastrointestinal tract. This produces 24% WPI as a result of the injury on 3 June 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 November 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:	W2930/23
Applicant:	Yu-Hsiang Wang
Respondent:	Xing Xing Constructions Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Lead Medical Assessor Stephenson 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	3 March 2016	Ch 2 pp 10-12	Ch 16 p 439 Table 16-3 P 469 Fig 16-31	20%	0%	20%
2.Digestive Tract	3 March 2016	Ch 16 Section 16.9	P 121 Table 16-3	2%	0%	2%
3.Skin	3 March 2016	Ch 14 P 74	2%	0%	2%
Total % WPI (the Combined Table values of all sub-totals)					24%

[2024] NSWPICMP 223

15 April 2024