Assessments of WPI: What should your workers compensation representative know?

Stewart v AcrWorld Pty Limited [2023] NSWPICMP 30

There was no issue that that the worker suffered an injury in the course of his employment on 4 September 2018 whilst working in his duties as a construction supervisor. That injury included nerve damage in the left leg.

He made a claim for permanent impairment lump sum compensation under Section 66, which was eventually the subject of PIC proceedings. Dr Anderson (MA) issued a Medical Assessment Certificate (MAC). He assessed 10% WPI for the lumbar spine, left lower extremity and scarring.

The worker appealed the MAC, alleging that it contained a demonstratable error.

Issue for Determination

The assessment of a permanent impairment claim is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, (the Guides) and American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

The worker submitted that the MA had fallen into error by using the wrong part of AMA 5, namely Table 16-10 of Chapter 16 of AMA 5 (“Determining Impairment of the Upper Extremity Due to Sensory Deficits or Pain Resulting from Peripheral Nerve Disorders”), in formulating the relevant lower extremity impairment.

The Respondent argued that the appeal was misguided and relied upon paragraph 3.34 of the Guides, which provides that in assessing peripheral nerve injuries of the lower extremity, consideration must be given to Table 16-10 and 16-11 of AMA 5 (upper extremities) in association with Table 17-35 of AMA 5 (lower extremities). The effect of this is that a table which appears to only apply to the upper extremities, is also applied to the lower extremities.

Decision

The Appeal Panel agreed that the appeal was misconceived.

The Appeal Panel confirmed the MAC.  The Appeal Panel accepted that the MA’s path of reasoning was clearly set out by his reference to the relevant guidelines.

Further, the Appeal Panel accepted that the MA did not err in relying upon Table 16-10 as he was in fact obliged to do so because of Clause 3.34 of the Guides.

The Appeal Panel emphasised that there is an expectation that an appellant will be familiar with the relevant guidelines before going to the time and expense of lodging an appeal.

Implications

This decision confirms the importance of understanding the guidelines which apply to assessments of permanent impairment. It highlights the complexities involved in assessments of permanent impairment, and the importance of having an experienced workers compensation practitioner on your team.

The Workers Compensation team at Rankin Ellison Lawyers have a keen understanding of the Guides and AMA5. We carefully review all assessments of WPI to ensure that the correct guidelines are applied.  We take care to stay up to date with relevant information and changes so that we can assist our clients to navigate this tricky system.

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