Brambles Limited v Stanford

DETERMINATION OF APPEAL PANEL
CITATION:	Brambles Limited v Stanford [2023] NSWPICMP 350
APPELLANT:	Brambles Australia Pty Ltd
RESPONDENT:	Ryan Stanford
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	24 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Worker sustained bilateral shoulder injuries in the course of his employment; Medical Assessor (MA) assessed 9% whole person impairment (WPI) of each shoulder and made no deduction for pre-existing injury or condition; appellant employer submitted that evidence before the MA warranted a deduction from the final 17% WPI; MA found no relevant pre-existing condition; Panel satisfied pre-existing condition in right shoulder contributing to the level of impairment assessed and applied a one tenth deduction; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 April 2023 Brambles Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil A Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
13 March 2023.
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, 4^th ed
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

The respondent (Mr Stanford) sustained an injury to his left and right shoulders in the course of his employment deemed to have occurred on 6 January 2020.
The matter was referred to the Medical Assessor, Dr Neil A Berry, on 2 February 2023 for assessment of whole person impairment (WPI) of the left upper extremity and right upper extremity with a deemed date of injury on 6 January 2020.
The Medical Assessor examined Mr Stanford on 7 March 2023 and assessed 9% WPI of the left upper extremity (shoulder) and 9% WPI of the right upper extremity (shoulder). The Medical Assessor made no deduction pursuant to s 323 of the 1998 Act. The combined total was 17% WPI as a result of the injury deemed to have occurred on 6 January 2020.

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.
The appellant did not request that Mr Stanford be re-examined by a Medical Assessor who is a member of the Appeal Panel but submitted “that a re-examination may be required by the Appeal Panel if they considered it necessary”.
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 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 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.
The appellant’s submissions included the following:
(a)    The appellant disputed the findings of the Medical Assessor in respect to the assessment of 17% WPI in relation to the right upper extremity and left upper extremity. The evidence before the Medical Assessor warranted a deduction from the final 17% WPI assessed on the following basis:
(i)evidence before the Medical Assessor demonstrated presence of a pre-existing degenerative condition, and
(ii)the Medical Assessor failed to have regard to critical evidence with respect to injury, pathology and pre-existing condition.
(b)    Incorrect Criteria - the Medical Assessor took a history of injury, referring to the Mr Stanford being referred for an ultrasound and physiotherapy but not being provided with any specific treatment. This history was clearly incorrect with reference to the statements provided by the applicant in the Application to Resolve a Dispute (ARD), as well as the treating materials contained in the ARD, Reply and Application to Admit Late Documents (AALD), which outlined the extensive treatment provided to the applicant. The applicant was examined by
Dr Dave and Dr Kuo, both treating surgeons. Dr Dave undertook manipulation under anaesthetic as well as cortisone injections. Dr Kuo examined Mr Stanford and referred him to Dr Ho, who also referred him for extensive pain management treatment. The treating evidence supported extensive conservative treatment to date. The Medical Assessor made no reference to having reviewed these materials, referring only to the opinions provided by the respective Independent Medical Examiners (IME), Dr Porteous and Associate Professor Miniter.
(c)    The above demonstrated that the Medical Assessor formed his view on the basis of incorrect criteria as not all the evidence in the matter was considered.
(d)    Pre-existing degenerative changes – the Medical Assessor failed to take into account prior injuries, prior symptoms, and the full treating history in reaching his diagnosis, assessing impairment and considering pre-existing degenerative changes for the purpose of s 323 of the 1998 Act.
(e)    In the Medical Assessment Certificate (MAC), the Medical Assessor indicated that there was no proportion of WPI due to a previous injury, pre-existing condition or abnormality. Notwithstanding this, the Medical Assessor obtained the following history from Mr Stanford: “The claimant suffered from bursitis in 2014 and 2015, it localised to the right shoulder and settled after having cortisone injections”.
(f)    In the ARD several statements of Mr Stanford were provided which made reference to an injury to the right shoulder in 2012, which resulted in five weeks off work, and having a cortisone injection. A further flare up of pain and bursitis occurred again in the right shoulder in September 2015 after carrying a 200kg fridge and again this was treated with time off work and a cortisone injection. Reference was made to a motor vehicle accident in December 2017 which caused injury to Mr Stanford’s back and neck. He was off work for six months and underwent extensive physiotherapy before returning to work gradually.
(g)    The consultation notes of Dr Chakma and Dr Devsam, treating general practitioners (GP) in 2013 and 2015 made various reports in relation to the respondent’s right shoulder.
(h)    On 7 June 2021, Dr Dave reported the following:
“Ryan has seen me today, accompanied by his partner. He had a manipulation of both shoulders and injection done on 18 May 2021. At the time of the manipulation, he had full free movement of the shoulder joint without any restrictions in regard to a frozen shoulder. There was no suggestion of any restriction or instability of either shoulder…The exact cause of Ryan’s bilateral shoulder pain is not clear. He has had MRI scans and multiple x-rays and ultrasounds of his shoulder, which have not shown any pathology.”
(i)    On 11 August 2021, Dr Kuo reported the following: “Ryan has bilateral shoulder pain which may be related to some element of impingement but the degree of restricted movement and severity of his symptoms don’t quite correlate”.
(j)    The Medical Assessor was required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and set out the facts upon which the assessment is based. That obligation required a Medical Assessor to provide the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning in accordance with Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480.
(k)    In Cole v Wenaline Pty Ltd [2010] NSWSC78, the court determined that the extent to which a worker’s post work injury impairment is due to the earlier injury or pre-existing condition or abnormality must be determined in consideration of a s 323 deduction, and this process must be completed by reference to the evidence, and not by reference to assumption or hypothesis.
(l)    In Ryder v Sundance Bakehouse [2015] NSWSC526 (Sundance), the court considered the following to be the requirements in considering a deduction under s 323(1) of the Act: (i) The level of the worker’s permanent impairment must first be determined at the time of the assessment; (ii) A prior injury or pre-existing condition must be identified; (iii) It must be determined whether a proportion of the worker’s post-injury impairment is due to the prior injury or pre-existing condition; (iv) The extent to which the worker’s post-injury impairment is due to the prior injury or pre-existing condition must be determined.
(m)     In Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at 86, Garling J noted that if a deduction required to be made under s 323(1) would be too difficult or costly to determine, the extent of the deduction to be made, because of the absence of medical evidence or some other reason, then in that circumstances, the deduction to be made under s 323(1) can be assumed, in accordance with s 323(2) of the 1998 Act to be 10%.
(n)    The Medical Assessor has not applied the specific test required by s 323 of the 1998 act, with reference to the case of Sundance.
(o)    While the Medical Assessor identified that Mr Stanford had “suffered from bursitis in 2014 and 2015”, no consideration was given as to the abundance of treating material available, including earlier imaging reports which clearly identify a pre-existing pathology in Mr Stanford’s right shoulder.
(p)    There was no evidence that the Medical Assessor considered the extent of pre-existing pathology evident in the material included in the referral. Nor did the Medical Assessor address the findings of the two treating orthopaedic specialists as to anomalies identified in presentation with respect to diagnosis. The Medical Assessor was required to have regard to all relevant material. It was evident that the Medical Assessor either failed to consider all the relevant material or failed to provide a summary of materials considered and how they influenced his opinion.
(q)    In Tattersall v Registrar of the Workers Compensation Commission of NSW & Anor [2017]NSWSC 453 at [14] Adams J noted:
“Given the significance of Medical Assessment Certificate by the Appointed Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and to dispose of applications by non-participatory decision making, a failure to consider relevant and significant material provided by one of the parties must be regarded as a significant error.”
(r)    The Medical Assessor has not considered the significant and abundant treating material available in relation to the pre-existing right shoulder pathology and has accordingly not applied the correct test as to the deduction under s 323 of the 1998 act, pursuant to Sundance. This constituted both incorrect criteria and a demonstratable error.
(s)    The deduction of 100% as applied by Professor Miniter was appropriate, but if not accepted a significant deduction should be made from the assessment of WPI to account for the non-work-related degenerative changes in the shoulders. In all circumstances, the Medical Assessor should have made a deduction as provided in s 323 of the 1998 Act.
(t)    The MAC dated 13 March 2023 should be revoked and the Appeal Panel determine that a deduction pursuant to s 323 of the 1998 Act be made to account for the non-work related degenerative changes in the shoulders and determines amended WPI in accordance with the submissions above.
Mr Stanford’s submissions included the following:
(a)    The Medical Assessor took a history of injury, with referral for an ultrasound and physiotherapy, but not being provided with any specific treatment, and this history was clearly incorrect. However, the Medical Assessor’s brief summary did not demonstrate that the Medical Assessor formed his view on the basis of incorrect criteria.
(b)    The Medical Assessor determined that it is reasonable he apply the range of movement model for both shoulders, and he attached his work sheet.
Mr Stanford has not undergone surgery to either his left or right upper extremities and therefore, the Medical Assessor’s assessment (based on the range of movement model) was not made on the basis of incorrect criteria.
(c)    Pre-existing degenerative changes – the Medical Assessor indicated that there was no proportion of WPI due to a previous injury, pre-existing condition or abnormality, despite taking the following history from Mr Stanford: “The claimant suffered from bursitis in 2014 and 2015, it localised to the right shoulder and settled after having cortisone injections”.
(d)    The Medical Assessor applied a “Nil” deduction pursuant to s 323 of the 1998 Act. The Medical Assessor has not erred in his application of s 323 on the basis that a deduction is not warranted simply due to the presence of a pre-existing injury, but the actual proportion of the permanent impairment due to the pre-existing injury.
(e)    The appellant referred to a number of specific entries in Mr Stanford’s clinical records relating to pre-existing right shoulder pathology. The dates of these entries ranged from 26 November 2013 to 8 September 2015. The next entry referred to by the appellant related to an MRI report dated 4 February 2020, which was approximately one month after Mr Stanford’s deemed date of injury, being 6 January 2020.
(f)    Mr Stanford addressed his pre-existing right shoulder pathology in his statement dated 23 March 2020. The evidence contained in Mr Stanford’s statement and in the clinical records attached to the AALD dated 16 February 2023, was consistent with the Medical Assessor’s findings. In relation to details of any previous or subsequent accident, injuries or condition, the Medical Assessor found that Mr Stanford suffered from bursitis in 2014 and 2015.
(g)    The Medical Assessor’s findings above were consistent with the evidence before him, which shows that Mr Stanford was asymptomatic prior to the subject injuries. Mr Stanford was employed with the appellant from 1 March 2016. Mr Stanford outlined the requirements of his employment at paragraph 20 of his statement dated 23 March 2020, which he stated involved repairing at least 535 pallets per day. There was no evidence that Mr Stanford was unable to use both his arms with equal dexterity and strength. Furthermore, Mr Stanford continued working in a physically intensive and laborious role for a period of at least four years after the cortisone injection administered in September 2015.
(h)    As identified in Cole v Wenaline Pty Ltd [2010] NSWSC78, the fact that there may have been a previously assessable impairment does not give rise to a deductible proportion unless it can be shown that that impairment contributes to the current impairment. The Medical Assessor determined that it was reasonable he applied the range of movement model for both shoulders, and he attached his work sheet. The fact that Mr Stanford’s right shoulder had previously been damaged did not warrant a deduction if it only operates as a vulnerability or predisposition which affected the injury deemed to have occurred on 6 January 2020. The question was whether the impairment resulting from the subject injuries also resulted from the earlier injuries. There was no evidence to suggest that a restriction of movement existed prior to Mr Stanford’s subject injuries deemed to have occurred on 6 January 2020. Applying a s 323 deduction in these circumstances would have constituted a demonstrable error.
(i)    In response to the appellant’s submission that the Medical Assessor failed to address the treating evidence in relation to the anomalies between the pathology in Mr Stanford’s shoulders and the severity of his symptoms, this did not constitute a demonstrable error. The Medical Assessor clearly stated under ‘consistency of presentation’ that he found no evidence of exaggeration or illness behaviour.
(j)    The appellant submitted that the deduction of 100% as applied by Professor Miniter was appropriate, but if not accepted, it remained appropriate in all circumstances that a significant deduction be made. The Medical Assessor was required to exercise his own clinical judgment and that a difference of opinion was not a ground of appeal. As highlighted in Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101, a demonstrable error would be an error for which there was no information or material to support the finding made, rather than a difference of opinion. In this case, the Medical Assessor found that he had suffered from bursitis in 2014 and 2015, but that it was localised to the right shoulder and it settled after having cortisone injections. The Medical Assessor’s findings were supported by the evidence that was before him.
(k)    The MAC was not made on the basis of incorrect criteria, nor did it contain a demonstrable error. The MAC should be confirmed. If this was not accepted, the only applicable deduction in this matter would be a one-tenth deduction as there was no evidence to suggest that a restriction of movement existed prior to
Mr Stanford’s subject injuries deemed to have occurred on 6 January 2020. The Medical Appeal Panel (MAP) in Allen William Jackson v Mid Coast Refrigerated Transport [2012] NSWWCCMA 5 [38]14 determined that:
“…it would be very difficult to quantify the deduction to be made given the very limited evidence as to the actual consequences of the earlier injury. Section 323 does not permit the assessment to be made on the basis of an assumption or hypothesis that once a particular injury occurred it will always, irrespective of outcome, contribute to the impairment flowing from any subsequent injury. It is not, in our view, possible to quantify an appropriate deduction based on restriction of movement from the x-rays, as arthritis is often well tolerated in the shoulder joint and there may have been little, if any, restriction of movement in the joint even though there was clearly a moderately severe arthritic condition in the right shoulder before the subsequent injury which is the subject of this claim. In all the circumstances, we considered it appropriate to apply the 10% deduction to the assessment of the right upper extremity as the absence of medical evidence makes it difficult to determine the deduction…”

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

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, below and in the body of this decision.
Under “History relating to the injury”, the Medical Assessor wrote:
“Mr Stanford attended the assessment with his wife and he told me that he was employed by Brambles working at CHEP as a pallet repairer for approximately four years commencing on 1 March 2016.
At the warehouse there were 12 tables which were used to repair CHEP pallets. The 11 tables were used to do minor repair and the additional table was used to repair bearers.
Mr Stanford not only did minor repairs but he also did the major bearer repairs as well.
Mr Stanford told me that he had returned to work after being on leave for glandular fever and had gradually returned to repairing pallets and had achieved the objective of repairing 538 pallets on 5 January 2020. He noted some pain in his right shoulder and thought it was just a matter of gaining fitness. On the morning of 6 January 2020, he woke up and had severe pain in both shoulders. The matter was reported and he was placed on light duties.
He saw his general practitioner, Dr Chung, and was referred for an ultrasound and
physiotherapy. By the 31 January 2020, his pain had become so severe, that he could not continue working and he has not worked since.
He has been seen by various doctors but no specific treatment has been given and he
remains off work.”
Under “Findings on physical examination” the Medical Assessor wrote:
“Upper Extremities
Mr Stanford had a restricted range of movement, equally in both shoulders. There was no wasting, swelling or dropping of the shoulders. Please see the attached worksheet for the range of movement.
The elbow, wrist and hand movements on the right and left were normal. Reflexes were intact and sensation was normal and there was no unilateral muscle wasting...”
Under “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor wrote:
“The claimant suffered from bursitis in 2014 and 2015, it localised to the right shoulder and settled after having cortisone injections.
Mr Stanford also had a motor vehicle accident in 2017 where his vehicle was hit from
behind and his vehicle was written off. He injured his neck and back and was off work for six months but then made a full recovery.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the Medical Assessor wrote:
“Upper Extremities
Mr Stanford had a restricted range of movement, equally in both shoulders. There was no wasting, swelling or dropping of the shoulders. Please see the attached worksheet for the range of movement.
The elbow, wrist and hand movements on the right and left were normal. Reflexes were intact and sensation was normal and there was no unilateral muscle wasting.”
Under “Evaluation of permanent impairment”, at 8(e) the Medical Assessor wrote:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No.”
Under “Reasons for assessment” the Medical Assessor wrote:
“I am asked to assess this claimant’s left upper extremity and right upper extremity using the Whole Person Impairment method.
The claimant has a history of developing pain in both shoulders. Clinically, he has
restriction of movement in both shoulders but no evidence of any neurological disturbance in the upper limbs and I would consider that it is reasonable that he assessed in terms of the range of movement model for both shoulders. Please see that attached worksheet.
The claimant has a total of 9% Whole Person Impairment for each upper extremity and
using the Combined Tables on page 604 he has a Total Whole Person Impairment of 17%.”
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“Dr Andrew Porteous in his report dated 8 December 2020 he assessed the claimant as an 8% Whole Person Impairment for the right shoulder and 8% for the left shoulder. Dr Porteous is uncertain as to the cause of his shoulder problems but does take the view that it is work-caused.
A/Prof Paul Miniter in his various reports is unable to relate the claimant’s ongoing
problems to his work. He concludes that there is no work injury and that his pain and
disability is impairment based. However, given that it came on at work I think it is very difficult to discount work as a cause of his ongoing problems.”
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the Medical Assessor wrote:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) ‘Nil’”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
The appellant submitted that the Medical Assessor did not record all the details of the treatment Mr Stanford received for the work injury, merely referring to referral for physiotherapy and an ultrasound and then stating that no specific treatment has been given. The Appeal Panel agree that this was not a complete description of the treatment provided after the injury on 6 January 2020. The Medical Assessor made no reference to the manipulation under anaesthetic by Dr Dave, cortisone injections and pain management treatment. However, the Appeal Panel was not persuaded that these omissions affected the assessment of impairment made on the day of examination by the Medical Assessor.

Deduction for pre-existing condition or injury

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 medical assessor 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.”
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     The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine. Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case. An assumption of the kind here made, namely that surgery to the lumbar spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.”
The Appeal Panel reviewed the evidence in this matter.
In a statement dated 23 March 2020, Mr Stanford said:
“9. In or around 2012, I sustained an injury to my right shoulder whilst working as a mechanic’s apprentice. I had an ultrasound taken to my right shoulder which evidenced subacromial subdeltoid bursitis. As a result, I took around five weeks off from work and received a cortisone injection to my right shoulder joint. The right shoulder pain resolved and the injury did not continue to have significant impact on my daily life or ability to work…
10. In around September 2015, I suffered a flare up of pain and bursitis in my right shoulder due to a workplace injury. The injury occurred while I was carrying a fridge weighing around 200kg up a flight of 15-20 stairs with my colleagues. I had an ultrasound taken to my right shoulder which evidenced bursitis, however, it was notably less severe than it had been in 2012. I took a few days off from work and received an injection to my right shoulder which proved helpful and alleviated my pain completely. I resumed work with no difficulty and the injury had no ongoing impact on my ability to carry out the physical demands of my employment.”
11. ln or around 2016, I sustained an injury to my lower back and mild whiplash following a car accident. I took a short amount of time off work and did not require any treatment. The pain in my lower back and whiplash resolved soon after and I was able to resume work with no ongoing restrictions on my ability to work.
12. ln around December 2017, I sustained an injury to my back and neck in a second car accident. I was stopped at a set of traffic lights when I was rammed by another car. Upon hitting me, the other car reversed and took off immediately after. I was required to take around 6 months off from work and during this time, I underwent extensive physiotherapy. I eventually made a return to work, gradually increasing my working days each week. When I recommenced unrestricted duties, I did not continue to experience any significant pain or restrictions that impacted on my ability to carry out my employment duties or my daily activities.
…
19. On 1 March 2016, I commenced employment with CHEP Australia Limited. I was initially employed as a Pallet Repairer on a casual basis working 40 hours per week. In January 2017, I was employed in the same role on a full-time basis working 40 hours per week...
20. In my role, I was required to:
a. Repair at least 535 pallets each day;
b. Grind down nails and staples;
c. Detach and reattach boards to pallets;
d. Move pallets; and
e. Complete general duties incidental to the role of a pallet repairer”.
In a report dated 17 February 2020 Dr Dara Chung, GP, wrote: “As mentioned above he has no pre-existing condition”. She made a diagnosis of bilateral supraspinatus bursitis and impingement of the shoulders.
Dr Andrew Porteous, occupational physician, in a report dated 3 April 2020 noted that
Mr Stanford said in late 2018 that he had a motor vehicle accident and injured his cervical spine and lumbar spine. Dr Porteous wrote:
“As part of treatment, there was physiotherapy and gym treatment and over six months these healed and resolved. He said they were completely gone at the time of the accident.
He has had previous bursitis in his right shoulder. It occurred, as indicated above, in 2014 when working as a mechanic. He had physiotherapy and injection and it settled over six months.
He said in 2015, he had shoulder bursitis when working at DHL as an offsider. He had an injection given by his General Practitioner after ultrasound. He had no physiotherapy. He said the pain then resolved completely.”
In a report dated 9 December 2020, Dr Porteous made an assessment of 8% WPI of the right shoulder and 8% WPI of the left shoulder.
In a report dated 13 May 2021 Dr Jay Dave, treating orthopaedic surgeon, noted that
Mr Stanford’s work was quite repetitive and he had to deal with up to 540 pallets a day, repairing them, moving and lifting them. Dr Dave wrote:
“He started developing pain in his shoulders from 6 January 2020, with equal pain on both sides. He does not recall any specific injuries. He had some treatment at the beginning with physiotherapy and he also had MRI scans done of both shoulders on 4 February 2020. These were essentially normal studies without any tears of the supraspinatus or infraspinatus muscles and no tearing of the labrum. There might have been some bursitis and tendonitis noted on the ultrasound scans that he has had done recently. He has had two cortisone injections to each shoulder without any improvement. He has had a fair amount of physiotherapy treatment, up to 10 visits.
He presents today with very stiff and painful shoulders in any direction, except internal rotation where he gets to about the mid-thoracic region. He has generalized pain over the top, front and sides of the shoulders. It was difficult to examine his shoulder due to the pain and spasms.”
In a report dated 13 May 2021 Dr Jay Dave, treating orthopaedic surgeon, noted that
Mr Stanford had great difficulty with any activities, particularly with even the slightest movement in abduction, flexion or rotation. Dr Dave wrote:
“It is difficult to understand his symptomatology as he has this problem in both shoulders and yet the MRI scans are essentially normal. He requires an examination under anaesthetic to see the degree of stiffness.”
In an operation report dated 18 May 2021, Dr Dave noted after “Operative Procedure” that there was a full free range of movement, no adhesion, no instabilities.
On 7 June 2021, Dr Dave reported the following:
“Ryan has seen me today, accompanied by his partner. He had a manipulation of both shoulders and injection done on 18 May 2021. At the time of the manipulation, he had full free movement of the shoulder joint without any restrictions in regard to a frozen shoulder. There was no suggestion of any restriction or instability of either shoulder…
At today’s visit he has only restricted range of motion, getting to about 30-40 degrees of abduction, 20-30 degrees of flexion and extension of 10-15 degrees… The exact cause of Ryan’s bilateral shoulder pain is not clear. He has had MRI scans and multiple x-rays and ultrasounds of his shoulder, which have not shown any pathology.”
Dr Dave recommended assessment by a spine specialist and to a pain clinic.
In a report dated 11 August 2021, Dr Warren Kuo, treating orthopaedic surgeon, found on examination a quite profound loss of active and passive forward elevation and abduction due to pain and markedly positive impingement tests. On 11 August 2021, Dr Warren Kuo wrote: “Ryan has bilateral shoulder pain which may be related to some element of impingement but the degree of restricted movement and severity of his symptoms don’t quite correlate”. He recommended that Mr Stanford be referred for pain management.
In a report dated 23 October 2021, Dr Kuo, noted that Mr Stanford had been seen by Dr Tim Ho, who confirmed that Mr Stanford had a pain syndrome.
Associate Professor Tilman Boesel, pain medicine physician, in a report dated 4 April 2022, wrote: “there was a prior history of left shoulder bursitis, which had resolved many years previously. He developed bilateral shoulder pain fairly rapidly after returning to work from a period of illness”. Associate Professor Boesel assessed a combined total of 15 % WPI (10% of the left upper extremity and 6% of the right upper extremity).
Associate Professor, Paul Miniter, orthopaedic surgeon, in a report dated 15 August 2022, stated that he could see no evidence of injury and was unable to associate the matter with the workplace apart from indicating that he had pain beginning on 6 January 2020, escalating and being associated with marked stiffness up until 30 January 2020 when he stopped working.
In a supplementary report dated 15 August 2022 Associate Professor Miniter stated that he did not believe there was any evidence of a work-related injury nor of impairment.
In the report of MRI scans of the shoulders dated 4 February 2020, Dr Greg Markson, radiologist, concluded that the studies were normal. He noted in respect of both shoulders that there was no significant lateral down sloping of the acromion, the acromioclavicular joint had a normal appearance, there was no distension of the subacromial bursal complex, the supraspinatus, infraspinatus, teres minor and subscapularis tendons appeared normal, the long head of the biceps tendon was intact, there is no labral pathology, the articular cartilage was maintained and there were no features or adhesive capsulitis.
In the report of the ultrasound of the shoulders dated 30 June 2020, Dr Philip Segal, radiologist, concluded in relation to the right shoulder that there was bursal thickening overlying the supraspinatus in keeping with bursitis and bursal bunching with abduction limited to 60 degrees in keeping with impingement. In relation to the left shoulder, he concluded that there was bursal thickening overlying the supraspinatus in keeping with bursitis.
The records of Busby First Care Medical Centre, included the following entries:
(a)    in an entry dated 26 November 2013, Dr Bibha Chakma, GP noted: “works as a mechanic… painful rt shoulder when full abduction/ext rotation. Nil direct injury”. Dr Chakma referred Mr Stanford for an ultrasound scan of the right shoulder.
(b)    On 3 December 2013, Dr Chakma noted she had explained ultrasound report of the right shoulder and confirmed diagnosis of a right subacromial subdeltoid bursitis. She wrote: “and he will be unable to do any heavy lifting (not to lift more than 3 kgs) at work for further five more weeks”. She noted that if pain persisted he could be referred for a cortisone injection.
(c)    On 9 December 2013, Dr Joshua Devsam confirmed the diagnosis of subacromial bursa and biceps tendonitis.
(d)    On 17 December 2013, Dr Devsam noted that the right shoulder pain was now chronic bursitis. He wrote: “and ? arthroscopy…does not want joint injection”..
(e)    On 8 January 2014, Dr Devsam wrote: “R shoulder joint injection now very painful needs 1 wks off …”
(f)    The next entry concerning the shoulders was on 8 September 2015, when
Dr Devsam reported “R shoulder bursitis and tendonitis with rotator cuff inflammation”. A cortisone injection was administered.

The appellant submitted that evidence before the Medical Assessor warranted a deduction pursuant to s 323 of the 1998 Act as evidence before the Medical Assessor demonstrated the presence of a pre-existing degenerative condition and the Medical Assessor failed to have regard to critical evidence with respect to injury, pathology and pre-existing condition.
The Medical Assessor found that there was no relevant pre-existing condition although he had noted Mr Stanford suffered from bursitis in the right shoulder in 2014 and 2015 which settled after having cortisone injections.
Although the Medical Assessor did not make a specific diagnosis of bursitis, the weight of the medical evidence in this matter, including the report of Dr Chung of 17 February 2020, the reports of Dr Dave and the ultrasound of the shoulders on 30 June 2020, was evidence that Mr Stanford had bursitis in both shoulders following the injury on 6 January 2020. It was clear that Mr Stanford had previously been treated for bursitis of the right shoulder in 2013 to 2014 and in 2015. There was no history of bursitis in the left shoulder. Bursitis is an inflammatory disease and the Appeal Panel considered that the history as set out in the clinical notes of the treating GPs, was such that the condition was a relevant pre-existing condition even though Mr Stanford had been asymptomatic for nearly five years. The Appeal Panel concluded that the Medical Assessor erred in finding that there was no relevant pre-existing condition.
The Appeal Panel, having found that Mr Stanford had a relevant pre-existing condition in the right shoulder, then considered whether that condition resulted in a level of residual impairment which contributed to the level of impairment which followed the injury on
6 January 2020. The Appeal Panel accepted that Mr Stanford commenced work with the appellant in 2016 and performed heavy physical duties. The Appeal Panel also accepted that Mr Stanford had no problems with his right shoulder after the report of bursitis on
8 September 2015 until January 2020. After considering the medical evidence, the Appeal Panel was satisfied that the pre-existing condition in the right shoulder contributed to the impairment assessed. Although the pre-existing condition was asymptomatic for some years after September 2015, Mr Stanford had been treated for bursitis during 2013, 2014 and 2015. In December 2013, Dr Devsam described Mr Stanford as having chronic bursitis in the right shoulder. The Appeal Panel considered that it was more probable that not, that there had been some damage during these earlier periods of symptomatic bursitis. The Appeal Panel was satisfied that but for the pre-existing bursitis, the degree of impairment resulting from the work injury would not have been as great.
The Appeal Panel considered that in all the circumstances, a one tenth deduction in respect of the assessment for the right shoulder was appropriate under s 323(2) as it was too difficult to determine the precise proportion that was caused by the pre-existing condition given the absence of medical evidence in relation to the right shoulder. On balance, the Appeal Panel did not consider that a one tenth deduction was at odds with the evidence.
The Appeal Panel agreed with the Medical Assessor that there was no pre-existing injury or condition in the left shoulder. It follows that no deduction should be made in respect of the left shoulder pursuant to s 323 of the 1998 Act.
Therefore, the Appeal Panel assessed Mr Stanford as having 9% WPI of the right upper extremity (shoulder) and deducted one tenth for the pre-existing condition, which resulted in an assessment of 8.1% which was rounded down to 8% WPI. Therefore, 8% for the right shoulder was combined with 9% for the left shoulder which resulted in a total of 16% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
13 March 2023 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

Matter number:	W7673/22
Applicant:	Ryan Stanford
Respondent:	Brambles Australia 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 Tim Anderson 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 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)
1.Left upper extremity (shoulder)	6/1/2020 (deemed)	Chapter 16	9	0	9
2.Right upper extremity (shoulder)	6/1/2020 (deemed)	Chapter 16	9	1/10th	8 (8.1 rounded down to 8.0%)
Total % WPI (the Combined Table values of all sub-totals)					16

[2023] NSWPICMP 350

24 July 2023