Yu v Vertex Point Pty Ltd
[2025] NSWPICMP 343
•15 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Yu v Vertex Point Pty Ltd [2025] NSWPICMP 343 |
| APPELLANT: | Guo Yu |
| RESPONDENT: | Vertex Point Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 15 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); injury to ankle resulting in four operations including subtalar fusion; limited medical evidence in file; assessment of range of motion and subtalar fusion; grading of peripheral nerve injury; Held – MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 February 2025 Guo Yu lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 9 January 2025.
Mr Yu relies on the grounds of appeal under s 327(3)(a), (c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of his condition that results in an increase in the degree of permanent impairment;
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
Mr Yu sought to rely on s 327(3)(a) in respect of alopecia. The delegate declined to refer that aspect of the appeal because it did not form part of the referral to the Medical Assessor. The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made and referred to us.
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
Mr Yu was employed by Vertex Point Pty Ltd (Vertex) as a painter. On 16 April 2020, he was working on a ladder, when he fell 4m to the ground, suffering an injury to his left ankle. He underwent four operations over the following two and a half years, the first two performed by Dr Suzuki and the latter two by Dr Kao.
The medical evidence in the file is limited and does not include documents from Dr Kao or the contemporaneous radiological reports. Those documents were reviewed by Dr Habib, who saw Mr Yu at the request of his solicitors, and Dr Waller, who examined him on behalf of Vertex.
The Medical Assessor assessed 9% whole person impairment (WPI) in respect of Mr Yu’s left lower extremity and 2% for scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI). He combined those figures to reach 11% WPI.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr Yu to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
Deterioration and fresh evidence
Mr Yu sought to rely on material which had been provided to his solicitor since the date of the medical assessment to argue that there had been a deterioration in his condition and that there was a connection between the injury and the development of alopecia. Vertex opposed that ground of appeal and it has not been referred to us.
In the absence of a claim for the relevant compensation, we agree that the question of deterioration cannot be considered on appeal.[1] We have therefore not considered the new evidence or the ground of appeal under s 327(3)(a).
[1] Aircons Pty Ltd v Registrar of the Workers Compensation Commission [2006] NSWSC 322; O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, [84].
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by Mr Daley of counsel, Mr Yu submitted that the Medical Assessor’s assessment was based on an incorrect assumption that he had not undergone a subtalar fusion. He said that the Medical Assessor assessed impairment using the range of motion and making an allowance for impairment of the superficial peroneal nerve and adding 2% under the TEMSKI for scarring. Mr Yu said that the Medical Assessor should have made an allowance for a subtalar fusion and assessed, at a minimum, 15% WPI.
Mr Yu also submitted that the Medical Assessor was in error to reduce the assessment in respect of the superficial peroneal nerve to 3% lower extremity impairment (LEI) in the absence of reasoning. He also submitted that the Medical Assessor made an arithmetical error in his assessment of total LEI.
In reply, Vertex submitted that the orthopaedic surgeons retained for the parties had used different methods of assessment and that the Medical Assessor provided reasons for the difference between his own assessment and those relied on by the parties. Vertex said that there was insufficient evidence to allow the Medical Assessor to conclude that Mr Yu had undergone an ankle fusion.
Vertex said that it was open to the Medical Assessor to grade the impairment of the superficial peroneal nerve at 3% and there was no error in the Medical Assessor’s overall assessment of WPI.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].
The MAC
The MAC is brief and the Medical Assessor has not set out his examination findings in detail. In describing the treatment Mr Yu underwent, the Medical Assessor said only:
“…He went on to have open reduction and internal fixation of his talar neck and lateral calcaneal process. Subsequently, he went on to have three further procedures on his ankle. The records would suggest that they were removal of instrumentation from the talar neck, thence peroneal synovectomy as the removal of the calcaneal hardware.”
Describing Mr Yu’s present symptoms, the Medical Assessor said:
“He continues to have pain in his ankle over the top of his ankle, the sole of his foot and both sides. Walking is restricted to 100m with a stick. His ankle swells if he walks any longer distances. He gets numbness over the dorsum of his foot.”
The Medical Assessor set out the range of motion of Mr Yu’s ankles. His only other finding on examination was that “[t]here was a sensory deficit over the dorsum of the foot consistent with injury to the superficial peroneal nerve.” The Medical Assessor said that he “was able to review no imaging related to the injuries today.”
The Medical Assessor set out his calculations:
“Restricted range of motion in the left ankle is assessed according to AMA 5 page 536, Table 17.11 and SIRA page 15, Table 3.17. On the basis of restricted range of motion, 23% lower extremity impairment is assessed. Clinical examination demonstrated a sensory deficit in the distribution of the superficial peroneal nerve. This is assessed according to AMA 5 page 482, 16.10 as a Grade III deficit. AMA 5 page 552, Table 17.37 assesses 5% lower extremity impairment for sensory abnormalities of the superficial peroneal nerve. 60% of the 5% LEI gives 3% LEI. 21% LEI combined with 3% LEI gives 23% LEI. According to SIRA page 526, Table 17.3, this converts to 9% whole person impairment.
Scarring/TEMSKI: On the basis of there being some contour deficits and pigmentation of lateral ankle scar, 2% whole person impairment is assessed for scarring/TEMSKI.”
Commenting on the other evidence in the file, the Medical Assessor said:
“With respect to the report by Dr Habib dated 5 March 2024, I did not have imaging available to make an assessment for subtalar arthrosis but have assessed impairment on the basis of restricted range of motion. I note he has assessed 5° of dorsiflexion and 2° of lower extremity impairment. According to SIRA page 15, Table 17.11, this should be 7% LEI. I have assessed the superficial peroneal deficit as Grade III rather than Grade 0.
With respect to the report by Dr Waller dated 3 July 2024, I note he has made an assessment of arthrodesis of the subtalar joint. I have no information to suggest that this has occurred. Dr Waller has found similar ranges of motion. I have assessed the sensory loss as Grade III rather than Grade I for the superficial peroneal nerve.”
Surgical treatment
As noted above, the medical evidence in the file is lacking. If the radiological reports and Dr Kao’s reports had been provided to the Medical Assessor, some of the issues on the appeal may have been avoided. Apart from Dr Habib’s report, there is nothing attached to the Application to Resolve a Dispute which post-dates September 2021. At that time, Dr Suzuki proposed a further MRI scan. Mr Yu underwent surgery on a further two occasions.
The history is set out in the reports of the doctors retained by the parties. Dr Habib saw Mr Yu at the request of his solicitors and reported on 5 March 2024. He itemised the documents he reviewed, including the operation notes of Dr Kao dated 29 June 2022 and 20 December 2022, notes from Mr Yu’s general practitioners and imaging reports dated between July 2020 and April 2023. Dr Habib recorded a detailed history of Mr Yu’s treatment:
“Mr Yu was seen by Dr Kuo [sic], orthopaedic surgeon on 18/02/22 at the request of his GP. Dr Kuo noted Mr Yu walking with antalgic gait, tender lateral subtalar joint region as well as antero lateral aspect of the left ankle and paraesthesia over the superficial peroneal nerve on Tinel’s test. Dr Kuo recommended further imagery including CT & MRI scans and X-rays. He was reviewed by Dr Kuo on 11/03/22 with the above imagery which showed subtalar, calcaneo-cuboid and talo-navicular joints changes which according to Dr Kuo required further surgery of synovectomy and talar osteophyte excisions. On 29/06/22 Dr Kuo carried out the above including subtalar fusion.
He was reviewed by Dr Kuo on 15/07/22 when the wound was found to have healed. He was advised non weight bearing and review with follow up CT scan to assess the subtalar joint fusion.
The CT scan was viewed by Dr Kuo on 02/09/22 which showed only partial union of the arthrodesis.
He was further reviewed by Dr Kuo on 04/11/22 when he complained of ongoing pain and clicking in the left ankle and heel, possibly from the screw used in the fusion surgery. He was referred for a further MRI scan.
Dr Kuo reviewed Mr Yu on 18/11/22 with continuing left ankle symptoms and with the MRI scan. Dr Kuo recommended removal of the hardware and arthroscopy of the left ankle plus/minus synovectomy. On 20/12/22 he underwent arthroscopic synovectomy of his left ankle and removal of the hardware from the calcaneum. At post op review on 10/02/23 Dr Kuo noted Mr Yu to have continuing pain around the calcaneum posteriorly also lateral surgical scar.
…
He was last reviewed by Dr Kuo on 21/04/23 with the MRI scan which showed well healed subtalar arthrodesis and resolution of the calcaneum bony oedema.”
Dr Waller, who saw Mr Yu on behalf of Vertex, had a similar history and was provided with a similar list of documents. He reviewed the imaging reports and said:
“X-rays and CT scans left foot 23.8.2022 show a posterior subtalar fusion with near complete bony fusion at the joint. Dr Lee.”
It is clear from those reports that Mr Yu did undergo subtalar fusion surgery in June 2022. In particular, Dr Waller accepted that he had. Vertex’s submission that “there was insufficient evidence for the MA to conclude that the Appellant had undergone a left ankle fusion” is disingenuous. While the surgery was a subtalar fusion rather than an ankle fusion, there is ample evidence in the file that it occurred.
Left ankle range of motion and subtalar fusion
The Medical Assessor did not have appropriate regard to the material in the file. If, after carefully reading the reports, he had any doubt that fusion surgery was undertaken, it was open to him to call for the material provided to Drs Habib and Waller under s 324(1)(b) of the 1998 Act. We do not consider that step is necessary on the appeal because of the detailed histories in the reports and the descriptions of the radiology. It is clear that Mr Yu has undergone a subtalar fusion and the Medical Assessor’s failure to accept that is a demonstrable error.
The failure to take account of the fusion means that the Medical Assessor’s assessment is incorrect. He said that he assessed LEI based on the restricted range of motion of Mr Yu’s left ankle. He did not set out how he reached that figure, other than to say that the result was 23%, recorded later in the same paragraph as 21%.
Based on the relevant range of motion observed by the Medical Assessor and using Table 17-11 of AMA 5, as modified in paragraph 3.17 of the Guidelines, 20° of plantar flexion equates to 7% LEI and 0° extension equates to 7% LEI. Those figures are added, rather than combined, to reach 14% LEI.[4]
[4] AMA 5 paragraph 17.2f page 536.
The Guidelines provide in Table 3.1 that a subtalar fusion in the optimum position is assessed at 10% LEI. That figure is added to the results of the range of motion assessment to reach 24% LEI.
The correct figure is the same as that assessed by Dr Waller, though he combined the components of the assessment instead of adding them. It is different to that assessed by Dr Habib, who did not use the correct tables in his assessment, relying instead on Table 17-31 of AMA 5 which provides for Arthritis Assessments Based on Roentgenographically Determined Cartilage Intervals.
Superficial peroneal nerve
The Medical Assessor accepted that he was required to assess impairment of the superficial peroneal nerve.
Table 17-37 of AMA 5 sets out impairments due to nerve deficits and provides that sensory impairment of the superficial peroneal nerve results in 5% LEI. Paragraph 17.21 instructs that partial sensory deficits are to be graded using Table 16-10 which applies to the upper extremity and also to the lower extremity.
The Medical Assessor assessed the impairment as Grade III under Table 16-10 of AMA 5, based on his clinical assessment. While it would have been preferable to say why he reached that figure, the Medical Assessor was not in error to rely on his examination findings and clinical judgement.
Grade 3 is appropriate for:
“Distorted superficial tactile sensibility (diminished light touch, and two-point discrimination), with some abnormal sensations or slight pain, that interferes with some activities.”
The percentage range is 26 to 60% and the Medical Assessor assessed Mr Yu at the upper end of the range. He then took 60% of the 5% assessed, resulting in 3% LEI. The assessment is consistent with the history that Mr Yu “gets numbness over the dorsum of his foot.” Later in the MAC, the Medical Assessor said that a sensory deficit over the dorsum of the foot is consistent with injury to the superficial peroneal nerve.
Dr Habib was alert to the need to grade the sensory impairment but assessed it as Grade 0. That is clearly not appropriate in Mr Yu’s case because Table 16-10 provides that it applies where there is “[a]bsent sensibility, abnormal sensations, or severe pain that prevents all activity.” Dr Waller assessed Mr Yu’s impairment as Grade 1 but that applies where the nerve injury which prevents most activity.
Assessment
The Medical Assessor sought to combine his assessment of LEI for the restricted range of motion with that for sensory impairment but made either an arithmetical or typographical error. It was appropriate to combine both assessments of LEI before converting to WPI.[5] The correct assessment is 24% LEI for the range of motion and subtalar fusion, combined with 3% for nerve impairment, resulting in 26% LEI which converts to 10% WPI.
[5] AMA 5 paragraph 1.4 page 10.
There was no appeal with respect to the Medical Assessor’s assessment of 2% WPI under the TEMSKI. When those figures are combined, Mr Yu’s WPI is 12%.
For these reasons, we have determined that the MAC issued on 9 January 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: | W27650/24 |
Applicant: | Guo Yu |
Respondent: | Vertex Point 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 Medical Assessor Rob Kuru 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 lower extremity | 16/4/2020 | Chapter 3, pages 13 - 23 | Chapter 17 pages 523 to 564 | 10 | nil | 10% |
| Scarring (TEMSKI) | 16/4/2020 | Chapter 14 pages 73-74 | N/A | 2 | nil | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
0
4
0