To Include; Or Not To Include….
Parker v The Building Guild Staff Management Pty Ltd  NSWPICMP 104
The Appellant, Mitchell Parker, suffered an injury to both wrists and his left knee on 20 April 2016 when he fell from a ladder whilst at work.
He lodged an Application to Resolve a Dispute (ARD) seeking lump sum compensation pursuant to Section 66 of the Workers Compensation Act 1987 (1987 Act) in respect of 19% whole person impairment (WPI) of the left wrist/elbow and the left knee.
The Appellant was referred to Medical Assessor (MA) Associate Professor Philip Truskett. The body parts/systems that were referred to the MA for assessment were the left lower extremity and left upper extremity.
During the assessment with the MA, the Appellant entered the assessment room walking with a slight limp to his left leg. The Appellant informed the MA that he had an onset of pain to his left ankle approximately two weeks prior to the assessment. The MA made no further enquiries.
The MA issued a Medical Assessment Certificate (MAC) on 8 February 2021 assessing 14% WPI to the Appellant’s left upper extremity (wrist), left lower extremity (knee) and scarring. The MA noted in the MAC that the Appellant had complained of symptoms of pain to his left ankle but the MA considered that the left ankle symptoms were unrelated to the work injury of 20 April 2016. The MA provided no further reasons for that opinion.
The Appellant lodged an Application to Appeal Against the Decision of a Medical Assessor pursuant to Section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on the following grounds:
- Availability of additional relevant evidence;
- The assessment was made on the basis of incorrect criteria; and,
- The MAC contained a demonstrable error.
Determination / Reasons
The Appeal was referred to the Personal Injury Commission – Medical Appeal Panel (the Panel) consisting of Member Jane Peacock, Dr Brian Noll and Dr Tomassino Mastroianni.
In support of the Appeal, the Appellant submitted that the MA was required to explain why the left ankle injury was unrelated and why it did not attract any assessment of WPI.
The Respondent submitted that the Appellant had failed to identify what additional information was not available to, or could not reasonably have been obtained by, the Appellant before the assessment with the MA. The Panel agreed that no additional evidence had been put by the Appellant except for the Appellant’s submissions which did not constitute evidence.
The Respondent also submitted that in the absence of any medical evidence to establish a relationship between the Appellant’s work injury on 20 April 2016 and the left ankle condition it was open to the MA to find that the alleged left ankle condition was not related to the work injury and he was not required to provide reasons for finding that it was unrelated.
The Panel accepted the Respondent’s submission that there was no evidence before the MA or the Panel that indicated any disorder of the left ankle which constituted a consequential injury to the left ankle.
The Panel found that the MA had indicated that the left ankle complaint ‘was unrelated’, and that he did not need to give a greater explanation than this as there was no evidence of the left ankle condition resulting from the work injury. The Panel also found that the left lower extremity was referred to the MA based on the pleaded injury to the left knee, not the left ankle.
The Appellant had also submitted in support that the MA should have included either 1%, 2% or 3% additional WPI as indicated in clause 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines), given that muscle wasting of the left leg would occur unless the muscle continued to be exercised, that is, treatment continued.
The Respondent submitted that it was open to the MA to find that the Appellant was not likely to revert to the original degree of impairment (of the left knee with regard to muscle wasting) if treatment was withdrawn.
The Panel referred to paragraph 1.32 of the Guidelines which states:
‘Where the effective long-term treatment of an illness or injury results in apparent substantial total elimination of the claimant’s permanent impairment but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%’.
The Panel noted that paragraph 1.32 refers to ‘long-term treatment’. The Panel found that there was no evidence to indicate that the Appellant was receiving ‘long-term treatment’. They said that it was not possible to determine that a recurrence of thigh muscle wasting would occur in the longer term in the absence of ‘long-term treatment’.
The Panel held that the MA had not erred in his assessment and confirmed the MAC issued on 8 February 2021.
- A Medical Assessor is not required to provide their reasoning for not accepting an otherwise injured body part if that body part was not included in the initial claim nor referred to the Medical Assessor for assessment and if there is no other evidence that would indicate that the body part is related to the subject work injury.
- A Medical Assessor is not required to increase their assessment of WPI in accordance with paragraph 1.32 of the Guidelines if an injured worker is not undergoing ‘long-term treatment’.