DETERMINATION OF APPEAL PANEL	
	
CITATION:	UGL Ltd v Wood [2024] NSWPICMP 866	
		
APPELLANT:	UGL Limited	
		
RESPONDENT:	William Wood	
		
APPELLANT:	William Wood	
		
RESPONDENT:	UGL Limited	
		
Appeal Panel		
		
MEMBER:	Jacqueline Snell	
		
MEDICAL ASSESSOR:	Todd Gothelf	
		
MEDICAL ASSESSOR:	Gregory McGroder	
		
DATE OF DECISION:	17 December 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; two related matters were dealt with together by the Medical Appeal Panel (Panel); in first matter, the appellant made application to admit fresh evidence, being two surveillance reports relevant to surveillance after the Medical Assessment Certificate (MAC) had issued, which was neither opposed or consented to by the respondent; the appellant’s application was refused; the appellant essentially submitted the Lead Medical Assessor (MA) had failed to follow reporting format directed by the President, failed to refer to opinion of one independent medical examiner in circumstances where he had referred to the opinion of the other independent medical examiner with consequential denial of procedural fairness, and failed to give reasons for not undertaking a deduction in accordance with section 323; Panel did not accept the Lead MA had failed to follow any reporting format directed by the President; Panel did not accept the appellant had been denied procedural fairness by failure the Lead MA to refer to opinion of only one of independent medical examiners; Panel did not accept the Lead MA had failed to give reasons for not undertaking deduction in accordance with section; Held – MAC does not contain demonstrable error; MAC confirmed. 
In second matter, the appellant also made application to admit fresh evidence, being photographs of bilateral wrist scarring, which was neither opposed nor consented to by the respondent; the fresh evidence was received on the appeal; the appellant essentially submitted the Lead MA failed to apply the TEMSKI/scarring criteria in assessing bilateral wrist scarring, failed to provide reasoning as to his assessment with reference to the TEMSKI/scarring criteria, with the evidence meeting the criteria for assessment of 1% whole person impairment (WPI); following review of the fresh evidence received on appeal, the Panel did not accept the Lead MA failed to apply the TEMSKI/scarring criteria when assessing bilateral wrist scarring nor that he failed to provide reasoning for his assessment; Panel accepted the Lead MA used his clinical judgement when he assessed 0% WPI and had applied the TEMSKI/scarring criteria and clause 16.6 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; Held – the assessment was not made on the basis of incorrect criteria and the MAC does not contain demonstrable error; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL
M1-W6837/23
1.	On 17 September 2024 UGL Limited (UGL) lodged an Application to Appeal Against the Decision of Medical Assessor, being a Lead Medical Assessor. The medical dispute was in part assessed by Dr Jonathan Negus, a Lead Medical Assessor, who issued a Lead Medical Assessment Certificate (MAC) on 28 August 2024.
2.	UGL relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): 
•	the MAC contains a demonstrable error.
3.	On 14 October 2024 William Wood (Mr Wood) lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor, being a Lead Medical Assessor.
M2-W6837/23
4.	On 17 September 2024 Mr Wood lodged an Application to Appeal Against Decision of Medical Assessor, being a Lead Medical Assessor.
5.	Mr Wood relies on the following ground of appeal under s 327(3) of the 1998 Act:
•	the assessment was made on the basis of incorrect criteria, and
•	the MAC contains a demonstrable error.
6.	On 14 October2024 UGL lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor, being a Lead Medical Assessor.
M1-W6837/23 and M2-W6837/23 to be dealt with together
7.	The delegate is satisfied that, on the face of the applications, at least one ground of appeal has been made out and made an order that the Appeal Panel will deal with both UGL’s appeal (M1-W6837/23) and Mr Wood’s appeal (M2-W6837/23).
8.	The Appeal Panel has conducted a review of the original medical assessment of the Lead Medical Assessor but limited to the grounds of appeal on which the appeal is made. 
9.	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.
10.	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
11.	Mr Wood relevantly made a claim for permanent impairment compensation resulting from injuries sustained to his right upper extremity (wrist, elbow, median nerve), left upper extremity (wrist, median nerve) and skin (bilateral scarring to the wrists) in the course of his employment with UGL with deemed date of injury of 1 April 2014, which was disputed.
12.	When Mr Wood’s claim came before the Personal Injury Commission (Commission) on 
12 December 2023, by consent, the dispute arising as to the permanent impairment sustained by Mr Wood resulting from injury sustained to his right upper extremity (wrist, elbow, median nerve), left upper extremity (wrist, median nerve) and skin (bilateral scarring to the wrists) in the course of his employment with UGL with deemed date of injury of 
1 April 2014 was remitted to the President for referral to a Medical Assessor.
13.	The Lead Medical Assessor examined Mr Wood on 30 May 2024 and the MAC in which the Lead Medical Assessor relevantly assessed Mr Wood as having sustained 13% whole person impairment resulting from injury sustained to his right upper extremity (wrist, elbow, median nerve), left upper extremity (wrist, median nerve) and skin (bilateral scarring to the wrists).
PRELIMINARY REVIEW
14.	The Appeal Panel conducted a preliminary review of the original medical assessment of the Lead Medical Assessor 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 while it was not necessary for Mr Wood to undergo a further medical examination the Appeal Panel determined in M2-W6837/23 it was appropriate for the Appeal Panel to examine photographs of the bilateral wrist scarring so as to determine whether the assessment was made on the basis of incorrect criteria and/or whether there was error on the face of the MAC as alleged by Mr Wood.
Fresh evidence 
16.	Section 327(3) (b) of the 1998 Act provides a ground for appeal against a medical assessment is the availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
17.	Section 328(3) of the 1998 Act provides evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Fresh evidence in M1-W6837/23
18.	Under cover of Application to Admit Late Documents dated 25 October 2024 UGL seeks to admit a surveillance report dated 23 October 2024 prepared by Procare together with email addressed to Mr Wood’s solicitors requesting consent to the admission into evidence of the report, by close of business on 25 October 2024.
19.	UGL provides the following reasons in support of the application:
“The appellant seeks leave to rely upon the Procare Surveillance Report dated 23 October 2024 and correspondence footage received 23 October 2024 on the basis that the evidence is fresh evidence as per Section 328(3) of the 1998 Act. This material was not available at the time of filing the Appeal against the MAC of Assessor Baker. The report and footage are highly relevant to the issues that are required to be determined, namely the assessment of WPI. In that regard the worker is scheduled to undertake the re-assessment on 6 November 2024. The report and footage show that the worker is able to drive, go shopping, attend to household tasks such as lawn mowing and socialise among other activities.
The appellant submits that it is in the interests of justice, for the Commission to allow the appellant to rely on the report and correspondence surveillance footage.
The documents contained in the application are relevant to the issues required to be determined by the Commission namely assessment of the worker’s WPI resulting from the primary psychological injury.  
The appellant submits that a failure to allow the appellant to rely upon these documents would result in injustice and prejudice to the appellant.”
20.	The Appeal Panel notes ‘primary psychological injury’ is not the injury the subject of the MAC from which UGL appeals, there was no re-assessment of Mr Wood scheduled for
6 November 2024 relevant to the injury the subject of the MAC from which UGL appeals, and the MAC from which UGL appeals is not the MAC of Medical Assessor Baker.
21.	There does not appear to have been any response from Mr Wood to UGL’s request for his consent to UGL’s reliance on this surveillance report.
22.	Under cover of Application to Admit Late Documents dated 20 November 2024 UGL seeks to admit a surveillance report dated 13 November 2024 prepared by Procare together with email addressed to Mr Wood’s solicitors requesting consent to admit into evidence the report by close of business on 19 November 2024.
23.	UGL provides the following reasons in support of the application:
“The respondent seeks leave to rely upon the Procare Surveillance Report dated 13 November 2024 on the basis that the evidence is fresh evidence as per Section 328(3) of the 1998 Act. This material was not available at the time of filing the 
The report and footage are highly relevant to the issues that are required to be determined, namely the assessment of WPI. The report and footage show that worker is able to drive, go shopping, attend to household tasks such as lawn mowing and socialise among other activities. The respondent submits that it is in the interests of justice, for the Commission to allow the respondent to rely on the report and surveillance footage.
The documents contained in the application are relevant to the issues required to be determined by the Commission, namely assessment of the worker’s WPI.
The respondent submits that a failure to allow the Respondent to rely upon these documents would result in injustice and prejudice to the respondent.
The respondent notes that it has sought consent from the worker’s representative to rely on the documents.
The respondent served the evidence on the worker as soon as it came to hand and sought consent to rely on the report. In accordance with Rule 67(4)(b) the respondent seeks that the appropriate decision-maker give the Appellant leave to lodge the additional documents to obtain consent to the lodgement from all parties to the proceedings.”
24.	There does not appear to have been any response from Mr Wood to UGL’s request for his consent to UGL’s reliance on this surveillance report.
25.	With reference to s 328(3) of the 1998 Act, the Appeal Panel determines that neither the surveillance report dated 23 October 2024, or the surveillance report dated 
13 November 2024 prepared by Procare together with emails addressed to Mr Wood’s solicitors requesting consent to rely on the report should be received on the appeal.
26.	The reception of fresh evidence is a discretionary matter. In Lukacevic v Coates Hire Operations Ltd the court stated:
“… it would be reasonable for an Appeal Panel not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the Appeal Panel is a position where it had to have a further medical examination conducted by one of its members. I do not think this would accord with the policy of the WIM Act.”
27.	The Appeal Panel considers the decision of CSR Limited v Ewins to be particularly instructive in respect of s 327(3)(b) and s 328(3) of the 1987 Act in that in Ewins the employer sought to have a surveillance report relevant to a period of surveillance that post-dated assessment of an injured worker by a Medical Assessor on the basis the surveillance report was additional relevant evidence and supported submission that complaint made by the injured worker to the Medical Assessor had been false. 
28.	In these proceedings the ground of appeal on which UGL relies is that the MAC contains a demonstrable error and UGL has not sought to amend to include any further ground of appeal, specifically UGL has not sought to amend to include the ground available under s 327(3) (b) of the 1998 Act. In seeking to admit into evidence the surveillance reports dated 23 October 2024 and 13 November 2024 prepared by Procare together with emails addressed to Mr Wood’s solicitors requesting consent to rely on the reports UGL merely relies on s 328(3) of the 1998 Act and rule s 67(4)(b) of the Personal Injury Commission Rules 2021 (the Rules). UGL does not rely on s 327(3)(b) of the 1998 Act as a ground of appeal.
29.	Although the Appeal Panel accepts the surveillance reports dated 23 October 2024 and 
13 November 2024 prepared by Procare together with emails addressed to Mr Wood’s solicitors requesting consent to rely on the reports were not available to UGL before the Medical Assessment and could not reasonably have been obtained by UGL before the Medical Assessment as the documents relate to surveillance conducted on 15, 16 and 
19 October 2024 and on 6 and 7 November 2024, other than submitting the surveillance is “highly relevant” to the issue to be determined, “namely the assessment of WPI”, in that the surveillance demonstrates Mr Wood is “able to drive, go shopping, attend to household tasks such as lawn mowing and socialise among other activities” UGL makes no other submission regarding relevance. 
30.	The Appeal Panel notes the Lead Medical Assessor made no note of Mr Wood reporting at assessment he was unable to drive, was unable to go shopping and was unable to attend to household tasks such as lawn mowing, being activities which may be relevant to the Medical Assessor’s assessment of whole person impairment with reference to bilateral upper extremity active range of motion.  
31.	The Appeal Panel notes Mr Wood made no complaint to Dr Bodel who orthopaedically assessed him on 19 May 2022 he was unable to drive, was unable to go shopping and was unable to attend to household tasks such as lawnmowing, although he did indicate “he was having great difficulty with household maintenance and cleaning activities”. 
32.	The Appeal Panel notes Mr Wood made no complaint to Dr Rimmer who orthopaedically assessed him on 15 February 2023 he was unable to drive, was unable to go shopping and was unable to attend to household tasks such as lawnmowing and in fact Dr Rimmer reported “he continues to do gardening” and “he drives short distances for shopping etc.” 
33.	The Appeal Panel notes in his statement dated 7 September 2023 Mr Wood made no complaint he was unable to drive, was unable to go shopping and was unable to attend to household tasks such as lawnmowing. In fact, Mr Wood said he was unable to carry groceries that are heavy (which to our mind indicates he continues to go shopping) and he also said while he has difficulty gardening, including lawn mowing, he continues to work in his garden and has purchased “some lightweight garden tools to use around the house and garden which are battery operated so they don’t vibrate very much.”  
34.	In circumstances where the surveillance appears to demonstrate activity which Mr Wood has not reported he is unable to do, the Appeal Panel does not accept UGL’s submission the surveillance reports dated 23 October 2024 and 13 November 2024 prepared by Procare are “highly relevant” to assessment of whole person impairment.
35.	With reference to rule 67(4)(b) of the Rules, neither is the Appeal Panel satisfied it is in the interests of justice to admit the surveillance report dated 23 October 2024 or the surveillance report dated 13 November 2024 prepared by Procare together with emails addressed to 
Mr Wood’s solicitors requesting consent to rely on the reports into evidence and UGL cannot rely on these late documents.
36.	At the time of lodgement of the Applications to Admit Late Documents by UGL with the subject documents being the surveillance reports dated 23 October 2024 and 
13 November 2024 prepared by Procare together with emails addressed to Mr Wood’s solicitors requesting consent to rely on the report, rule 67(4)(b) relevantly provided leave could be given to UGL following an attempt by a party to obtain consent to the lodgement by Mr Wood, if the Appeal Panel “is satisfied that it is necessary to do so in the interests of justice”.  
37.	The onus of establishing it is in the interests of justice to admit the surveillance reports dated 23 October 2024 and 13 November 2024 prepared by Procare together with emails addressed to Mr Wood’s solicitors requesting consent to rely on the reports is on UGL, with consideration to be given to the extent of the prejudice to Mr Wood that would result from granting leave to admit the late documents, the effect on the timely resolution of the dispute, the objectives of the Commission, whether or not a refusal to admit the late documents would cause substantial prejudice to UGL, the nature of the proceedings, and general considerations of justice and fairness between the parties.
38.	As noted, the surveillance report dated 23 October 2024, and the surveillance report dated 13 November 2024 depict activity of Mr Wood after the MAC was issued and in essence do not reflect adversely on the history provided by Mr Wood to the Medical Assessor. If the Appeal Panel was to admit the surveillance report dated 23 October 2024 and the surveillance report dated 13 November 2024 into evidence in these proceedings, so as to enable justice and fairness between the parties, Mr Wood should be afforded the opportunity to respond to the surveillance reports with re-examination, which would affect the timely resolution of the dispute to be determined. 
39.	In circumstances where UGL only chose to place Mr Wood under surveillance after the issuing of the MAC, with such surveillance demonstrating activity which is not adverse to history provided to the Medical Assessor, the Appeal Panel does not consider refusal to admit the late documents into evidence causes substantial prejudice to UGL.
Fresh evidence in M2-W6837/23
40.	In submissions referred below Mr Wood seeks to admit photographs of the scarring to the wrists bilaterally into evidence.
41.	Mr Wood submits this evidence is relevant to the discrepancies demonstrated between the opinion of the Lead Medical Assessor and the opinion provided by Dr Bodel in his capacity as independent medical examiner and Mr Wood’s evidence. While Mr Wood makes no submission as to why the evidence could not reasonably have been obtained before the medical assessment, Mr Wood submits the evidence was not available before the medical assessment because the Lead Medical Assessor was to undertake a physical examination of Mr Wood and “it was not anticipated that the assessment by the MA would be significantly at variance to the Applicant’s physical presentation.” Mr Wood further submits the evidence may avoid the necessity for further medical examination by the Appeal Panel relevant to scarring.
42.	UGL makes no submission relevant to Mr Wood’s application to admit photographs of the scarring to wrists bilaterally into evidence.
43.	As noted, the Appeal Panel has a discretion to accept or reject the photographs of the scarring to wrists bilaterally into evidence. The Appeal Panel is of the view the photographs of the scarring of the wrists bilaterally should be received on the appeal so as to enable the Appeal Panel to ascertain whether there is discrepancy between the opinion of the Lead Medical Assessor and the opinion provided by Dr Bodel in his capacity as independent medical examiner and Mr Wood’s evidence, as submitted by Mr Wood.
44.	While the Appeal Panel accepts the photographs of the scarring of the wrists bilaterally could reasonably have been obtained by Mr Wood prior to assessment, the Appeal Panel accepts Mr Wood’s submission it was not anticipated the assessment by the Medical Assessor would be significantly at variance to his purported physical presentation at assessment.
EVIDENCE
Documentary evidence
45.	The Appeal Panel has before it all the documents that were sent to the Lead Medical Assessor for the original medical assessment, the photographs of the scarring of the wrists bilaterally and Medical Assessor Gothelf’s report dated 24 November 2024 referred below and has taken them into account in making this determination.
Review of photographs of the wrists bilaterally in M2-W6837/23
46.	Medical Assessor Gothelf of the Appeal Panel conducted a review of the photographs of the scarring of the wrists bilaterally on 24 November 2024 and reported to the Appeal Panel.
47.	Medical Assessor Gothelf reported:
	“Dr Negus indicated that procedures performed on both the right and left wrists/hands:
November 2014, Right wrist surgery. Arthroscopic debridement of the wrist, excision of the dorsal wrist ganglion, and open right carpal tunnel release.
	April 2015, arthroscopy debridement and excision of left dorsal wrist ganglion.
	24 April 2019, endoscopic carpal tunnel release of the left wrist. 
	The above procedures would have resulted in scarring as follows:
	Right wrist: small 2-3 mm portal scars, a dorsal wrist scar, and a volar wrist scar.
	Left wrist: small dorsal portals 2-3mm for ganglion excision, and small volar incisions for endoscopic carpal tunnel release. 
Dr Negus indicated in his physical examination findings:
Right wrist- consistent with carpal tunnel release
Left wrist: consistent with arthroscopic carpal tunnel release. 
	Dr Negus indicated a 0% WPI for scarring, noting normal surgical scars, not noticeable and don’t interfere. 0%
	In looking at the photographs submitted, I make the following comments:
	Photographs were taken 18 November 2024, after all surgeries.  Dr Negus performed his assessment 30 May 2024.  This was well after the surgeries and the assessment of scars would be stable. 
	Photograph ‘A’: The volar left wrist.  The left wrist had an endoscopic carpal tunnel release. The general quality of the photo is difficult to interpret.  The hand and wrist have a reddish discolouration, and I cannot appreciate a lump. I am unable to appreciate the scars from the endoscopic carpal tunnel release. I conclude that this photograph does not help to alter the opinion of Dr Negus in any way. 
	Photograph ‘B’: The dorsum left wrist: The photo would be demonstrated arthroscopic portals from the dorsal arthroscopic ganglion excision. The quality of this photo is similar to ‘A’, with redness discolouration of the dorsal hand forearm.  I am unable to appreciate scars from the surgery, which normally would be transverse. I conclude that this photograph does not serve to convince me to change the opinion of Dr Negus.
	Photograph ‘C’: Right hand palm and inner aspect of right wrist. The scars from the right wrist observed in this photograph are the open carpal tunnel release.  The photo again has poor quality, with discolouration of the hand and forearm. I agree with Dr Negus that the scar appears standard for an open carpal tunnel release. The scar is healed, appears similar in colour to the surrounding skin, no suture marks are visible, with no trophic changes. From a photo, I am unable to draw hard conclusion on any contour defect.  However, the scar appears to have minimal contour defect.  In the context of the appearance of this photograph, I have no reason to alter the opinion of Dr Negus.  The ‘best fit’ criteria are met for a 0% WPI. 
	Photograph ‘D’: Right dorsum wrist and hand. This photo would demonstrate scarring from arthroscopic of wrist and excision of dorsal ganglion. I again note a similar difficulty with the quality of the photograph, with discolouration of the skin similar to previous photographs.  Regardless, I am unable to appreciate any significant scarring which is distinct from the surrounding skin.  I conclude that this photograph does not serve to convince me to alter the opinion of Dr Negus. 
My conclusion.
	In summary, the photographs do not demonstrate to me any qualities of scarring which would serve to alter the opinion of Dr Negus.  The left wrist had scarring from endoscopic surgery, which would normally be transverse scars, and I would expect would not result in a rateable impairment, unless significant unexpected scarring occurred.  These photographs do not serve to alter this opinion.  While Dr Negus did not specifically indicate the criteria from the scale, ultimately the assessment is a clinical judgement, and I have no reason to alter his opinion. 
	The right wrist had an open carpal tunnel release, and the scar on this photograph is consistent with a well healed scar. I see not reasons to alter the opinion of Dr Negus, and to me the scars are consistent with his assessment. 
With regards to Dr Bodel’s comments from 19 May 2022:
	Scarring- healed both wrists 6cm scar dorsum wrist right side and 3cm on left side.  Right wrist carpal tunnel scar and left wrist endoscopic scar. 1%.  Mildly complicated surgical scarring. Scarring as pigmentation but no tethering to underlying deep structures. Clearly visible over the dorsum of the right wrist and left wrist.  Mild tenderness- (not a criteria) Quality rates as 1% 
	Based upon the available photographs, I am unable to appreciate pigmentation.  
Dr Bodel writes that the scars are ‘clearly visible’ on the dorsum of the right and left wrist.  I cannot appreciate the ‘clearly visible’ scars on the photographs.  I would note that the appearance of the scars is a clinical judgement.  Therefore, on expert’s opinion regarding the ‘visibility’ of the scars may differ from other experts, in terms of how to grade the scars. Dr Bodel indicates that there was mild tenderness, which is not a criteria in the TEMSKI scale. 
	It should be noted that Dr Bodel’s description also does not include all criteria from the TEMSKI scar.  Further, the writing of all criteria is not required. Sections 14.8, 14.9 p 73 states:
The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.
Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.
Thus, as indicated in the SIRA Guides, the category chosen should best reflect the skin disorder being assessed, and the assessor should use clinical judgement.  I accept that Dr Negus has used clinical judgement in this case.
I also would note section 14.6 p 73 of the SIRA Guides:
A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.
Dr Negus indicated that scars were consistent with surgical procedures, implying that these were uncomplicated scars for standard surgical procedures.  Thus, his application of a 0% WPI is consistent with the principles in the SIRA Guides section 14.6.”
MAC of Lead Medical Assessor
48.	The parts of the MAC given by the Lead Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision. 
SUBMISSIONS 
49.	Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel. 
M1-6837/23
50.	In summary, UGL submits the MAC issued by the Lead Medical Assessor contained demonstrable error in that the Lead Medical Assessor failed to consider opinion provided by Dr Rimmer in his report dated 20 April 2023 prepared in his capacity as independent medical examiner. UGL submits:
(a)	the Lead Medical Assessor failed to follow reporting format directed by the President;
(b)	the Lead Medical Assessor referred to the opinion provided by Dr Bodel in his  capacity as independent medical examiner but failed to refer to the opinion provided by Dr Rimmer in his capacity as independent medical examiner, which failed to provide procedural fairness to UGL, and
(c)	the Lead Medical Assessor failed to give reasons for not undertaking deduction for prior injury, condition or abnormality in accordance with s 323 of the 1998 Act. 
51.	In reply, Mr Wood submits UGL has failed to establish a demonstrable error can be made out in the MAC issued by the Lead Medical Assessor. Mr Wood submits:
(a)	UGL provides neither the source of any reporting format directed by the President nor indication as to the manner in which the Lead Medical Assessor failed to follow any reporting format directed by the President;
(b)	the Lead Medical Assessor is not required to refer to all of the evidence available to him in the MAC issued by the Lead Medical Assessor, with his obligation being to explain the pathway for his reasoning so as to ensure it is apparent he has complied with the law, and
(c)	the Lead Medical Assessor considered the requirement of s 323 of the 1998 Act and in circumstances where he found there was no relevant prior injury, condition or abnormality, he made no deduction in accordance with s 323 of the 1998 Act.
M2-6837/23
52.	In summary, Mr Wood submits the MAC issued by the Lead Medical Assessor contained demonstrable error in that the Lead Medical Assessor’s assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error.  Mr Wood submits:
(a)	the Lead Medical Assessor failed to apply the TEMSKI criteria in assessing bilateral wrist scarring;
(b)	the Lead Medical Assessor failed to provide reasoning as to his assessment of Mr Wood’s scarring with reference to the TEMSKI criteria, and
(c)	the evidence meets the criteria with regard to an assessment of 1% whole person impairment and does not support the scarring assessment of 0% whole person impairment.
53.	In reply, UGL submits the MAC issued by the Lead Medical Assessor does not contain demonstrable error and the Lead Medical Assessor’s assessment was not made on the basis of incorrect criteria.  UGL submits:
(a)	the Lead Medical Assessor applied the TEMSKI/scarring criteria in assessing bilateral wrist scarring, in that it is apparent he considered cl 14.8 and cl 14.9 of the Guidelines in assessing whole person impairment;
(b)	the Lead Medical Assessor expressed his reasoning as to his assessment of 
Mr Wood’s scarring with reference to the TEMSKI/scarring criteria, and
(c)	Mr Wood simply cavils with the Lead Assessor’s assessment of 0% whole person impairment bilateral wrist scarring.
FINDINGS AND REASONS 
54.	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. 
Review of the MAC
55.	The Lead Medical Assessor recorded a deemed date of injury of 1 April 2014. The Lead Medical Assessor relevantly recorded Mr Wood developed severe symptoms in his elbows, wrists and hands at the ends of his work shifts, with his work involving the use of the heavy tools used in the sanding of trains in preparation for painting.  With Mr Wood waking with numbness in both hands in late March 2014, Mr Wood consulted with his general practitioner and following diagnostic investigation was referred for specialist review. The Lead Medical Assessor noted Mr Wood had come to multiple surgical treatment, being:
(a)	right wrist - arthroscopic debridement of the wrist with excision of dorsal wrist ganglion and open right carpal tunnel release in November 2014;
(b)	left wrist - arthroscopic excision of dorsal wrist ganglion in April 2015, and
(c)	left wrist – endoscopic carpal tunnel release in April 2019.
56.	The Lead Medical Assessor noted that despite surgical treatment Mr Wood remains symptomatic with persistent pain and weakness.
57.	The Lead Medical Assessor observed that while Mr Wood denied any pre-existing wrist or elbow problems prior to commencing employment with UGL he had sustained “other injuries” particularised in the following terms:
“16 Nov 19: Motorbike accident (rear-ended) resulting in concussion, neck lower back, and left elbow injuries.
2014: right wrist injury from a heavy train door (no medical treatment sought).”
58.	The Lead Assessor relevantly noted that while there was no bilateral elbow scarring, there was bilateral wrist scarring:
“right wrist: consistent with open carpal tunnel release.
left wrist: consistent with arthroscopic carpal tunnel release.”
59.	The Lead Medical Assessor provided assessment of whole person impairment resulting from injury sustained to his right upper extremity (wrist, elbow, median nerve), left upper extremity (wrist, median nerve) and skin (bilateral scarring to the wrists) at 13% whole person impairment, which included assessment of 0% whole person impairment for TEMSKI/scarring. Relevant to his assessment for TEMSKI/scarring the Lead Medical Assessor provided comment “normal surgical scars, small, not noticeable and don’t interfere.”
60.	In response to questioning regarding his assessment of permanent impairment resulting from injury sustained to his right upper extremity (wrist, elbow, median nerve), left upper extremity (wrist, median nerve) and skin (bilateral scarring to the wrists) the Lead Medical Assessor relevantly provided opinion Mr Wood did not suffer from any previous injuries, pre-existing conditions or abnormalities, there was no proportion of the assessed whole person impairment due to pre-existing injury, abnormality or condition and accordingly there was no deductible proportion.
61.	In providing brief comment regarding other medical opinions and findings in evidence, the Lead Medical Assessor referred to the reporting of Dr Bodel dated 28 July 2020, 
8 December 2020 and 19 May 2022, with explanation that his opinion differed to that of 
Dr Bodel due to Dr Bodel finding sensory change and restricted range of motion on his examination of Mr Wood whereas the Lead Medical Assessor did not on his assessment of Mr Wood.
Review of the independent medical evidence
Dr Bodel
62.	Mr Wood was independently assessed by Dr Bodel in his capacity as independent medical examiner. Dr Bodel is an orthopaedic surgeon. Dr Bodel provided a number of reports. 
Dr Bodel had the opportunity to assess Mr Wood on 28 July 2020 via videoconferencing, and on 8 December 2020 and 19 May 2022 face to face. In neither his reporting on 
8 December 2020 or his most recent reporting on 19 May 2022 did Dr Bodel record a history of relevant pre-existing injury, abnormality or condition.
63.	In his report dated 8 December 2020 Dr Bodel described Mr Wood becoming symptomatic in late 2013. Dr Bodel described Mr Wood as coming to initial surgical treatment in the nature of arthroscopic debridement of the right wrist with excision of dorsal wrist ganglion and open carpal tunnel release, subsequent surgical treatment in the nature of arthroscopic debridement of the left wrist with excision of dorsal ganglion and further subsequent surgical treatment in the nature of left endoscopic carpal tunnel release. Dr Bodel assessed Mr Wood at 32% whole person impairment resulting from injury to his left upper extremity (left elbow, left shoulder, left wrist, left median nerve) and injury to his right upper extremity (right elbow, right shoulder, right wrist, right median nerve). Dr Bodel provided opinion “there is no indication clinically of any pre-existing abnormality or condition and no basis for deduction for pre-existing impairment.”
64.	In his report dated 19 May 2022 Dr Bodel again described the circumstances of Mr Wood’s injury and on this occasion, Dr Bodel noted he was required to assess Mr Wood’s bilateral wrist scarring. On examination Dr Bodel relevantly reported:
“The patient has healed scarring over the dorsum of both wrists with a 6cm scar on the dorsal wrist crease on the right side and a 3cm scar on the left side. There is an open healed carpal tunnel scar on the volar surface of the right wrist and an endoscopic scar on the volar surface of the left wrist. These scars are rated collectively under the TEMSKI Scale at a 1% whole person impairment as mildly complicated surgical scarring. The most significant scarring is the right dorsal wrist scar for excision of the ganglion.”
65.	In response to specific questioning regarding his reasons for his assessment of Mr Wood’s bilateral wrist scarring, Dr Bodel said:
“The reason is that the scarring is mildly complicated surgical scarring.
The scarring does have some pigmentation but no tethering to underlying deep structures.
It is clearly visible particularly over the dorsum of the right wrist and to a lesser extent the left wrist when viewed clinically and the scars are easily localised.
There is a mild tenderness in the scars.
The quality of these scars under the TEMSKI scale rate as a 1% whole person impairment in my view.”
66.	On this occasion Dr Bodel assessed Mr Wood with 33% whole person impairment resulting from injury to his left upper extremity (left elbow, left shoulder, left wrist, left median nerve), injury to his right upper extremity (right elbow, right shoulder, right wrist, right median nerve), and bilateral wrist scarring. Dr Bodel again said, “there is no deduction for pre-existing impairment.”
Dr Rimmer
67.	Mr Wood was independently assessed by Dr Rimmer in his capacity as independent medical examiner. Dr Rimmer is an orthopaedic surgeon. Dr Rimmer provided two reports. 
Dr Rimmer had the opportunity to assess Mr Wood on one occasion, being on 
15 February 2023.  In his reporting Dr Rimmer did not record a history of relevant pre-existing injury, abnormality or condition.
68.	As did Dr Bodel, Dr Rimmer described Mr Wood becoming symptomatic while working with UGL and coming to initial surgical treatment in the nature of arthroscopic debridement of the right wrist with excision of dorsal wrist ganglion and open carpal tunnel release, subsequent surgical treatment in the nature of arthroscopic debridement of the left wrist with excision of dorsal ganglion and further subsequent surgical treatment in the nature of left endoscopic carpal tunnel release. On examination of Mr Wood’s wrists, Dr Rimmer relevantly noted “three were well healed scars consistent with known surgery”.
69.	Dr Rimmer assessed Mr Wood with 12% whole person impairment resulting from injury to left upper extremity (left wrist) and right upper extremity (right wrist) and following 1/10th deduction under s 323 of the 1998 Act for pre-existing injury, abnormality or condition, ultimately assessed him with 11% whole person impairment resulting from injury to left upper extremity (left wrist) and right upper extremity (right wrist). In his assessment Dr Rimmer made no mention of Mr Wood’s bilateral wrist scarring.
Legal considerations
Legislation and Guidelines
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70.	Section 323 of the 1998 Act relevantly provides:
“(1)	In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury … or that is due to any pre-existing condition.
(2)	If the extent of a deduction under this section (or part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…
(3)	The reference in subsection (2) to medical evidence is reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.”
71.	Chapter 1 of the Guidelines provides for deductions for pre-existing condition or injuries.
72.	Clause 1.27 provides: 
“The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury.”
73.	Clause 1.28 provides:
“In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. The proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
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74.	Chapter 14 of the Guidelines provides for assessment of permanent impairment of the skin.
75.	Clause 14.4 provides:
“AMA5 Table 8-2 (p 178) provides the method of classification of impairment due to skin disorders. Three components – signs and symptoms of skin disorders, limitations in ADL and requirements for treatment – define five classes of permanent impairment. The assessing specialist should derive a specific percentage impairment within the range for the class that best describes the clinical status of the claimant.”
76.	Clause 14.6 provides:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not of themselves, rate an impairment.”
77.	Clause 14.7 provides:
“The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1 below) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0-9%) due to skin disorders into five categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0-4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system.”
78.	Clause 14.8 provides:
“The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.”
79.	Clause 14.9 provides:
“Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.”
80.	Table 14.1 particularises the following criteria, confirms the table uses the principles of ‘best fit’, and directs the Medical Assessor to refer to cl 14.8 in its application and to “assess the impairment to the whole skin system against each criteria and then determine which impairment category fits (or describes) the impairment”:
(a)	description of the scar(s) and/or skin condition(s) (shape, texture, colour);
(b)	location;
(c)	contour;
(d)	ADL/treatment, and
(e)	adherence to underlying structures.
Authorities
81.	At this point it is useful to note some authority we consider to be central to complaint made by UGL and by Mr Wood.
82.	In Ferguson v State of New South Wales the court cited with approval NSW Police Force v Daniel Wark where the court said:
“The pre-eminence of the clinical observations cannot be underrated. The judgment as to the significant or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.”
83.	The task of the Medical Assessor was described by the court in State of New South Wales v Kaur:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise…”
84.	Justification of intervention by an Appeal Panel such as ours was also discussed by the court in Ferguson:
“The Appeal Panel accepted that intervention was only justified: if the categorization was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
85.	The matter of Ferguson was cited with approval by the court in Parker v Select Civil Pty Limited. 
86.	In determining UGL’s appeal and Mr Wood’s appeal, we are mindful that in Campbelltown City Council v Vegan the Court of Appeal held 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. However, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Discussion
87.	It is evident the task of the Lead Medical Assessor was to assess Mr Wood as he presented on the day of the examination and to apply his own clinical judgment in the application of the Guidelines. It is also evident the Medical Assessor was not bound to agree with findings of other assessors and nor was he required to choose between their assessments.
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88.	The Appeal Panel is not of the view the MAC contains demonstrable error. 
89.	The Appeal Panel does not accept UGL’s submission the Lead Medical Assessor failed to follow reporting format directed by the President.  The Appeal Panel accepts Mr Wood’s submission that (a) UGL has failed to provide the source of the reporting format directed by the President and (b) the manner in which the Lead Medical Assessor failed to follow reporting format directed by the President.  While the Appeal Panel accepts there is a Commission template provided to a Medical Assessor to assist with the drafting of a MAC, the Appeal Panel is unaware of any directive of the President that a Medical Assessor “follow reporting format” and in any event UGL has not articulated the manner in which the Lead Medical Assessor has failed to “follow reporting format”.
90.	The Appeal Panel does not accept UGL’s submission UGL was denied procedural fairness in that the Lead Medical Assessor referred to the opinion provided by Dr Bodel in his capacity as independent medical examiner but failed to refer to the opinion provided by Dr Rimmer in his capacity as independent medical examiner. The Appeal Panel accepts Mr Wood’s submission the Lead Medical Assessor is not required to refer to all of the evidence available to him in the MAC and that in referring to the reasoning provided by Dr Bodel, the Lead Medical Assessor was noting a difference in his findings at the time of his assessment to those findings noted by Dr Bodel at the time of his examination. In such circumstances the Appeal Panel is not of the view any failure by the Lead Medical Assessor to refer to the opinion Dr Rimmer in the MAC has denied UGL procedural fairness, particularly when the Appeal Panel notes the Lead Medical Assessor has relied on his own clinical examination of Mr Wood on the day of assessment when assessing whole person impairment at 13% and Dr Rimmer has provided an assessment of whole person impairment at 12%, being a similar assessment to that of the Lead Medical Assessor.
91.	The Appeal Panel does not accept UGL’s submission the Lead Medical Assessor failed to give reasons for not undertaking deduction for prior injury, condition or abnormality in accordance with s 323 of the 1987 Act. While the Lead Medical Assessor took a history from Mr Wood on the day of assessment that he denied any pre-existing bilateral wrist or elbow injuries, he noted Mr Wood had sustained a right wrist injury in 2014 for which he sought no medical treatment.  Dr Bodel did not record a history of relevant pre-existing injury, abnormality or condition in any of his reports following assessments on 28 July 2020, 
8 December 202 and 19 May 2022 and in providing assessment of whole person impairment, accepted there was no clinical indication of any pre-existing injury, abnormality or condition and made no deduction for pre-existing injury, abnormality or condition.  Dr Rimmer similarly did not record a history of relevant pre-existing injury, abnormality or condition in his reports following assessment on 15 February 2023 but in providing assessment of whole person impairment Dr Rimmer made 1/10th deduction for pre-existing injury, abnormality or condition, without either explanation for the basis for making such deduction or reasoning for making such deduction.  In response to specific questioning regarding “deduction (if any) for the proportion of the impairment that is due to previous injuries, pre-existing conditions or abnormality” the Lead Medical Assessor provided opinion Mr Wood did not suffer from any relevant previous injuries, pre-existing conditions or abnormalities, and confirmed in the circumstances that there was no deductible proportion. 
92.	The Medical Appeal Panel accepts the Lead Medical Assessor considered the question of deduction for the proportion of the impairment that is due to relevant previous injuries, pre-existing conditions or abnormality against a back ground of a previous right wrist injury in 2014 for which Mr Wood sought no treatment, and based on the evidence and his own clinical examination of Mr Wood on the day of assessment the Lead Medical Assessor concluded Mr Wood did not suffer from any relevant previous injuries, pre-existing conditions or abnormalities and no deductible proportion was required.
93.	For reasons canvassed above, the Appeal Panel is not of the view the MAC contains demonstrable error.
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94.	With complaint made by Mr Wood the Lead Medical Assessor failed to apply the TEMSKI/scarring criteria in assessing bilateral wrist scarring and failed to provide reasoning as to his assessment of Mr Wood’s scarring with reference to the TEMSKI/scarring criteria, with the evidence meeting the criteria for an assessment of 1% whole person impairment, the Appeal Panel received photographs of Mr Wood’s scarring to wrists bilaterally on the appeal.
95.	It is evident from Medical Assessor Gothelf’s review of the photographs of Mr Wood’s scarring to wrists bilaterally that he accepted that at the time of the Lead Medical Assessor’s assessment the surgical scarring sustained by Mr Wood was stable.  Although Medical Assessor Gothelf accepted the quality of the photographs was not optimal, he concluded the photographs did not demonstrate any qualities of TEMSKI/scarring which would cause him to quibble with the Lead Medical Assessor’s assessment of 0% whole person impairment. 
96.	In discussing Dr Bodel’s comments and assessment of 1% whole person impairment, Medical Assessor Gothelf notes the appearance of TEMSKI/scarring is a clinical judgement and the Appeal Panel accepts the Lead Medical Assessor used his clinical judgement when he assessed Mr Wood at 0% whole person impairment, being assessment consistent with his finding “normal surgical scars, small, not noticeable and don’t interfere” and cl 16.6 of the Guidelines, which provides “a scar may be present and rated as 0% WPI” and provides comment “note that uncomplicated scars for standard surgical procedures do not of themselves, rate an impairment.”
97.	For reasons canvassed above, the Appeal Panel is not of the view the assessment was made on the basis of incorrect criteria and the MAC contains demonstrable error.
CONCLUSION
98.	For these reasons, the Appeal Panel has determined that the MAC issued on 
28 August 2024 should be confirmed.