Australian Health & Nutrition Association Ltd v Steane
[2025] NSWPICMP 485
•3 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Australian Health & Nutrition Association Ltd v Steane [2025] NSWPICMP 485 |
| APPELLANT: | Australian Health & Nutrition Association Limited |
| RESPONDENT: | Mark Christopher Steane |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr James Bodel |
| MEDICAL ASSESSOR: | Dr Tommasino Mastroianni |
| DATE OF DECISION: | 3 July 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); agreement by both parties that measurements for range of movement of respondent’s shoulders in MAC were contradictory and that this was an error; issue whether Medical Assessor (MA) erred by including a rating for resection arthroplasty of distal clavicle; respondent re-examined to establish range of movement; Held – Appeal Panel held MA erred in including rating for resection arthroplasty as respondent had not undergone procedure; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 April 2025 Australian Health & Nutrition Association Limited, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 March 2025.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant employs Mark Christopher Steane as a trade assistant. His employment commenced in 2007. On 4 May 2022 he was lowering a pipe when he injured his right shoulder. He came under the care of orthopaedic surgeon Dr Ed Bateman, who on
25 August 2023 performed an arthroscopic rotator cuff repair and a biceps tenodesis.At the request of the respondent’s solicitors, the respondent was examined on 25 June 2024 by orthopaedic surgeon Dr Gehr. Dr Gehr provided two reports on that date relating to his examination in which he advised on several matters relating to the respondent’s injury, including that he assessed the degree of the respondent’s permanent impairment from his injury is 16% whole person impairment (WPI). That was a combination of 22% upper extremity impairment for loss of range of motion of the respondent’s right shoulder and 5% upper extremity impairment for a “resection arthroplasty of the distal clavicle”. That upper extremity impairment, when combined to 22%, in turn converted to 16% WPI.
Dr Gehr noted within his reports that the respondent had developed pain in his left shoulder approximately 10 months after injuring his right shoulder and Dr Gehr advised that the respondent had a consequential injury to his left shoulder. Dr Gehr found that the respondent had normal movement of his left shoulder and, because of that, Dr Gehr did not assess the respondent to have an impairment relating to his left shoulder.
Relying on that report of Dr Gehr, the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation from it for 16% WPI from his injury. Following that, the insurer organised for the respondent to be examined by orthopaedic surgeon Dr Ron Haig on 19 September 2024. In a report dated 20 September 2024 Dr Haig advised that he assessed the degree of the respondent’s permanent impairment relating to his right shoulder injury is 8% WPI. That was on the basis of the restricted range of movement the respondent had of his right shoulder. Dr Haig also advised that the respondent did not have a consequential injury to his left shoulder. It would seem that this opinion of Dr Haig was based on the respondent’s answers to questions Dr Haig had put to him, to which the respondent advised he had no complaints regarding his left shoulder.
On 16 October 2024 the insurer wrote to the respondent advising him that it disputed he was entitled to any compensation for permanent impairment from his injury, and further advised him that this was based on Dr Haig’s assessment. It provided him with a copy of Dr Haig’s report. It subsequently confirmed its decision by a letter dated 28 November 2024 sent to the respondent’s solicitors.
| Movement | Left | Right |
| Forward flexion | 180° | 100° |
| Extension | 50° | 25° |
| Abduction | 180° | 60° |
| Adduction | 50° | 30° |
| Internal rotation | 80° | 50° |
| External rotation | 80° | 50° |
Following that, the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation for permanent impairment. The matter was remitted to a Commission Member, namely Mr Michael Wright, who on 30 January 2025, with the consent of the parties, remitted the matter to the President of the Commission so that it could be referred to a Medical Assessor to assess the degree of the respondent’s permanent impairment from the injury to his right shoulder.
A referral was duly issued on 31 January 2025 to the Medical Assessor. The Medical Assessor examined the appellant on 4 March 2025 to conduct the assessment. As said, the MAC was issued on 11 March 2025, in which the Medical Assessor certified that he assessed the degree of the respondent’s permanent impairment from his injury is 12% WPI. He advised that his assessment was done on the bases of the respondent restricted range of motion of his right shoulder (in regards to which he rated the respondent had 16% upper extremity impairment) and the respondent having a resection arthroplasty of the distal clavicle (for which he rated the respondent had an upper extremity impairment of 5%). The Medical Assessor observed those ratings combined to 20% upper extremity impairment which converted to 12% WPI.
With respect to the respondent’s impairment due to the restricted range of motion of his right shoulder the Medical Assessor set out under the heading “Findings on Physical Examination” the range of motion he found the respondent had for each of the several planes of motion of both the respondent’s shoulder. He did likewise in part 10b of the MAC, wherein he explained how he computed the respondent’s permanent impairment, the range of motion the respondent had for each of the several planes of motion of the shoulder for both the respondent’s left and right shoulders. The figures however the Medical Assessor detailed in each of these parts of the MAC differed in for internal rotation and external rotation. The figures in part 5 were:
The figures in part 10b were:
AMA5
REFS
Movement
Left
% Right
UEI
Right
% Left
UEI
P476
F16-40
Flexion
180°
0
100°
5
Extension
50°
0
25°
2
P477
F16-43
Abduction
180°
0
60°
6
Adduction
50°
0
30°
1
P479
F16-46
Internal rotation
90°
0
40°
3
External rotation
90°
0
40°
1
Subtotals
0
16
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 the respondent should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found the MAC contained a demonstrable error and in order to correct that error it was necessary for the Appeal Panel to obtain further clinical data which could only be done by examining the respondent. The Appeal Panel appointed one of its members, namely Medical Assessor James Bodel, to conduct that examination.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that is unclear whether the Medical Assessor correctly calculated the respondent’s impairment relating to his left shoulder and this is because the Medical Assessor recorded in different parts of the MAC different figures for the respondent’s range of movement of his shoulders. The appellant noted that if the respondent’s impairment were to be based on the figures contained within part 10b of the MAC his upper extremity impairment would be 18%, whereas the Medical Assessor tallied them to 16%. The appellant observed that the relevant paragraph from AMA5 requires that the values for each plane of motion of the shoulder to be added, not combined. The appellant noted too that the values in part 5 add to 17% upper extremity impairment. The appellant submitted that the Medical Assessor’s error of providing conflicting values for the respondent’s range of movement of his shoulder is such that the MAC contains a demonstrable error.
The appellant further submitted that the Medical Assessor erred by including in his assessment of the degree of the respondent’s permanent impairment from his injury a rating for resection arthroplasty of the distal clavicle. The appellant submitted that the respondent did not undergo that procedure, but rather had an arthroscopic rotator cuff repair and biceps tenodesis of his right shoulder. The appellant submitted that the Medical Assessor by including in his assessment a rating for resection arthroplasty made an error and also based his assessment on incorrect criteria.
In reply, the respondent submitted that the surgery he had included a debridement of the acromium which meets the definition of a resection arthroplasty of the distal clavicle. The respondent conceded however that as to whether that is the case is “a question requiring a technical answer best provided by a medical panel”.
The respondent acknowledged that the figures the Medical Assessor provided for the range of motion within part 5 of the MAC differed from the figures he provided in part 10b of the MAC. The respondent submitted that “for the sake of efficiency” the Medical Assessor should be asked to consult his notes and records and simply correct the inconsistency under the slip rule. The respondent submitted that if that could not be done then he should be re-examined.
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.
Dealing firstly with the issue of Medical Assessor including a rating for a resection of the distal clavicle in his assessment of the respondent’s permanent impairment of the right shoulder, the Appeal Panel finds that the Medical Assessor erred by doing so. The procedure the respondent had done on 27 August 2023 was an arthroscopic rotator cuff repair and biceps tenodesis of the right shoulder. Dr Bateman’s report on the surgery he undertook on the respondent’s right shoulder is this:
“Operation Report Mark Steane [DOB redacted] MRN
Semireclined, no paralysis, routine prep and drape with two coats of alcoholic chlorhexidine.
Time out completed to confirm correct patient and procedure.
EUA confirmed good passive ROM.
Routine insertion of 4.0mm arthroscope via a posterior portal to examine the glenohumeral joint. The articulation was intact. pathology was noted. The long head of biceps was released from the glenoid.
A mini sub pectoral approach was made to retrieve the long head of biceps. Care was taken to protect the musculocutaneous nerve. The tenodesis was performed with an Arthrex pec button and two strand repair. The device was deployed and sutures tensioned. Wound then closed in layers with vicryl and stratafix.
A subacromial bursectomy was performed to debride the space and aid view. The cuff tear was debrided. The footprint was prepared and a Healicoil PK anchor securely positioned on the articular margin. The sutures were passed in a locking fashion with the clever hooks. The sutures were tied and then two Versa lock anchors were used to complete the suture bridge construct in the lateral aspect of the greater tuberosity.
The acromium was debrided. The space was lavaged and haemostasis achieved. A pain pump at the base of the coracoid was inserted along with local infiltration. Wounds closed with prolene and dressings applied”
The procedures Dr Bateman performed did not involve a resection arthroplasty of the distal clavicle. The respondent is incorrect in his submission that a debridement of the acromion is a resection arthroplasty of the distal clavicle. A debridement of the acromion involves the removal of bone and soft tissue from the acromion, which will create space in the shoulder joint to relieve pressure on the rotator cuff tendons. The acromion is a different bone from the clavicle. It connects to the clavicle to perform the acromioclavicular joint. A resection arthroplasty of the distal clavicle involves removing a portion of the outer end of the clavicle, the purpose of which is to relieve pain and increase movement. A debridement of the acromion does not involve any resection of the clavicle.
The subacromial bursectomy that Dr Batemen performed involves the removal of an inflamed bursa and does not involve any resection of bone at all.
Consequently, the Medical Assessor was wrong to include a rating for resection arthroplasty of the distal clavicle.
The Appeal Panel also considers that the inconsistency between what the Medical Assessor recorded within part 5 of the MAC for his measurements of the respondent’s internal rotation and external rotation of his left and right shoulders and that which he recorded in part 10b of the MAC is an error such that the MAC contains a demonstrable error. It is not known which figures are correct. The difference in the figures is material in that those recorded in part 5b corelate with the respondent having an upper impairment of his right shoulder of 17% and those recorded in 5b correlate with his having an upper impairment of 18%.
As indicated earlier, to correct that error the Appeal Panel considered it necessary that the respondent be examined again. That was done by Medical Assessor Bodel and his report to the Appeal Panel is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W29399/24 |
Appellant: | Australian Health & Nutrition Association Limited |
Respondent: | Mark Christopher Steane |
Date of Determination: | 12 June 2025 |
Examination Conducted By: | James Bodel |
Date of Examination: | 12 June 2025 |
1.The workers medical history, where it differs from previous records
I have reviewed the history as recorded by Dr Honeyman in the Medical Assessment Certificate at the time of his assessment on 4 March 2025 and Mr Steane confirms that this is the mechanism of injury that applies to his injury to the right shoulder.
2.Additional history since the original Medical Assessment Certificate was performed
At the time of the appeal matter, it was noted that the appellant had observed that there are two sets of numbers to represent the restricted range of shoulder movement. There is the set of numbers in the section of the MAC about the findings on physical examination, and then a slightly different set of numbers in the answer to Question 10b. where an explanation of the reasoning for the level of Whole Person Impairment is made.
The Appeal Panel’s dilemma was therefore that it was not known as to which was the correct set of numbers and therefore a re-examination was inevitable.
3.Findings on clinical examination
I have assessed Mr Steane today in my office in Sydney. He rises from the chair without difficulty. He undresses above the waist, removing all clothing above the waist, exposing both shoulders and the upper part of the back.
Careful inspection from behind shows that there is quite significant wasting in the muscles of the shoulder girdle, particularly the supraspinatus and infraspinatus muscles over the scapula posteriorly.
The scarring on the front and top of the shoulder is a very fine, well-healed scar and there are four or five scars which are barely perceptible, and they are all well-healed without any tethering and they would all rate as a 0% WPI under the TEMSKI scale in this circumstance.
The range of movement recorded today is as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 100° | 180° |
| Extension | 40° | 50° |
| Adduction | 20° | 50° |
| Abduction | 90° | 180° |
| Internal Rotation | 50° | 90° |
| External Rotation | 30° | 90° |
I have carefully read the operation report prepared by Dr Ed Bateman and Dr Jason Hockings for the surgery done on 25 August 2023. There is no record in that operative report to indicate the presence of an excision at the outer end of the clavicle (a resection arthroplasty).
Therefore, there is no 5% Upper Extremity Impairment rating for that condition, which Dr Honeyman has used in his assessment of the overall level of Whole Person Impairment. That surgical procedure has not been performed and therefore there is no separate rating for that possible clinical entity.
4.Results of any additional investigations since the original Medical Assessment Certificate
Nil.
5.Comment
The claimant has the rateable restriction of right shoulder movement. The only rateable impairment is the range of motion that I have assessed here today and that is assessed using Figure 16-40 on page 476, Figure 16-43 on page 477 and Figure 16-46 on page 479.
There is a 14% Upper Extremity Impairment and that becomes an 8% Whole Person Impairment.
As indicated above, there is no additional rating for the resection arthroplasty of the AC joint, as that was not done at the time of the surgery.
The final level of Whole Person Impairment therefore for the injury is an 8% Whole Person Impairment in this case.”
The Appeal Panel considers that Medical Assessor Bodel conducted a thorough examination of the respondent’s shoulders. The Appeal Panel consequently adopts his findings from his examination.
Based on those findings, the Appeal Panel accepts what Medical Assessor Bodel has said under the heading Comment in his report that the restricted range of movement the respondent has in his right shoulder equates to 14% upper impairment, which in turn converts to 8% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W29399/24 |
Applicant: | Mark Christopher Steane |
Respondent: | Australian Health & Nutrition Association Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Peter Honeyman 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 NSW workers compensation guidelines | 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) |
| Right upper extremity (shoulder) | 4/05/2022 | Chapter 2 | Figures 16-40, 16-43, 16-46 | 8% | - | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0