Broderick v Swan Hardware & Staff Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Broderick v Swan Hardware & Staff Pty Ltd [2023] NSWPICMP 677
APPELLANT:	Michael Broderick
RESPONDENT:	Swan Hardware & Staff Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	15 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in the deduction he made pursuant to section 323; the Panel agreed; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 September 2023 Michael Broderick (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor,(MA) who issued a Medical Assessment Certificate (MAC) on 29 August 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in the deduction he made pursuant to s 323 of the 1998 Act in respect of the right shoulder injury, and failed to provide adequate reasons for that deduction. The appellant does not challenge the assessments in respect of the
In reply, Swan Hardware & Staff Pty Ltd (the respondent) submits that the MA conducted a thorough examination of the appellant and properly considered what can only be surmised as sufficient evidence to provide an appropriate deduction under s 323(1), and no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the right lower extremity (right ankle and right knee), the left lower extremity (left knee), the right upper extremity (right shoulder) and scarring (TEMSKI) resulting from an injury on 8 August 2016.
The MA obtained the following history:
“Mr Broderick sustained an injury at work 8 August 2016 to his right ankle. Mr Broderick stated he slipped down five stairs and twisted his right ankle and sustained a fracture. Mr Broderick recalled injuring his right shoulder and right knee in the fall. He was taken by ambulance to hospital. He remained in hospital and surgery was performed 15 August 2016 for a right ankle open reduction internal fixation. He was off his foot for a while and then started physiotherapy. Mr Broderick developed an infection in the right ankle around six months later and then had the hardware removed. He had physiotherapy and saw a Neurologist for neuropathy. He saw a pain specialist for pain in his right leg.
Mr Broderick noticed pain early on in the right shoulder. He saw a Dr Robin, Orthopaedic Surgeon. He had physiotherapy and cortisone injections.
Mr Broderick was asked about the lower back. He stated the lower back was painful from the day of the accident. He had physiotherapy.
Mr Broderick was asked about his left and right knees. He had ongoing physiotherapy.
Mr Broderick developed consequential conditions to his right shoulder, lumbar spine, left knee, right knee.”
The MA then set out details of his present treatment and symptoms.
When asked to provide details of any previous or subsequent accidents, injuries or conditions, the Medical Assessor said:
“On 13 April 2016, Mr Broderick sustained an injury to his right shoulder lifting a pack of pipes onto a utility truck. He had some physiotherapy. Mr Broderick stated he had some right shoulder pain at the time of the injury August 2016. Mr Broderick stated that one week prior to the fall he wanted to do physiotherapy on the right shoulder again due to ongoing pain…”
The MA then set out details of Mr Broderick’s general health, work history and the impact of his injuries on his social activities and activities of daily living (ADL’s).
The MA then documented his findings on physical examination as follows:
“Active range of motion was measured with a goniometer:
Upper Limb Right (degrees) IMP Left (degrees) IMP
Shoulder-
Flex/Ext 100/30 5/1 160/50 1/0
Abd/Add 80/10 5/1 150/40 1/0
ExtRot/IntRot 50/70 1/1 70/80 0/0
The right shoulder had a smooth passive range of motion with some guarding to overhead movements, with positive reported impingement signs and normal rotator cuff strength.”
He then turned to consider the various radiological and other material he had before him and said:
“27 April 2016 Right shoulder plain radiograph No bone or joint abnormality Is demonstrated. There is no calcification in the region of the supraspinatus tendon.
27 April 2016 US right shoulder The rotator cuff tendons appear intact. No partial or full thickness tears are detected. The long head of biceps tendon also appears normal. There is mild thickening of the subdeltoid bursa compatible with low grade bursitis although the left shoulder subdeltoid bursa is also thickened but patient is asymptomatic on the left side. No other abnormality is seen…
28 November 2016 US right shoulder Small full thickness supraspinatus tendon tear with associated subacromial/subdeltoid bursitis. If clinically indicated, this could be injected under ultrasound control.
31 January 2017 US guided injection, right subdeltoid bursa.
31 October 2017 MRI right shoulder No change in the size or appearance of the small supraspinatus tendon tear. Persistent thickening of the inferior joint capsule.
21 April 2017 - MRI right shoulder. Small full thickness tear of the supraspinatus tendon without evidence of retraction or fatty infiltration.
22 August 2018 MRI right shoulder. Small supraspinatus tendon tear. No change in the appearances since the previous study of 30/10/2017…”
The MA then summarised the injuries and diagnoses as follows:
“Right ankle fracture. Surgery was performed 15 August 2016 for an ORIF. Surgery was later performed apparently for hardware removal.
Right shoulder rotator cuff tear. This was treated conservatively.
Right knee pain.
Left Knee pain
Scarring.”
The MA assessed a total of 14% WPI.
He assessed 7% WPI in respect of the right upper extremity from which he deducted 1/3^rd leaving a total of 5% WPI.
He said:
“There was a history of a pre-existing right shoulder condition from a work injury 13 April 2016 and Mr Broderick stated he had some right shoulder pain at the time of the subject injury August 2016. Mr Broderick stated that one week prior to the fall he wanted to do physiotherapy on the right shoulder again due to ongoing pain. An ultrasound of the right shoulder 27 April 2016 revealed an intact rotator cuff. An ultrasound of the right shoulder after the subject injury 28 November 2016 revealed a small full thickness supraspinatus tear. An MRI of the right shoulder 21 April 2017 confirmed a full thickness rotator cuff tear. Based upon the available information, I consider that a deduction of 1/3 is reasonable for the pre-existing condition.
7 2.33 = 4.7 which rounds to 5% WPI.”
The MA then turned to consider the other medical evidence and said:
“I have reviewed the reports of Dr James Bodel 13 June 2018 and 18 September 2020 and make the following comments: Dr Bodel applied the entire right shoulder impairment to the injury at work September 1015. I applied a portion to the injury 8 August 2016 and deducted a portion for the pre-existing condition.
I have reviewed the reports of Dr Matthew Giblin dated 30 November 2020, 23 August 2021, 23 March 2022, and 1 August 2022, and make the following comments: Our impairment of the right shoulder differed due to differences in the measured active range of motion. We applied slightly different applications of a deduction. I felt a 1/3^rd deduction was reasonable based upon the evidence.
I reviewed the report of Dr Tim Ho, Pain Specialist, dated 5 January 2021 and make the following comments: Our assessment of the right shoulder was similar. Dr Ho did not apply any deductions which I do not agree with.”
The MA concluded:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Right Shoulder.
The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a…
(i) Right shoulder previous workplace injury resulting in symptoms.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 1/3 for the right shoulder for the following reasons: Explanation is given in the calculation of WPI.”

The Submissions

The appellant has set out in considerable detail the background to the claim and the relevant evidence, summarised below.
(a)    The appellant’s evidence, as set out in his statement dated 8 January 20223, is that prior to the subject injury on 8 August 2016, he had experienced a work injury in 2014/2015 and on 22 April 2016 to his right shoulder. He had received medical treatment, physiotherapy, and was cleared for unrestricted duties on 6 July 2016, although he continued to have pain in his right shoulder.
(b)    An ultrasound that had been performed on 27 April 2016 (prior to the subject injury but subsequent to the 22 April 2016 injury) reported that the rotator cuff tendons appeared to be intact. There was no evidence of either partial or full thickness tears and the long head of the biceps appeared normal. There was evidence of bursitis.
(c)    The appellant’s evidence was that, following the injury to the right ankle on the 8 August 2016, the date of the subject injurious event, he was required to use crutches for a period of 6 months… he began to experience such severe pain in his right shoulder, that he had to stop using a crutch with that arm and use only one crutch. There was evidence of bruising in the right shoulder from the use of the crutch. His evidence was that he would have to take regular breaks and after about 2 to 3 weeks of using crutches, he noticed pain in his right shoulder increase significantly.
(d)    Senior Member Haddock of the PIC found that on 8 August 2016 the appellant suffered a consequential condition in his right shoulder as a result of the prolonged use of crutches and a walking stick.
(e)    The appellant’s evidence was that, prior to the subject injury, he been able to work despite his symptoms through the use of physiotherapy but that following the fall, the subject injury, the pain in his right shoulder intensified such that he was struggling with activities. Over time, there was no improvement in the right shoulder.
(f)    Dr Christina Wong confirmed that prior to the subject injury, the appellant managed the right shoulder pain with physiotherapy.
(g)    Dr Wong reported that, following the fall, the Appellant Worker had a painful arc in his right shoulder, a symptom not recorded prior to the subject injury. This was also confirmed by Dr K Rajesh on 30 June 2017…he opined that the painful arc demonstrated in the higher degree correlated with an acromio-clavicular joint involvement and it was this combination which was causing the pain.
(h)    Dr M Giblin reported that the appellant had a pre-existing condition in his right shoulder, and that the pain prior to the subject injury was 4/10. Following the subject injury, Dr Giblin reported that the appellant informed him that his pain intensified to 8/10 as a result of the use of crutches and walking sticks.
(i)    Following the subject injury, an ultrasound was performed on the right shoulder which was reported on 28 November 2016.It demonstrated a small full thickness tear of the supraspinatus tendon with associated subacromial/subdeltoid bursitis. MRI’s reported on 21 April 2017 and on 31 October 2017 confirmed that pathology.
(j)    Dr Wong opined that the appellant’s shoulder had not been improving because he needed to use it to support his ankle. He required the use of both upper limbs to safely use crutches and maintain some domestic independence… Following the subject injury, the appellant also required a cortisone injection to manage the pain. This was not required previously.
The appellant then turned to address the s 323 issue and submitted as follows:
(a)    It is well established that the assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses.
(b)    The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment.
(c)    Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.
(d)    What is therefore required for the proper discharge of the task pursuant to s 323 is for the MA to determine whether, and to what extent, the degree of impairment resulting from the work injury would not have been as great if the pre-existing condition/injury had not occurred.
(e)    This inquiry requires a proper evaluation of all of the evidence before the MA.
(f)    There is no evidence that the MA has carried out this evaluative task. He has not dealt with:
• The identity of the pre-existing injury or condition - in other words, the MA did not identify the pre-existing injury or condition in the right shoulder or how it contributed to the assessed degree of permanent impairment;
• The evidence that the Appellant Worker was only being treated by physiotherapy with some improvement sufficient for him to return to work prior to the subject injury;
• The evidence of the prolonged use of crutches, the bruising, and the intensification of symptoms of pain that failed to improve with physiotherapy and a cortisone injection following the subject injury and developed into constant pain and stiffness; or
• The significance of the difference in the pathology demonstrated on the ultrasounds before and after the subject injury.
(g)    It is well-established that a MA must provide adequate reasons and must expose the process of reasoning.
(h)    The MA has simply made a conclusory statement when he stated that “I consider that a deduction of one-third is reasonable for the pre-existing condition”. There is no analysis of the evidence explaining that conclusion. There is no evidence identified to support that conclusion.
(i)    Some of the available evidence was identified by the MA, but he failed to disclose how it was used to reach the conclusion of a one-third deduction. What little reasoning there is suggests that because there had been a prior workplace injury to the right shoulder, there must have been an impairment to a significant degree.

Discussion

We agree with the thrust of the appellant’s submissions for reasons that follow.
One of the difficulties in cases like this is that there is very little evidence as to the nature and extent of any pre-existing injury or condition.
In other words, we do not know what the range of movement was nor the true clinical picture prior to the subject injury.
The best that can be done in these circumstances is to look at any radiological material.
In this case, there is clear evidence of a change in pathology after the injury as demonstrated by the ultrasound performed on 28 November 2016 which demonstrated a small full thickness tear of the supraspinatus tendon with associated subacromial/subdeltoid bursitis.
As the appellant correctly pointed out, “MRI’s reported on 21 April 2017 and on 31 October 2017 confirmed that pathology.”
We also note that Mr Broderick was able to continue his work prior to the subject injury, albeit with some ongoing symptoms.
But symptoms alone are not necessarily indicative of impairment.
This is a difficult case since Mr Broderick kept sustaining injuries to his right shoulder.
All medical assessors have struggled to make a s 323 deduction. For example, Dr Giblin at first deducted one-half then subsequently assessed a one-quarter deduction.
It is for this very reason that it is “too difficult” to accurately assess any pre-injury impairment which is precisely why the legislation provides for a statutory 10% deduction in circumstances where it is too difficult or costly to assess any deduction.
We add that the deduction of one-third made by the MA is significant, and inconsistent with the whole of the evidence, in particular Mr Broderick’s statement that he was able to function fairly well prior to the subject injury.
Finally, we also agree with the appellant’s submission that the MA failed to give adequate reasons, particularly when making such a large deduction, such as to allow the parties to understand his path of reasoning.
A simple statement that “I consider that a deduction of 1/3 is reasonable for the pre-existing condition” is totally inadequate.

For these reasons, the Appeal Panel has determined that the MAC issued on 29 August 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7714/22
Applicant:	Matthew Broderick
Respondent:	Swan Hardware & Staff Pty Ltd

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 Todd Gothelf 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. Right Lower Extremity( ankle, knee)	8/8/16	17-11	17-10,12	8%	0	8%
2.Left Lower Extremity (knee)	8/8/16	17-10	0%	0	0%
3. Right Upper Extremity (shoulder)	8/8/16	2.20	16-40,43,46	7%	1/10th	6%
4. Scarring (TEMSKI)	8/8/16	14.1	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2023] NSWPICMP 677

15 December 2023