Action Botany Pty Ltd v Farage
[2025] NSWPICMP 35
•16 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Action Botany Pty Ltd v Farage [2025] NSWPICMP 35 |
| APPELLANT: | Action Botany Pty Limited |
| RESPONDENT: | Gabi Ibrahim Farage |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 16 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal by employer from 30% whole person impairment for injuries to the left shoulder and scarring; whether Medical Assessor (MA) had properly applied Chapter 2.20 of the Guides and page 453 of AMA5 regarding the measurement of contralateral joints; Held – appeal misconceived; MA properly applied the guidelines: Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 October 2024 Action Botany Pty Limited, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 September 2024.
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.
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.
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.
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 Guides) 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
On 16 September 2024 an amended referral was made to the Medical Assessor seeking a WPI assessment caused by injury to the left upper extremity (shoulder, elbow, wrist) and scarring TEMSKI on 15 November 2018.
Mr Farage (the respondent) was employed as a storeman and on 15 November 2018 whilst picking up a television set to place on a pallet, he felt pain in his left shoulder.
Non-operative management was unsuccessful and his symptoms persisted. He came to surgery on 24 July 2019 in the form of an arthroscopic procedure and open sub-pectoral biceps tenodesis. This did not assist Mr Farage's symptoms, in fact his arm was very sore following the operation and he could not move it. He was referred to pain management under Dr Nazaha.
He was reviewed by Dr Su, an orthopaedic specialist and neurosurgeons Dr Singh and Dr Kong.
A WPI of 30% was certified.
PRELIMINARY REVIEW
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.
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. It was not requested by the appellant employer and the panel could see no reason for such a re-examination to be conducted.
EVIDENCE
Documentary evidence
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
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
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
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.
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.
The MAC
This is a single issue case and the relevant passages that are impugned by the appellant employer related to the involvement of the right shoulder.
In his examination the Medical Assessor found:[1]
[1] Appeal papers page 20.
“Inspection of the shoulders reveals wasting of the left shoulder.
…
Both shoulders were tender, more so the left shoulder where there is allodynia. Both shoulders were restricted. ….
Shoulder Movements
Movement
Right
% Upper Extremity
Impairment
Left
% Upper Extremity
Impairment
Flexion
90°
6
40°
10
Extension
40°
1
20°
2
Abduction
90°
4
50°
6
Adduction
0
2
0
2
Internal rotation
40°
3
20°
4
External rotation
60°
0
30°
1
Total
16%
Total
25%
I made no deduction for pre-existing condition nor deduction for the contralateral joint as the contralateral joint is not a normal joint. He has tendinitis in the right shoulder.[2]
…
I note the reports of Dr Powell dated 5 February 2020, 2 April 2020, 15 June 2021, 5 April 2022, 23 August 2022 and 26 September 2022.
I note Dr Powell in the report dated 5 April 2022 deducted the right upper extremity impairment due to restricted shoulder movements from the left upper extremity impairment. I have made no deduction for the contralateral joint as it’s not a normal joint (AMA5, pg.453:para.16.4C).
I note the report of Dr Frank Machart dated 19 March 2024. Dr Machart assessed 4% WPI for the left shoulder injury and deducted the impairment in the right shoulder from the left shoulder. He does not give any reasons why he made the deduction. He does not assess the left elbow or left wrist as he did not diagnose an injury related to work.”[3]
SUBMISSIONS
[2] Appeal papers page 23.
[3] Appeal papers page 23.
Appellant employer
The appellant employer firstly submitted that the Medical Assessor had applied incorrect criteria by measuring the contralateral right shoulder and finding there to be restrictions in motion therein, caused by tendinitis.
We were referred to Chapter 2.20 of the Guides. It was submitted that the Medical Assessor had failed to subtract the impairment to the contralateral right shoulder from the assessment referable to the left shoulder, and thus contravened the guideline.
The demonstrable error claimed by the appellant employer consisted of an assertion that the Medical Assessor had taken into consideration the symptoms reported in the right shoulder, despite the right shoulder not forming “part of the Medical Assessor’s referral”.
We were referred to AMA 5, paragraph 16.4C in that regard. There was an obligation, the appellant employer submitted, for the Medical Assessor to disclose his path of reasoning in that regard.
The appellant employer noted that the medico-legal experts had deducted from their assessments of the left shoulder, the impairment of the right shoulder.
As that issue was identified in the evidence before the Medical Assessor, it was submitted that more extensive reasons were required to explain his ultimate conclusion. A deduction of 9% upper extremity impairment (UEI) should have been made, the appellant employer said.
Respondent claimant
Mr Farage submitted that whilst the right shoulder injury of tendonitis did not form part of his claim, it was nonetheless relevant as the right shoulder was thus shown to be restricted in motion.
The appellant employer’s submissions were also incomplete, it was submitted, because if failed to mention that the left shoulder prior to the injury was normal.
The respondent submitted that although the grounds of the appeal were that the Medical Assessor committed a demonstrable error or applied incorrect criteria, the substance of its complaint could be reduced to a single proposition, “that the Medical Assessor failed to make any deduction for the contralateral limb”. This proposition was misconceived, it was alleged, as it was based on a misapplication of Chapter 2.20 of the Guides.
We were referred to Chapter 2.20 of the Guides, AMA 5, and the relevant statement by the Medical Assessor to demonstrate the nature of the appellant employer’s misapprehension.
In view of that analysis was submitted that the opinions of the medico-legal experts, Drs Machart and Powell, were incorrect.
DISCUSSION
Chapter 2.20 of the Guides provides:
“Calculating motion impairment
2.20 When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543) [4].”
[4] This reference is incorrect as the page number at AMA 5 is page 453.
Section 16.4C provides relevantly:
“The measurements reported in the impairment tables and pie charts reflect the accepted average active range of motion for each joint(s). However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities.
If a contralateral normal joint has a less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report.”
We read with interest the submissions of the appellant employer, but were unable to follow its argument as to how the Medical Assessor had fallen into error because he had allegedly failed to deduct the impairment of the uninvolved right shoulder from the impairment to the left shoulder.
The purpose of the methodology set out in Chapter 2.20 of the Guides is to ensure that when calculating impairment for a loss of range of movement, the range of movement measured is compared with that of the contralateral joint so that if the contralateral joint had less than average mobility, the limitation of the range of motion in the “involved joint” would be adjusted.
It can be seen that Chapter 2.20 largely copies the second paragraph we have reproduced from page 453 of AMA 5. The first paragraph of that extract explains that some people have lesser or greater joint flexibility and the measuring of a normal contralateral joint is designed to ensure that the restriction in the range of motion in the injured joint is properly assessed.
It can also be seen that the second paragraph of that extract together with its counterpart in Chapter 2.20 of the Guides requires the rationale for any adjustment to be explained.
The Medical Assessor has explained why he did not employ the terms of the two guidelines, which was because the contralateral joint was not a normal or uninjured joint. The range of motion in that right joint was affected by tendinitis and therefore the contralateral measurement methodology could not be used, as the right joint was not “normal/uninjured.” To repeat, the Medical Assessor said:
“I made no deduction for pre-existing condition nor deduction for the contralateral joint as the contralateral joint is not a normal joint. He has tendinitis in the right shoulder.”
That explanation was adequate to explain the Medical Assessor’s conclusion. If there were any doubt, the Medical Assessor also explained why the methodology used by Dr Machart and Dr Powell was incorrect, as we reproduced above at [20] hereof. He said:
“I note the reports of Dr Powell dated 5 February 2020, 2 April 2020, 15 June 2021, 5 April 2022, 23 August 2022 and 26 September 2022.
I note Dr Powell in the report dated 5 April 2022 deducted the right upper extremity impairment due to restricted shoulder movements from the left upper extremity impairment. I have made no deduction for the contralateral joint as it’s not a normal joint (AMA5, pg.453:para.16.4C).
I note the report of Dr Frank Machart dated 19 March 2024. Dr Machart assessed 4% WPI for the left shoulder injury and deducted the impairment in the right shoulder from the left shoulder. He does not give any reasons why he made the deduction.”
We confirm the Medical Assessor’s findings in that regard.
We were also unable to follow the appellant employer's submission that a 9% UEI should have been assessed. Beyond its bare statement to that effect, there was no explanation as to how the appellant employer had calculated that the left shoulder upper extremity impairment should be reduced by 9%.
We agree, with respect, with the respondent claimant, that this appeal is misconceived.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 September 2024 should be confirmed.
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