DETERMINATION OF APPEAL PANEL	
	
CITATION:	Clubnova Co-Operative Limited (Members Voluntary Liquidation) v McNamara [2024] NSWPICMP 7	
		
APPELLANT:	Clubnova Co-Operative Limited (Members Voluntary Liquidation) 	
		
RESPONDENT:	Anthony McNamara	
		
Appeal Panel		
		
MEMBER:	John Wynyard 	
		
MEDICAL ASSESSOR:	Neil Berry	
		
MEDICAL ASSESSOR:	Peter Heathcote	
		
DATE OF DECISION:	10 January 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Appeal against 16% whole person impairment to the urinary system; worker assessed for multiple injuries suffered in an earthquake; whether Medical Assessor applied incorrect criteria and failed to give adequate reasons; Held – incorrect criteria applied, and demonstrable error made in failure to give adequate reasons; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 21 August 2023 Clubnova Co-Operative Limited (Members Voluntary Liquidation), the appellant employer, lodged an Application to Appeal Against the Decision of the Lead Medical Assessor. The Commission appointed two Medical Assessors to assess Mr McNamara. Dr Mark Burns, occupational physician, was appointed to assess the orthopaedic injuries, namely:
•	cervical spine; 
•	lumbar spine;
•	 left lower extremity; 
•	left upper extremity; 
•	right upper extremity, and 
•	scarring (TEMSKI). 
2.	Dr John Garvey, general surgeon was appointed as Lead Medical Assessor to assess urinary and reproductive systems. 
3.	The application to appeal is against the assessment of Dr Garvey only. Dr Garvey’s Medical Assessment Certificate (MAC) was issued on 24 July 2023. 
4.	The appellant 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.
5.	The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. 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. 
6.	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.
7.	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). “WPI” is reference to whole person impairment. 
RELEVANT FACTUAL BACKGROUND
8.	 On 15 June 2023 the disputes were referred to both Medical Assessors, seeking WPI assessments as outlined above.
9.	Mr McNamara was working as a Club Supervisor in the Newcastle Workers Club on 28 December 1989 when the region was struck by an earthquake. When it happened, he was working in an office where there was a large safe. During the earthquake the building collapsed, and he fell two storeys to end up lying face down in a puddle. The door of the safe landed across his back. He was pinned and not released for several hours. When he was eventually released from the rubble, he was taken to Royal Newcastle Hospital where he remained from 28 December 1989 to 6 February 1990.
10.	He sustained significant injuries including:
•	fractures to the right and left pubic rami; 
•	a fracture to the right sacral ala; 
•	bilateral traumatic pars fractures at L5; 
•	significant abdominal injuries including bowel lacerations and a large retroperitoneal haematoma around the bladder and bowel, and 
•	compression of the right S1 nerve root.
11.	Mr McNamara had a urethral catheter in place for two weeks, and he noted his urinary problems of being unable to easily pass urine which increased over time. 
12.	He also experienced some erectile dysfunction and has been unable to maintain an erection for the last 33 years. 
13.	Dr Garvey assessed 16% WPI for injury to the urinary system, 5% WPI for injury to the reproductive system, and a further 2% for the effects of long-term treatment.
PRELIMINARY REVIEW
14.	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.
15.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. Although the appellant employer requested such a re-examination, the Appeal Panel was able to correct the assessment on the basis of the evidence before it. 
EVIDENCE
Documentary evidence
16.	The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 
Medical Assessment Certificate
17.	The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision. 
SUBMISSIONS 
18.	Both parties made written submissions which have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
19.	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.
20.	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.
21.	The appellant employer submitted that the Medical Assessor had applied incorrect criteria and made a demonstrable error, as his findings were contrary to those of the specialists retained on its behalf. The appeal was limited to the assessment regarding the urinary system impairment,
The MAC
22.	The Medical Assessor noted the history of Mr McNamara’s injury as set out in his statement. The Medical Assessor noted that Mr McNamara has had urinary problems since the urethral catheter had been inserted for two weeks at the time of the injury, and that his urinary problems have increased over time. 
23.	The Medical Assessor noted Mr McNamara’s present symptoms as:
“With respect to the urinary function, he finds it hard to pass urine and experiences hesitancy which can last for a few minutes. He can suffer from urgency and on a couple of occasions he has had ‘accidents’ and occasional leakage. He has urinary frequency during the day and he does not know how many times and nocturia 
3-5 times, but no wet bed and no need to wear pads at night.”
24.	The Medical Assessor explained his reasons for assessment and calculations at [10] of the MAC:
“a. 	my opinion and assessment of whole person impairment 
20% WPI 
In making that assessment I have taken account of the following matters: Listing examination findings, investigation findings and matters of history that have determined the result] (Sic).
- The Claimant has a mixture of urge and stress incontinence meriting 16% WPI. With this is combined 5% WPI for erectile dysfunction for sexual function being possible but with varying degrees of difficulty of erection, ejaculation and sensation. With this is combined 2% WPI for the effects of long-term treatment under Clause 1.32, page 6, SIRA guides.
b. 	An explanation of my calculations (if applicable) 
16% WPI for urinary urge and stress incontinence is combined with 5% WPI for reduced sexual function to yield a final combined Whole Person Impairment assessment of 20% WPI). 2% WPI is combined for the effects of long-term treatment with Viagra and Cialis without which the Claimant is unable to have a satisfactory erection.”
25.	At [10c] of the MAC, a templated heading states:
“my brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:”
26.	The Medical Assessor considered the opinions of all the specialists in urology that were before him, namely: 
•	Dr Frank Breslin, dated 29 March 2011; 
•	Dr Robert Wines, dated 20 January 2021; 
•	Dr Edward Korbel, dated 9 November 2021, and 
•	Dr Philip Katelaris dated 10 November 2022. 
27.	The Medical Assessor gave a precis of each opinion, but did not proffer any commentary.
28.	The criteria relied on by the Medical Assessor were set out in the Table 2 Certificate, namely:
“Urinary system – Guides Table 7.2 page 38 and Clause 7.8 page 39
 AMA5 Chapter 13, page 341 para 13.7b, Table 13-19”
Effects of long-term treatment - Guides Clause 1.32 page 6, 	AMA 5 Clause 2.5g page 20. 
SUBMISSIONS
29.	The appellant employer claimed that the Medical Assessor had applied incorrect criteria in reaching his assessment. It referred to his use of the criteria for Rating Neurologic Impairment of the Bladder set out at page 341 of AMA 5, and noted the assessment of 16% WPI. It also referred his use of the Criteria for Rating Permanent Impairment due to Penile Disease and the Medical Assessor’s assessment of 5% WPI. 
30.	The appellant employer then referred to the opinions of the other medical specialists that were in evidence before the Medical Assessor. It noted that Dr Edward Korbel had assessed a class 1 rating of 5% WPI for the Criteria for Rating Permanent Impairment due to Penile Disease, and a further 1% WPI for impairment to the Genitofemoral nerve.
31.	The appellant employer referred in some detail to the report of Dr Phillip Katelaris. It noted that Dr Katelaris had found 0% WPI, but did not refer to which criteria Dr Katelaris had applied.
32.	It was argued that neither Dr Korbel nor Dr Katelaris had assessed any impairment in respect of Mr McNamara’s urinary urge and stress incontinence. It further noted that the 16% WPI assessed by the Medical Assessor had been for Mr McNamara’s “urinary urge and reported stress incontinence.” 
33.	The appellant employer traversed in some detail the opinion of Dr Katelaris. 
34.	The appellant employer submitted that the appropriate criteria regarding the injury to the urinary system was pursuant to the definitions for a class 1 for Rating Neurologic Impairment of the Bladder, and not class 2, as had been found by the Medical Assessor. It submitted that there was “very little corroborative evidence” for the proposition that Mr McNamara’s urinary impairment could be attributed to his work-related injury, and which supported an assessment of 16% WPI.
35.	The appellant employer conceded that there was “long-standing evidence of [Mr McNamara’s] erectile dysfunction.” It was open, it acknowledged, for the Medical Assessor to make an assessment similar to Dr Korbel. 
36.	We were referred to a report from Dr Robert Kuru (dated 26 August 2005) who reported there had been no change in Mr McNamara’s urinary or bowel function. A report from a Dr Neild (dated 22 August 1990) was also relied on to demonstrate a lack of complaint about urinary difficulty.
37.	The appellant employer concluded its submissions as to incorrect criteria by submitting that the Medical Assessor had erred in assessing the neurologic impairment of the bladder.
38.	The appellant employer also submitted that the Medical Assessor had made a demonstrable error. This, it was argued, was because the Medical Assessor had assessed a class 2 impairment for the Criteria for the Neurologic Impairment of the Bladder when the evidence was inconsistent with such a finding. We were again referred to the opinions of Dr Korbel and Dr Katelaris, who had not found any such impairment. There was, it was submitted, an inadequate explanation in the Medical Assessor’s reasons.
39.	The appellant employer referred again to the evidence it had relied on in discussing its submission that incorrect criteria had been applied. It submitted that the best fit would have been a class 1 impairment rating, if at all.
Respondent (Mr McNamara) 
40.	Mr McNamara relied on the findings made in various parts of the MAC by the Medical Assessor. It was submitted that there were “multiple references to the respondent’s urinary and sexual dysfunction” annexed to the evidence before the Medical Assessor. 
41.	Mr McNamara submitted that the Medical Assessor clearly set out his reasons referring to the examination findings, investigation findings and history. 
42.	It was submitted that the appellant employer’s assertion that a class 1 assessment ought to be made was no more than the employer cavilling with the Medical Assessor’s expertise.
43.	Mr McNamara submitted that the Medical Assessor was under an obligation to reach his or her assessment irrespective of what other experts had to say referring, without citing the well-known authority to that effect of Wingfoot.
FINDINGS AND REASONS 
44.	Firstly, we note that this appeal relates in the final analysis to the assessment of a class 2 impairment for injury to Mr McNamara’s urinary system of 16%.
45.	We note the industry demonstrated by the appellant employer in the detail it reproduced of the opinions of other medical specialists – including at some length Dr Katelaris’ negative views about Mr McNamara’s neurogenic erectile dysfunction. As the appellant employer conceded that the 5% WPI assessment in respect of the reproductive system was open to the Medical Assessor, it is not necessary to consider Dr Katelaris’ opinion any further in that regard. 
46.	However, we would in passing observe, with respect, that the fractures to the pubic rami and sacrum in the context of Mr McNamara’s being pinned face down for several hours with a safe lying on his back, having fallen two stories in the earthquake, would most probably have damaged the autonomic ganglia and the peripheral nerves associated with erectile activity, as well as being the cause of the bladder dysfunction from which he suffers..
47.	We note further, with respect, that the appellant employer’s reliance on the opinions of both Dr Korbel and Dr Katelaris have been misconceived. Neither expert was asked to advise on the impairment caused by injury to the urinary system.
48.	Dr Korbel does not appear to have been asked to assess the injury to the urinary system, but was retained to advise regarding the reproductive system, which he first expressed in terms of the Table of Disabilities on 9 November 2021. He was asked to convert that to a WPI and reported on 18 February 2022 that Mr McNamara’s “erectile dysfunction” was 5% WPI. However, the history taken regarding the urinary system was consistent with Mr McNamara’s history of a continuing problem since the earthquake. Dr Korbel said:
“Since the accident he has had day frequency and his urinary problems have worsened over time. He now has frequency every hour with nocturia times three to four. He has a diminished urinary stream with hesitancy and terminal dribbling. He has not sought any treatment with a urologist. I would recommend that this should occur.”
49.	Dr Katelaris also appears to have been retained for an opinion as to Mr McNamara’s reproductive dysfunction. Although his specialty was Urology, in his report of 10 November 2022 he said:
“I'm a Senior Consultant Urological Surgeon with over 35 years’ experience dealing with the management of sexual and erectile dysfunction, I am competent to comment on this matter.”
50.	In remarking on Mr McNamara’s current bladder function Dr Katelaris advised that Mr McNamara had symptoms “consistent with urinary tract symptoms due to prostatic hyperplasia”, which were “age related” and did not “necessarily relate to the injuries”. He found that the more recent symptoms had been present for three years. However, Dr Katelaris did concede that the diminished urinary flow had been present since the accident and “could represent a urethral stricture, a fibrous narrowing of the urethra.”
51.	We were thus not assisted by the appellant’s submission that Dr Katelaris and Dr Korbel had assessed a “nil impairment” for the assessment of the neurologic impairment of the bladder. Neither Dr Korbel nor Dr Katelaris made any such assessment.
52.	As to the appellant employer’s submissions regarding comments made by other experts, we note that Dr Robert Kuru is a Spinal and Orthopaedic Surgeon. Dr Kuru was involved in the management and treatment of Mr McNamara’s orthopaedic and other injuries. Patients do not always talk about their erectile or urinary difficulties when they are being treated for a myriad other problems, as Mr McNamara was. In addition to his orthopaedic injuries he had undergone a laparotomy, two incisional herniae, and treatment for a perforated colon.
53.	Dr W H Neild was retained on 22 August 1990 to give an assessment under the 1926 Table of Maims of the injury to Mr McNamara’s back and right inferior extremity. Dr Neild took a history of the earthquake injuries. He noted that after the earthquake Mr McNamara “was suffering from acute urinary retention” and he was taken to the operating theatre where it was found that he had tears of the colon, small intestine and a haematoma of the bladder. Dr Neild noted the supra-pubic and penial catheters were retained in position for about a fortnight and the history taken was “he had some difficulty with micturition after the catheters were removed, it was about two months before micturition was quite normal. He still occasionally experiences difficulty in commencing the act.”
54.	As indicated above, Mr McNamara’s bladder dysfunction is due to neurological injury sustained from the pelvic fractures so that Chapter 5 of the Guides contains the appropriate criteria. Chapter 5.6 on page 31 of the Guides defers to AMA 5, Table 15-6d on page 397. This table provides:
d. Criteria for Rating Neurologic Impairment of the Bladder	
Class 1
1% - 9% Impairment of the Whole Person	Class 2
10% - 24% Impairment of the Whole Person	Class 3
25% - 39% Impairment of the Whole Person	Class 4
40% - 60% Impairment of the Whole Person	
Individual has some degree of voluntary control but is impaired by urgency or intermittent incontinence	Individual has good bladder reflex activity, limited capacity, and intermittent emptying with- out voluntary control	Individual has poor bladder reflex activity, intermittent drib- bling, and no voluntary control	Individual has no reflex or voluntary control of bladder	
55.	 We were unable to find any explanation for the Medical Assessor’s opinion that Mr McNamara qualified for a class 2 assessment. Moreover, although he has referred to Table 13-19 in his Table 2 Certificate, at [10a] he assessed Mr McNamara as having “a mixture of urge and stress incontinence” and presumably then applied the criteria applicable to such a description, which is to be found at Chapter 7 of the Guides:
“Urinary incontinence
7.8 Urge urinary incontinence is the involuntary loss of urine associated with a strong desire to void. Stress urinary incontinence is the involuntary loss of urine occurring with clinically demonstrable raised intra-abdominal pressure. It is expected that urinary incontinence of a regular or severe nature (necessitating the use of protective pads or appliances) will be assessed as follows:
Stress urinary incontinence (demonstrable clinically): 11–25%, according to severity
Urge urinary incontinence: 16–40%, according to severity
Mixed (urge and stress) incontinence: 16–40%, according to severity
Nocturnal enuresis or wet in bed: 16–40%, according to severity
Total incontinence (continuously wet – eg from fistula): 50–70%
The highest scoring condition is to be used to assess impairment – combinations are not allowed.”
56.	We note that the Medical Assessor also referred to these criteria in his Table 2 Certificate, but in applying Chapter 7.8 to Mr McNamara’s situation he has indeed applied the wrong criteria. Mr McNamara’s condition has been caused by the neurological consequences of the injuries he sustained at the time of the earthquake and his subsequent treatment. His urinary incontinence is thus not urge incontinence caused by the involuntary loss of urine as described in Chapter 7.8.
57.	The correct criteria are those contained in Table 13-19. The Medical Assessor took the following history, to repeat:
“With respect to the urinary function, he finds it hard to pass urine and experiences hesitancy which can last for a few minutes. He can suffer from urgency and on a couple of occasions he has had ‘accidents’ and occasional leakage. He has urinary frequency during the day and he does not know how many times and nocturia 
3-5 times, but no wet bed and no need to wear pads at night”
58.	The Medical Assessor did not give adequate reasons for this class 2 assessment, as the history he took was consistent with a class 1 rating. He said that Mr McNamara had a degree of control in his description of hesitancy, which is a feature of voluntary control, and the history of urgency is compatible with the impairment described in class 1. 
59.	Moreover, there was no evidence which showed “intermittent emptying without voluntary control”. Further, Mr McNamara in his statement said that he found it difficult to void, and that he had to focus and exert effort. A degree of voluntary control is thus clearly demonstrated. 
60.	Accordingly, the MAC will be revoked. The level of impairment we find to be within the class 1 category and in the midrange at 5% WPI, given the evidence we have referred to.
61.	Accordingly, Mr McNamara’s Table 2 entitlement will be adjusted by substituting 5% for 
16% in respect of the impairment to the urinary system. Using the Combine Tables Mr McNamara’s entitlement becomes 38%.
62.	For these reasons, the Appeal Panel has determined that the MAC issued on 24 July 2023 by Dr John Garvey should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons. The amended Combined Value Table is also attached.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W2522/23 	
Applicant:	Clubnova Co-Operative Limited (Members Voluntary Liquidation)	
Respondent:	Anthony McNamara	
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr John Garvey 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)	
Urinary system	28/12/1989	Ch 5
Pars 5,6
Page 31	Ch 15 
page 397,
par 15-6d
	5%	Nil
	5%	
Total % WPI (the Combined Table values of all sub-totals)	5%	

Name of Approved Medical Specialist	Body Part or System	Date of injury	Chapter, Page and Paragraph number in the Workers Compensation Guides	Chapter, Page, Paragraph Figure and Table numbers in AMA 5 Guides	% WPI	%WPI
deductions pursuant to s 323 for pre- existing injury, condition or abnormality	Sub- total/s % WPI (after any deductions in column 7)	
Dr Garvey	Urinary system	28/12/1989	Chapter 5.6 page 31	Ch 15, 
page 397, Table 15-6d	5%	Nil	5%	
Dr Garvey	Reproductive system	28/12/1989	Chapter 7,
Clause 7.9,
page 39	Chapter 7, section 7.7a and 7.7b, and Table 7-5, 
page 156	5%	Nil	5%	
Dr Garvey	Effects of long-term treatment	28/12/1989	Clause 1.32,
page 6	Clause 2.5g, 
page 20	2%	Nil	2%	
Dr Burns	Cervical spine	28/12/1989	Chapter 4	Chapter 15,
Table 15-5,
page 392	5%	Nil	5%	
Dr Burns	Lumbar spine	28/12/1989	Chapter 4, paragraph 4.26 and 4.27	Chapter 15,
Table 15-3,
page 384	12%	Nil	12%	
Dr Burns	Left lower extremity	28/12/1989	Chapter 3, amended 
Table 17-35 of AMA 5	Chapter 17,
Table 17-35 (as amended), and 
Table 17-33	15%	Nil	15%	
Dr Burns	Right upper extremity	28/12/1989	Chapter 2	Tables 16-10,
16-11 and
16-15	0%	Nil	0%	
Dr Burns	Left upper extremity	28/12/1989	Chapter 2	Chapter 16,
Tables 16-10,
16-11 and
16-15	0%	Nil	0%	
Dr Burns	Scarring	28/12/1989	Chapter 14,
Table 14.1 (TEMSKI)		2%	Nil	2%	
Total % WPI (the Combined Table Values of all sub – totals)	38% WPI