Badros v Qantas Airways Limited - [2022] NSWPICMP 93

DETERMINATION OF APPEAL PANEL
CITATION:	Badros v Qantas Airways Limited [2022] NSWPICMP 93
APPELLANT:	Gehran Badros
RESPONDENT:	Qantas Airways Limited
APPEAL PANEL:	Member Carolyn Rimmer Dr James Bodel Dr Gregory McGroder
DATE OF DECISION:	21 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Matter referred to the Medical Assessor (MA) to assess the permanent impairment of both upper extremities as a result of the 6 June 2018 injury and any allegation of a disease injury, or an aggravation thereof, withdrawn; MA considered a "deemed date" and allegation of disease injury and concluded there was no impairment referrable to a frank incident; MA erred by failing to assess the level of permanent impairment caused by the injury on 6 June 2018 because he apparently considered that permanent impairment resulting from injury should instead be measured by reference to causal connection with a differently characterised injury, namely, progressive disease injury caused over a long period by the general nature and conditions of her employment; Held- Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 December 2021 Gehan Badros (Mrs Badros) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 November 2021.
The respondent to the appeal is Qantas Airways Limited (the respondent).
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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mrs Badros sustained an injury to her right hand and right shoulder on 6 June 2018 in the course of her employment as an aircraft worker, when she was pulling a cushion attached to an aircraft seat. As a result of the right shoulder injury and subsequent surgery to the right shoulder, Mrs Badros developed a consequential condition in the left shoulder.
On 12 July 2021 Member Peacock made orders by consent that any allegation of a disease injury, or an aggravation thereof, be withdrawn and that the matter be referred to a MA to assess the permanent impairment of both upper extremities as a result of the 6 June 2018 injury.
The matter was referred to the MA, Dr Roger Pillemer, on 4 November 2021 for assessment of person impairment of both upper extremities as a result of the injury on 6 June 2018.
The MA examined Mrs Badros on 15 November 2021 and assessed 0% whole person impairment (WPI) for the referred injury of 6 June 2018. However, the MA found that
Mrs Badros had 11% WPI in the shoulders.

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 WorkCover Medical Assessment Guidelines 2006.
Mrs Badros did not request that she be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mrs Badros to undergo a further medical examination because there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA 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 MA that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
Mrs Badros’ submissions include the following:
(a)    Ground 1 - The MA had no jurisdiction to assess an injury which was not referred to him. The nature and scope of the MA’s jurisdiction was set out in the referral document;
(b)    The parties agreed that the relevant injury was a frank injury, and this was reflected in the consent orders issued on 12 July 2021;
(c)    All that was before the MA was a medical dispute as to the quantum of WPI for the referred injury. That jurisdiction did not extend to making liability findings on the evidence such as that a nature and conditions injury had ensued;
(d)    In Spicer Axle Australia Pty Limited v Merza [2007] NSWWCCPD 148 the role of the Commission (as opposed to MAs) was considered in determining liability issues such as the cessation of the effect of injury. Section 105 of the 1998 Act gives the Commission exclusive jurisdiction to determine matters arising under the 1998 Act and the Workers Compensation Act 1987 (the 1987 Act) which includes the operation of s 4 of the 1987 Act and the difference between frank and disease injuries. The exclusive jurisdiction is “subject to this Act and the 1987 Act” and there are exceptions, one being the determination of a medical dispute. However, a medical dispute essentially means there must be an assessment of the injury as referred, not an excursion into what injuries may or may not have been sustained by a worker in the course of employment;
(e)    Legal issues are within the jurisdiction of members; Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50. In that case, the effect of a s 66A agreement and its effect on rights to further claims was regarded as a legal question and not a medical dispute. In the present case, the MA imposed his own views as to the effect of s 4, and thus purported to determine a legal dispute which did not exist;
(f)    What occurred here contravened the jurisdictional nature of the MA’s task as described by Meagher JA (Leeming and Simpson JJA agreeing) in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 i.e., “Whether a medical dispute existed was a jurisdictional fact depending on the true character of any dispute between the parties. If there was such a dispute concerning permanent impairment it was required to be resolved in accordance with a medical assessment under Pt 7”. The MA was not presented with a medical dispute as to a disease injury and he erred in considering it;
(g)    Ground 2 – The MA demonstrably erred by failing to assess the injury which was before him (jurisdictional error and a failure to take into account relevant considerations);
(h)    In Peko-Wallsend, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mason J noted at [39] that: “The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision… The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp that a decision maker must take into account those matters which he ‘ought to have regard to’ should not be understood in any different sense in view of his Lordship’s statement on the following page that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’”;
(i)    The corollary to ground 1 is that the frank injury to the right upper extremity, together with the consequential injury to the left upper extremity was never actually assessed (despite the expression of an opinion as to what the WPI for such an injury would theoretically have been had it been assessed);
(j)    Ground 3 – the MA failed to apply the correct criteria to the injury. It follows from grounds 2 and 3 that the criteria required to be applied to the frank injury (together with the consequential injury) were never applied because the correct injury was not assessed;
(k)    The wrong injury was assessed and the appeal should be allowed, and
(l)    The 11% WPI figure postulated, but not applied to the worker’s impairment, should be substituted as a finding in respect of the referred injury by the Appeal Panel.
The respondent’s submissions include the following:
(a)    Ground 1 – The respondent agrees that the MA should not have considered a "deemed date" and allegation of disease injury. Nonetheless, the respondent submits that this did not impact the MA’s assessment of Mrs Badros’ frank injury as referred to him. The MA clearly considered the impairment referrable to a frank incident and determined that Mrs Badros did not have any impairment in this regard;
(b)    Though the MA was not required to assess Mrs Badros for any impairment that may have related to a deemed date of injury, Mrs Badros did not concede that this impacted the MA’s assessment in relation to the frank injury. As such,
Mrs Badros’ submissions in relation to ground 1 of the appeal should fail as there has been no "demonstrable error" on the behalf of the MA in relation to this ground of appeal;
(c)    Ground 2 - the MA did not demonstrably err in not assessing the injury before him;
(d)    On page 4 of the MAC, where the MA had clearly examined Mrs Badros and provided his range of motion examination findings and their relevant upper extremity impairment result. Therefore, he has assessed Mrs Badros’ impairment as required of him by the AMA 5 and the Guidelines;
(e)    It was clear however, that the MA considered that none of the 11% WPI was referrable to the frank injury that had been referred to him. This was specifically noted in his reasoning at paragraph regarding "Reasons for Assessment" where he stated: “However, as I have been given a specific date of injury, namely 6 June 2018 and noting that her shoulder symptoms only came on the next day, in my opinion that incident simply made what was until then an asymptomatic condition become symptomatic, and would not be responsible for her impairment at the present time. This is reflected in Table 2”;
(f)    Therefore, the Medical Assessor has not fallen into any demonstrable error in the assessment of WPI;
(g)    Ground 3 – the MA clearly used the correct criteria for assessing the Mrs Badros’ impairment. As noted above, 2.14 of the Guidelines sets out the criteria to be used for assessing impairment of the shoulder. This was the method that was accepted and used by the MA;
(h)    The MA has assessed Mrs Badros with regard to the correct criteria as contained in AMA 5 and the Guidelines and therefore the MAC was not provided on basis of incorrect criteria and did not contain any error;
(i)    Though not conceded by the respondent, if there has been any error, this may have been in the way the MA dealt with the question of deductible proportion pursuant to section 323 of the 1998 Act. In this regard, the MA should have applied 1.27 and 1.28 of the Guidelines and the principles set out in Cole v Wenaline Pty Limited (2010) NSWSC 78;
(j)    Instead, it was not clear that he had considered this at all as he considered this not applicable given his finding of 0% WPI in relation to the frank injury as pleaded, and
(k)    If the Commission determines that the MA should apply the 11% impairment assessed to the frank injury as requested by Mrs Badros, a reconsideration of the deductible proportion under s 323 of the 1998 Act must be made in accordance with the above requirements.

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 Medical Assessment Certificate

Under “History relating to the injury”, the MA wrote:
“Ms Badros informs me that she had worked for Qantas as an aircraft worker/cleaner on a full time basis since 2001 and continues to be employed by them at the moment, still on a full time basis.
Her history was confirmed of having sustained an injury on 6 June 2018 when she was trying to remove an aircraft seat cushion by pulling this as it was stuck, and was immediately aware of pain in her right middle finger. Ms Badros informs me that she was able to finish her shift and simply went home. She reported her injury the next day and in fact also became aware of pain in her right shoulder the following day, and had difficulty lifting her right arm. Ms Badros eventually came to surgery on her right shoulder as will be described, and developed symptoms in her left shoulder region within a couple of weeks of having her right shoulder operated on.
As will be noted below Ms Badros has ongoing symptoms in both shoulder regions but is very much better following her surgery, and the problems with her right middle finger have settled down, but she is aware of an occasional feeling of swelling on the dorsum of her right hand between her ring and middle fingers.
As far as treatment is concerned, I note that Ms Badros had an MRI carried out of her right shoulder showing a rotator cuff tear and she came to her first operation on 10 August 2018, being an arthroscopic rotator cuff repair as well as subacromial decompression of her right shoulder.
As mentioned she developed left shoulder symptoms soon after the right should was operated on, and an MRI once again showed partial tearing of her rotator cuff and
Ms Badros came to her second operation on 17 May 2019 being a left shoulder rotator cuff repair and biceps tenotomy.
Post-operatively she developed some adhesive capsulitis as a result of which she had a manipulation of her shoulder under anaesthetic carried out on 19 August 2019, with an injection and hydro-dilatation.
In addition to the surgical treatment she has had extensive physiotherapy, taken tablets and had injections in both shoulder regions.”
Under “Details of any previous or subsequent accidents, injuries or condition” the MA wrote:
“Ms Badros had no problems in either shoulder region prior to 6 June 2018 and has not had any further injuries since then”.
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“As noted Ms Badros developed discomfort in her right middle finger at the time of her injury on 6 June 2018, but these symptoms have long since settled down and she has a full range of painless movement.
She developed discomfort in her right shoulder the following day with a feeling of weakness and difficulty lifting her arm, and has had ongoing problems with her right shoulder since then, and also developed subsequent problems with her left shoulder after the operation on her right shoulder, which in my opinion would be regarded as a consequential injury noting that she was only able to use her left arm following the operation on the right side.
Ms Badros obviously has rotator cuff tears of both shoulders which are of longstanding, and were made symptomatic following the injury on 6 June 2018. As noted Ms Badros has had a very satisfactory response to surgery on both shoulder regions and despite her limitations is remarkably uncomplaining and back doing her normal duties but simply avoiding heavy lifting or activities above shoulder level.”
In answer to the question at 8 e., namely, “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA wrote “No”.
Under “Reasons for Assessment” the MA wrote:
“As noted Ms Badros has a 6% impairment of her right upper extremity and a 12%
impairment of her left upper extremity due to the restricted range of shoulder movements on each side(1) (see 10b). This equates with 4% WPI on the right side and 7% WPI on the left side. If this was regarded as a deemed date, these figures could be combined and would equate with 11% WPI.
As noted there is no residual impairment in relation to her right middle finger.
Please note however that in the referral for the date of injury, I have been given a specific date of 6 June 2018. In my opinion noting that Ms Badros was asymptomatic with regard to her shoulders prior to this incident, the incident on 6 June 2018 simply made what was until then an asymptomatic condition of her right shoulder become symptomatic. Similarly following her right shoulder operation the longstanding problem with her left shoulder became symptomatic as she was favouring the right side.
As noted Ms Badros had been working for Qantas for some 20 years as an aircraft worker and cleaner, and the work could be heavy on occasions. In my opinion then the nature and conditions of her employment would be regarded as a substantial contributing factor to the development of her shoulder problems. However, as I have been given a specific date of injury, namely 6 June 2018 and noting that her shoulder symptoms only came on the next day, in my opinion that incident simply made what was until then an asymptomatic condition become symptomatic, and would not be responsible for her impairment at the present time.
This is reflected in Table 2.”
Under 10c. the MA wrote:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I note the reports of Dr G Burrow, orthopaedic surgeon of 20 February 2019 noting the history and also noting that the injury had simply aggravated pre-existing asymptomatic rotator cuff problems in the right shoulder which had not reached maximal medical improvement. He also noted the left shoulder became symptomatic because of overuse as a result of favouring the right side, and Dr Burrow has suggested that both shoulders developed rotator cuff disease due to the nature and conditions of her employment which could be heavy and repetitive at times. As noted I am in agreement with this assessment. Dr Burrow does not suggest figures of impairment.
There are reports of Dr L Hughes, orthopaedic surgeon of 18 January 2019, suggesting the spontaneous onset of pain in both shoulders and suggesting that in his opinion degenerative rotator cuff tears are present on both sides which he feels are not work-related. As noted I have disagreed with this opinion.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Discussion

Mrs Badros submitted, firstly, that all that was before the MA was a medical dispute as to the quantum of WPI for the referred injury and the MA’s jurisdiction did not extend to making liability findings on the evidence such as that a nature and conditions injury had ensued. Secondly, Mrs Badros argued that the MA made a demonstrable error by failing to assess the injury before him. Thirdly, Mrs Badros argued that the MA failed to apply the correct criteria to the injury.

The Appeal Panel noted that the parties agreed that the relevant injury to be assessed was a frank injury, as set out in the consent orders issued on 12 July 2021.
The MA, after examining Mrs Badros, found that she had rotator cuff tears in both shoulders “which are of longstanding [sic], and were made symptomatic following the injury on 6 June 2018”. He assessed 4% WPI in the right shoulder and 7% WPI in the left shoulder. The MA then expressed the opinion that:
“… the nature and conditions of her employment would be regarded as a substantial contributing factor to the development of her shoulder problems. However, as I have been given a specific date of injury, namely 6 June 2018 and noting that her shoulder symptoms only came on the next day, in my opinion that incident simply made what was until then an asymptomatic condition become symptomatic, and would not be responsible for her impairment at the present time.”
The MA made an assessment of 0% WPI in respect of the referred injury. However, the MA also assessed 11% WPI of the shoulders following his examination. The Appeal Panel inferred that he found that all this impairment in the shoulders related to a prior “nature and conditions” injury. The respondent had disputed that Mrs Badros had suffered a disease injury, or an aggravation, acceleration, exacerbation or deterioration of a disease, to her right middle finger, right shoulder or left shoulder. Such an injury was not referred to the MA for assessment. The parties had agreed in the consent orders of 12 July 2021 that any allegation of a disease injury, or an aggravation thereof, be withdrawn and that the matter be referred to a MA to assess the permanent impairment of both upper extremities as a result of the 6 June 2018 injury.
The Appeal Panel agreed with Mrs Badros that the MA clearly did not have jurisdiction to find that she had sustained a condition or injury arising from the “nature and conditions” of her employment with the respondent and the MA erred in making that finding.
The MA based these findings on an analysis that accepted an alternate mechanism of injury that was not pleaded but might possibly be compensable. However, the parties had agreed that any allegation of a disease injury, or an aggravation of a disease, be withdrawn before the matter was referred to a MA to assess the permanent impairment of both upper extremities as a result of the 6 June 2018 injury. The Appeal Panel considered that it was unfair for the MA to treat all of the impairment assessed as resulting from an alternative cause without putting this issue to the parties. This resulted in a lack of procedural fairness as neither party considered the issue and arguments or had a chance to address them.
Johnson J in Vitaz v Westform (NSW) Pty Limited and Ors [20010] NSWSC 667 considered whether the requirement for procedural fairness must be observed by an approved medical specialist conducting an assessment of permanent impairment under the 1998 Act. Johnson J was satisfied that an approved medical specialist performing an assessment of permanent impairment is, at least as a starting point, under some obligation of procedural fairness.
The MA’s finding that Mrs Badros had sustained a “nature and conditions” injury during her period of employment with the respondent became the basis for an assessment of 0% WPI for the referred and pleaded injury on 6 June 2018. This was an unsound basis for concluding that there was no impairment resulting from the incident on 6 June 2018 particularly in the circumstance where the MA accepted that Mrs Badros had been asymptomatic until that date and concluded that the incident made what was until then an asymptomatic condition become symptomatic.
The MA had taken into account an improper consideration in finding that Mrs Badros had a condition that was not referred to him for assessment.
The Guidelines at Pt 2 under “Principles of Assessment” at Guideline 1.6 provide:
“The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
• whether the condition has reached Maximum Medical Improvement (MMI)
• whether the claimant’s compensable injury/condition has resulted in an impairment
• whether the resultant impairment is permanent
• the degree of permanent impairment that results from the injury
• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.
b. Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.
c. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. ...
d. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought.
... “
The Appeal Panel has concluded that the MA erred by failing to assess the level of permanent impairment caused by the injury on 6 June 2018 because he apparently considered that permanent impairment resulting from injury should instead be measured by reference to causal connection with a differently characterised injury, namely, progressive disease injury caused over a long period by the general nature and conditions of her employment. In effect, the MA apparently declined to weigh the evidence as to the consequential permanent impairment resulting from the specific injury, which was the subject of the referral to him, as he saw the only appropriate regime for characterising the relevant injury as being the deemed injury provisions applicable to a claimed disease injury related to the nature and conditions of the employment. By taking this path, the MA appears to have treated permanent impairment due to repetitive nature and conditions of employment as being an obligatory regime which excluded the alternative approach of treating the relevant injury as occurring due to a single traumatic work event.
The particular subject claim by Mrs Badros in the present case was one where, through her legal representatives, she chose and formulated the description and date of the alleged injury. This description and date of the alleged injury was a matter for Mrs Badros, and not the MA, to decide upon.
Where a work injury on a specific date occurs against a background of pre-existing degeneration or vulnerability to injury, questions may arise as to whether the case for workers compensation should be framed as a “nature and conditions of employment” for which a deemed date of injury analysis may be available to be relied upon. Alternatively, the injury happening on a particular date can simply be pleaded and relied upon as a single compensable event. However, where the injured body part over a long period was asymptomatic before injury occurred, the particular date of injury alleged is commonly relied on and pleaded, even though it might possibly be argued that the subject injury involved an aggravation, acceleration, deterioration or exacerbation of a pre-existing condition.
In the present case, regardless of there being a possible underlying chronic condition, it was for the injured worker, through her legal representatives, to choose the date and details of her compensation claim for permanent impairment. The dispute between the parties founded on that particular chosen formulation of date and details of claimed injury was referred to the MA, who was required to consider and report on the basis of such claimed injury, not on the basis of an alternative hypothesised assumption of the injury being treated instead as a disease of gradual onset.
The Appeal Panel has also concluded that the MA’s reasoning that the relevant injury was that which theoretically could have been alleged, but for which no claim by Mrs Badros had been expressed, involved demonstrable error.
The MA’s conclusion that the permanent impairment resulting from the June 2016 injury was nil also involved demonstrable error for three reasons: firstly, because such finding was tainted by the above stated error as to how the date and legal description of injury should be regarded; secondly, because careful analysis of the detailed medical evidence as to how permanent impairment of both shoulders evolved clearly establishes that the permanent impairments as assessed by the MA were both caused by the injury on 6 June 2018; and thirdly, because the MA failed to properly consider the medical evidence concerning, and give sufficient reasons regarding causation of the claimed consequential injury to the left shoulder and permanent impairment thereof.
This second error emerges from a close examination of the detailed medical evidence documenting chronologically the evolution of the levels of permanent impairments found by the MA. This close examination appears below.
Mrs Badros commenced working for the respondent as a full time aircraft cleaner in 2001. Her job involved cleaning the aircraft. This included the tray tables, seat belts, armrests, headphones, pillows, overhead lockers and vacuuming.
The nature and conditions of her employment involved repetitive pushing, pulling, lifting and overhead movements.
On 6 June 2018, at work, according to the history she gave Dr Burrow, orthopaedical surgeon, she was performing the last task of her shift, where she was attempting to move an aircraft seat cushion which was velcroed in place. It was stuck. She grabbed it with both hands and had to wrench it away. In doing so she felt immediate pain in the volar aspect of her right middle finger. She did not think much of it, thinking she had sprained her finger. She had finished her shift anyway and went home.
On 7 June 2018, she noticed pain in her right shoulder associated with restriction in movement, prompting her to notify her supervisor. She consulted Dr Gerald Yuen at Sydney Airport Medical Centre, who placed her on suitable duties at her pre-injury hours.
Dr Yuen referred Mrs Badros for an MRI scan of her right shoulder.
The MRI scan report dated 26 June 2018 by Dr Greg Markson revealed a near complete disruption of the supraspinatus tendon as well as a moderate sized full thickness tear of the infraspinatus.
Dr Yuen referred Mrs Badros to Dr Nabavi, orthopedic surgeon specialising in knee, hip and shoulder surgery, who on 23 July 2018 reported she had pain over the anterior and lateral aspect which was present all the time and which was felt particularly at night and with shoulder elevation. Dr Nabavi noted she has been taking Voltarin for pain relief and that she had noticed some weakness, stiffness and crepitus. Dr Nabavi on clinical examination noted various movement restrictions and that her impingement signs were positive. He also noted pain on loading of the supraspinatus tendon with grade 4 weakness and pain on biceps provocation tests. Dr Nabavi also noted that the MRI scan demonstrated full thickness tear of the supraspinatus tendon. Dr Nabavi recommended an arthroscopic examination of her right shoulder, a supraspinatus repair, a subacromial decompression and a possible biceps tenodesis, to be done on his next available list.
Between the date of injury on 6 June 2018 and the date of surgery on 10 August 2018, she continued to perform her duties cleaning the aircraft with the use of the left upper limb. This meant that she performed repetitive duties with the left upper limb as well as her activities of daily living.
On 10 August 2018 Dr Nabavi performed a right shoulder supraspinatus repair and biceps tenodesis.
Subsequently her right arm was immobilized in a sling for six weeks before she commenced physiotherapy treatment in order to gradually regain range of motion and strength. During this time, she was reliant on the use of her uninjured left arm for most of her activities and was using her left arm for all tasks.
On 31 August 2018 Mrs Badros saw her GP, Dr Sayeed Khan. His clinical notes record that she complained of bilateral shoulder pain, with right hand pain. He found there was bilateral tenderness of the shoulders and restricted movement. Dr Khan arranged an ultrasound of the left shoulder.
On 31 August 2018 the ultrasound of the left shoulder was performed and reported upon by Dr Chee Chung Hiew. The ultrasound report concluded that there was complete full thickness tear of the supraspinatus tendon of the left shoulder/upper arm. The ultrasound report recorded that impingement could not be assessed due to limited shoulder abduction. The findings were of posterior glenohumeral joint effusion, and limited shoulder abduction to 60 degrees.
On 19 September 2018 Dr Khan reported to Dr Nabavi that Mrs Badros had bilateral pain, tenderness and restriction of movement, and was to have an MRI of the left shoulder.
On 24 September 2018 Dr Nabavi reported to Dr Khan noting that Mrs Badros has been out of a sling for a few days. This report noted that in the right shoulder she was to continue range of motion exercises and stretches and could progress to a strengthening program in four weeks’ time.
On 27 September 2018 an MRI of the left shoulder was performed. The clinical history of left shoulder pain was noted in the MRI report done by Dr Ramesh Cuganesan.
Dr Nabavi also noted that she complained of pain and discomfort in the left shoulder and stated his understanding that she was having an MRI scan done on the left shoulder.
On 5 October 2018 Dr Nabavi saw her regarding the left shoulder. He noted that soon after she had surgery on the right shoulder, she noticed increasing pain over the anterolateral aspect of the left shoulder, this being associated with shoulder height activity and crepitus but no weakness. Dr Nabavi reported he had injected the subacromial space of the left shoulder with steroids and local anaesthetic to see if this would resolve her symptoms.
Dr Nabavi said he had asked her to continue physical therapy performing exercises for both shoulders.
On 29 October 2018 Dr Nabavi reported that her right shoulder, which had surgical repair two months before, was progressing as expected but there was restricted range of movement and she still had pain which required opioid analgesia. He also reported that the left shoulder responded well to the first subacromial injection, but the pain had now recurred, for which he gave a further injection to her left shoulder, hoping that this would improve her symptoms further. Dr Nabavi stated he had asked her to continue with active assisted range of motion exercises and other stretching activity. He stated he expected that she would be unable to work at least until her next appointment in six weeks’ time.
On 10 December 2018 Dr Nabavi reported to Dr Khan that her right shoulder was coming along well, and that she had increasing problems on the left shoulder, there being weakness of the rotator cuff associated with impingement and crepitus. Dr Nabavi stated he had therefore recommended that she have a left sided rotator cuff repair, which he planned to be done in January 2019.
On 16 January 2019 the respondent declined liability for medical expenses related to the proposed left shoulder surgery.
On 17 May 2019 Dr Nabavi proceeded to perform a left rotator cuff repair and biceps tenotomy. Her postoperative course was complicated by adhesive capsulitis.
On 9 August 2019 she underwent manipulation under anaesthetic and hydrodilatation of her left shoulder.
Under cover of a letter from her solicitors dated 9 September 2020 Mrs Badros made her claim for permanent impairment compensation. On 2 February 2021 Qantas gave its section 78 Notice in response to the claim. The section 78 notice stated that the alleged date of injury was 6 June 2018 and that the nature of injury claimed was “Right upper extremity (shoulder and middle finger) and alleged consequential condition to the left upper extremity (shoulder)”.
On 12 July 2021 consent orders were made, recording that any allegation of a disease injury, or an aggravation thereof, was withdrawn and that the matter was to be referred to a MA to assess the permanent impairment of both upper extremities as a result of the 6 June 1918 injury.
Thereafter Mr Jason Dray, Team Leader Dispute Services, Workers Compensation, made a referral to an MA, namely Dr Pillemer. This referral included the body parts referred to above with a date of injury being 6 June 2018. Consistent with what had occurred in relation to the consent orders which precipitated this referral, there was no reference to a disease process nor was there any reference to a deemed date of injury which would generally apply to disease cases by reason of the deeming provisions contained in sections 15 and 16 of the 1987 Act.
For the purposes of the assessment by Dr Pillemer, both parties relied upon specialist medical evidence. Mrs Badros relied upon the reports of Dr Nabavi, Dr Burrow (orthopedic specialist) and Dr Assem (rehabilitation specialist). The respondent relied upon the reports of Dr Hughes and Associate Professor Miniter (both orthopaedic specialists). Various medical reports and clinical notes of her GP, Dr Khan, were also provided.
It is evident from the above medical reports and clinical notes that the case being relied upon on behalf of Mrs Badros for consideration by the MA could be summarised as:
(a)     on 6 June 2018 Mrs Badros pulled a cushion which was attached to an airline seat with Velcro;
(b)     this resulted in an injury to her right hand and shoulder;
(c)     she felt pain immediately in her right middle finger, and then pain in the right shoulder the next day;
(d)     because of continuing pain and other symptoms and restrictions, and clinical examination findings, Dr Nabavi performed rotator cuff repair surgery on the right shoulder on 10 August 2018;
(e)     as a result of the right shoulder injury and the surgery for same, she overused her left shoulder, this being especially so during the recovery time from surgery when she had her right arm in a sling for six weeks and needed to use her left upper extremity for all work and other tasks which would otherwise be done on the right;
(f)     on 31 August 2018 an ultrasound of the left shoulder detected a full thickness tear of the supraspinatus tendon of the left shoulder/upper arm;
(g)     on and from 31 August 2018 Dr Khan recorded her complaints of bilateral shoulder pain and bilateral tenderness and restriction of movement;
(h)     from September 2018 onwards Dr Khan and Dr Nabavi both reported on her continuing left shoulder problems and clinical signs, and ongoing treatment of the left shoulder;
(i)     on 24 September 2018 an MRI was done on the left shoulder, and
(j)     on 17 May 2019 Dr Nabavi performed a rotator cuff repair and biceps tenotomy on her left shoulder.
The MA concluded that Mrs Badros has a 6% impairment of her right upper extremity and 12% impairment of her left upper extremity due to the restricted range of shoulder movements on each side. The MA found that this equated with 4% WPI on the right side and 7% WPI on the left side. He then added “If this was regarded as a deemed date”, these figures could be combined and would equate with 11% WPI.
The Appeal Panel accepts that the 11% WPI assessment was correctly found. Where the MA states the qualification “If this was regarded as a deemed date”, the MA in effect was asserting that the combined figure of 11% WPI depends on there being a single injury date, allowing for the aggregation of the impairments for both upper limbs. The MA thus supported an outcome of 11% WPI due to compensable work injury if the relevant injury was treated as a disease of gradual onset from the general nature and conditions of employment. But having noted there was no claim made for such an injury involving gradual disease onset with a deemed date of injury, but instead the only alleged injury was a single traumatic injury occurring on 6 June 2018 to the right shoulder, the MA’s conclusion was the 11% WPI was only compensable if claimed to be caused by a gradually acquired disease due to the nature and conditions of employment, but not if only a single injury on 6 June 2018 was claimed to be the only relevant injury.

The MA in his “Reasons for Assessment” concluded that Mrs Badros was asymptomatic with regard to her shoulders before 6 June 2018 and that such incident “simply” made what was until then an asymptomatic condition of her right shoulder become symptomatic.
The MA in the “Summary” found that on the next day after 6 June 2018 she had weakness and difficulty lifting her right arm, and had “ongoing problems” with her right shoulder, and has also developed subsequent problems with her left shoulder after the operation on her right shoulder on 18 August 2018, “which in my opinion would be regarded as a consequential injury noting that she was only able to use her left arm following the operation on the right side”.
Also in his “Reasons for Assessment”, the MA added to his conclusions regarding causation of the left shoulder permanent impairment by stating that following her right shoulder operation the long standing problem with her left shoulder (which previously was asymptomatic) “became symptomatic as she was favouring the right side”.
This conclusion by the MA as to how the left shoulder permanent impairment was caused was further reflected when the MA agreed with the assessment of Dr Burrow, including where Dr Burrow noted that the left shoulder became symptomatic because of overuse as a result of favouring the right side.
The MA also stated his agreement with Dr Burrow’s assessment that the injury on 6 June 2018 had aggravated pre-existing asymptomatic rotator cuff problems in the right shoulder which as at 20 February 2019 (when Dr Burrow reported on his medical assessment of both shoulders) “had reached maximal medical improvement”. The Appeal Panel notes that it follows from this reasoning that if the pain and disability which commenced on 7 June 2018 as the result of the injury on 6 June 2018 was still persisting as at 20 February 2019, it must also have been persisting when the right shoulder had to be operated upon. Therefore, the consequences of that operation, including surgical changes to the right shoulder, the need to favour the then overused left upper limb and the consequent damage to the left upper limb must be found to have been all caused by the subject injury on 6 June 2018.
The Appeal Panel, in reliance on the above reasoning stated by the MA and the medical reports and detailed clinical information summarised above, has concluded:
(a)     the injury to the right shoulder on 6 June 2018 caused the right shoulder to become symptomatic, including pain, weakness and difficulty lifting her right arm, with ongoing problems with the right shoulder “since then” ie up until and beyond the date of the MA’s assessment on 17 November 2021;
(b)     on 10 August 2018, as the result of these ongoing problems in the right shoulder Dr Nabavi performed surgery on the right shoulder, but permanent impairment and problems have persisted in the right shoulder;
(c)     the permanent impairment of the right shoulder, as found by the MA was caused by the injury on 6 June 2018;
(d)     as the result of persisting restrictions on use of her right shoulder and the surgical and other treatment including wearing a sling for the right upper limb for six weeks, Mrs Badros overused her left shoulder, causing the left shoulder, which was previously asymptomatic, to become symptomatic, creating the need for surgery and causing permanent impairment of the left shoulder, and
(e)     the upper extremity impairment of the left upper limb as found by the MA at 12% was a consequential condition caused by the injury to the right shoulder on 6 June 2018.
The Appeal Panel accepted the findings made on examination by the MA. Having examined the detailed medical evidence in this matter the Appeal Panel considered that the injury on 6 June 2018 had resulted in persisting pain and loss of function in Mrs Badros’ right shoulder and resulted in surgery being performed on the right shoulder on 10 August 2018, leaving Mrs Badros with permanent impairment in the right shoulder. The Appeal Panel also considered that the injury on 6 June 2018 had resulted in persisting pain and loss of function in her left shoulder and resulted in surgery being performed in the left shoulder on 17 May 2019, leaving Mrs Badros with permanent impairment in the left shoulder. The Appeal Panel therefore assessed 7% WPI of the left upper extremity and 4% WPI in the right upper extremity which produced a combined total of 11% WPI.
The respondent submitted that if 11% WPI was assessed to the frank injury as requested by Mrs Badros, a reconsideration of the deductible proportion under s 323 of the 1998 Act must be made in accordance with the above requirements.
The Appeal Panel proceeded to consider the question of whether a deduction should be made pursuant to s 323 of the 1998 Act.
Section 323 of the 1998 Act 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 (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 approved medical specialist in connection with the medical assessment of the matter.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”

84. The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole). Schmidt J said:

“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.

30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case”.

The Appeal Panel accepted that Mrs Badros had an injury to the right shoulder as a result of the incident on 6 June 2018 and that what was a previously asymptomatic bilateral shoulder condition became symptomatic.
Dr Assem made an assessment of 7% WPI of the right upper extremity and 8% WPI of the left upper extremity. Dr Assem made no deduction for a pre-existing condition.
Associate Professor Miniter made an assessment of 5% WPI of the left shoulder but did not consider that impairment related specifically to the workplace. He made a 100% deduction. He made no assessment of the right shoulder as he found a full range of movement.
The next question to be addressed is whether previously asymptomatic bilateral shoulder condition contributed to the impairment assessed by the MA and, if it did, what that contribution was.
The Appeal Panel noted that Mrs Badros had been performing heavy physical work cleaning aircraft until the incident on 6 June 2018. There was no evidence in the medical reports or clinical notes (which dated back to 2006) of any complaints about her shoulders before 6 June 2018. There was no evidence of any loss of function in either shoulder before the incident on 6 June 2018. There was no evidence of any investigations, treatment of any shoulder condition before 6 June 2018.
The Appeal Panel accepted that the MRI scan of the right shoulder of 26 June 2018 showed disruption of the supraspinatus tendon which was near complete as well as a moderately sized full thickness tear of the infraspinatus. The MRI scan of 27 September 2018 of the left shoulder show a partial thickness tear. However, these tears had not affected Mrs Badros’ function before the incident on 6 June 2018 and the Appeal Panel considered that she may have remained asymptomatic indefinitely if the incident on 6 June 2018 had not occurred.
As Schmidt J pointed out in Cole, it is necessary to find that the pre-existing condition actually contributed to the impairment before s 323 is engaged. Such a conclusion has to be supported by evidence to that effect.
On balance, the Appeal Panel was not satisfied that the pre-existing injuries or conditions in the right shoulder and left shoulder contributed to the current level of impairment assessed by the MA.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 November 2021 should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

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 Dr Roger Pillemer and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
Left upper extremity	6/6/18	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	7%	nil	7%
Right upper extremity	6/6/18	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	4%	nil	4%
Total % WPI (the Combined Table values of all sub-totals)					11%

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002

Carolyn Rimmer
Member

James Bodel

Medical Assessor

Gregory McGroder

Medical Assessor

21 April 2022