An assessment below WID threshold! An ‘Appealing’ win for the Respondent

Matthew Selkirk v Frontier Assembly Pty Ltd

The Appellant Worker, Matthew Selkirk, sustained a frank injury to his right leg after it was crushed by a steel grate on 26 May 2021. Although the injury to his right leg improved over time, he developed deep vein thrombosis (DVT) in his left leg which was accepted as a consequential condition to the frank injury.

On 13 April 2023, the Appellant provided notice of his claim for permanent impairment compensation in respect of 30% WPI of the left leg. He was subsequently assessed by Dr Nigel Ackroyd, the Respondent’s IME, with 16% WPI of the left leg and a permanent impairment counter offer was made by the Respondent.

Appellant did not accept the counter-offer and commenced proceedings in the Personal Injury Commission. As there was no liability issue with respect to the injury, the Appellant was referred to a Medical Assessor – Dr Tim Anderson.

A Medical Assessment Certificate (‘MAC’) was issued by Dr Anderson on 11 October 2023 and the Appellant was assessed with 12% WPI of the left leg. The Appellant subsequently lodged an Appeal against the MAC.

Issues for Determination

The Appellant relied on the following grounds of Appeal:

1. The assessment was made on the basis of incorrect criteria; and
2. The MAC contains a demonstrable error.

Decision

The Medical Appeal Panel (‘MAP’) dismissed each ground of Appeal and upheld the MAC of Medical Assessor – Dr Tim Anderson.

The Appellant submitted that the MA did not consider all of the criteria with respect to his assessment under Table 17-38 of AMA5 because he did not ask about the criteria for assessment, particularly with respect to whether there was intermittent claudication when walking. It was also submitted that the Appellant should have been assessed in Class 3 of Table 17-38 and the MA had misinterpreted the assessment of Dr Ackroyd.

The MAP did not accept the Appellant’s submissions and stated that the MA took an appropriate history of the impact of the injury on his activities. Furthermore, it was discussed that claudication is usually experienced as a result of an arterial disease rather than the Appellant’s diagnosed venous disease.

None of the Appellant’s treating doctors indicated that he suffered any arterial disease and accordingly, the criteria was essentially irrelevant to the assessment of his condition. It did not follow that any limitation on his walking since the injury was on the basis of intermittent claudication because this was a feature of arterial disease rather than venous disease.

Considering the assessment of Dr Anderson, it was stated:

“Once he had made that assessment and had placed Mr Selkirk in Class 2, it was up to the Medical Assessor to determine where his injury should be assessed in the range between 10% and 39%. He chose the middle of that range at 20% LEI…that assessment was open to him”.

Finally, the MAP acknowledged that Dr Anderson had misinterpreted Dr Ackroyd’s assessment to suggest that it was less than his own however that error was not material to his own assessment on the day of the examination.

Implications

An assessment of permanent impairment by a Medical Assessor in the Personal Injury Commission is based upon their own observations during the examination and the relevant medical documentation. There is no certainty that the assessment made by the Medical Assessor will result in a higher assessment of permanent impairment when compared to the Insured’s IME.

This decision serves as an important reminder for workers to strongly consider the possible threshold and monetary implications of commencing proceedings in the Personal Injury Commission.

Should you have any queries concerning a workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.