austlii:nsw/NSWPICMP/2025/495
General information, not legal advice.
NSWPICMP
2025-07-10
Original judgment source is linked above.
Johnson v State of New South Wales (Hunter New England Local Health District) [2025] NSWPICMP 495
State of New South Wales (Hunter New England Local Health District)
WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) failed to assess scarring; not included in referral but part of medical dispute between the parties based on Application and material attached; Skates v Hills Industries Ltd applied; scarring assessed by Appeal Panel; deduction pursuant to section 323; MA made deduction of one-third; whether deduction available on the medical evidence; Cole v Wenaline Pty Limited, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq), and Ryder v Sundance Bakehouse discussed; deduction confirmed; Held - MAC revoked, scarring added to assessed impairment.
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
(a) from the applicant, clear, colour photographs of the scar on her left knee, including the full length of the scar, and
(b) from the respondent the report of A/Prof Waller, dated 1 August 2023, on which the offer of compromise was made on 17 November 2023.
(a) the Medical Assessor failed to assess all body systems claimed, specifically in respect of scarring/TEMSKI, and
(b) the Medical Assessor failed to properly apply s 323 of the 1998 Act. The finding of a 1/3 deduction is unsupported by the available medical evidence, and there is an absence of radiology prior to the work-related injury. On the face of the evidence, no deduction should be made, or a deduction of one tenth only.
(a) the Medical Assessor did not err in failing to assess scarring, as it was not part of the referral for assessment and no amendment to the referral was request prior to the assessment, and
(b) the Medical Assessor has appropriately engaged with the relevant considerations for making a deduction, consistent with the relevant case law and medical evidence available in this case.
"Secondly, s 328(2) requires that the review 'is limited to the grounds of appeal on which the appeal is made.' Because the gateway function of the Registrar is satisfied if 'at least one of the grounds' has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant's application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made."
"The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the "referral" to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute."
"The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates' application; indeed, it was why the documents setting out both sides' claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a "medical dispute" because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute." (Skates at [46])
(a) a claim for 21% whole person impairment (made on 20 October 2023) (which includes 1% for scarring, but does not include the right lower extremity);
(b) an amended claim for 27% whole person impairment (made on 22 July 2024);
(c) report of Dr Dixon dated 5 July 2023, which includes an assessment of 1% for scarring, and
(d) supplementary reports of Dr Dixon dated 13 June 2024.
"On examination, she had a 16cm scar over the right knee and an 18cm scar over the left knee, consistent with approach for total knee replacements."
"That for her arthrotomy scar which is reasonably healed but has required re-operation and has associated sensory changes with some tenderness of the scar, which is painful if bumped, is from TEMSKI Table 14.1, Page 74 of the WorkCover Guides, 1% whole person impairment."
"No swelling. Well-healed midline scar. Well healed surgical scar. With decreased > > sensation lateral to the scar in the distribution of the infrapatellar branch of the > > saphenous nerve. Stable ligaments."
"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."
"DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY > > a) In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities: > > (i) Osteoarthritis left knee. > > (ii) Obesity. > > b) The previous injury, pre-existing condition or abnormality directly contributes to the > > following matters that were taken into account when assessing the whole person > > impairment that results from the injury, being the matters taken into account in 10a, > > and in the following ways: > > (i) Ms Johnson had established osteoarthritis in the left knee, first recorded in the general practitioner's records on 14 January 2015 and noted on 22 March 2018, prior to an injury at work on 2 August 2018. In the absence of pre-existing osteoarthritis in the knee, it is unlikely that the injury sustained woiuld have led to any significant impairment in the left knee. Ms Johnson has previousliy had a knee replacement for osteoarthritis in her right knee. Whilst there was a history of injjury to the right knee in the 1980s, this is suggestive of her arthritis being a constituional process rather than the consequence of acute injury. The accepted factors to developing osteoarthritis in the knee are age, being overweight, a history of previous trauma, familyi history, female sex. Published data does not suggest prolonged standing and walking is a contributor, although I note it has not been proposed that the nature of Ms Johnson's employment have contributed to her osteoarthritis. > > c) Whilst the extent of the deduction is difficult or costly to determine the available > > evidence is that the deductible proportion is large and a deduction of one tenth is at > > odds with the available evidence. In my opinion the deductible proportion is one-third > > for the following reasons: > > (i) As noted above, Ms Johnson has a history of presentation of osteoarthritis in the > > knee back to 2015. She has a number of accepted risk factors for developing osteoarthritis, unrelated to her employment. In the absence of the pre-existing condition, it is unlikely the injury would have led to any significant impairment assessable consequent to injury in the knee." [sic]
"(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 (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. > > (2) If the extent of a deduction under this section (or a 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. > > **Note - ** > > So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). > > (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter. > > (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section. > > (5) (Repealed) > > **Note - ** > > Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies."
"As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
"What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great."
State of New South Wales (Hunter New England Local Health District)
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 Rob Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
Proportion of permanent impairment due to pre-existing injury, abnormality or condition
Sub-total/s % WPI (after any deductions in column 6)
Total % WPI (the Combined Table values of all sub-totals)
Johnson
State of New South Wales