Coates v Metal Manufacturers Limited
[2025] NSWPICMP 14
•7 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coates v Metal Manufacturers Limited [2025] NSWPICMP 14 |
| APPELLANT: | Victor Coates |
| RESPONDENT: | Metal Manufacturers Limited |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Doron Sher |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 7 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; section 323; deduction in an aggravation of disease case; appellant worked in heavy work for a period of 10 years; Medical Assessor (MA) erred in failing to identify at what point pre-existing condition existed; consideration of Coca-Cola Europacific Partners API Pty Ltd v Pombinho; whether the “starting point” of the deduction was appropriately assessed in the circumstances; Held – MA erred in deduction; basis for “starting point” of deduction unclear; assessment of permanent impairment revoked;; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 August 2024 Victor Coates, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor (the Application). The medical dispute was assessed by Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 July 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Coates was employed by Metal Manufacturers Limited (the respondent) as a storeman. His duties involve manual handling including loading and unloading trucks, as well as purchasing, invoicing and driving forklifts. On 1 August 2016 Mr Coates was unloading conduit from a van when it slipped. He lunged to grab it and felt pain in his shoulder, which progressively deteriorated over the course of a week. Over time, he developed similar symptoms in his left shoulder. However, Mr Coates had been engaged in heavy work for many years.
He brought a claim in the Personal Injury Commission (Commission) for lump sum compensation based on an assessment of impairment of Dr Bodel. That assessment included the left and right shoulders as well as the cervical spine. In proceedings in the Commission, it was agreed between that parties that the Mr Coates had not suffered any permanent impairment in the cervical spine and that the matter should be remitted to the President for referral for assessment of the left and right shoulders.[1] The date of injury for the purposes of the assessment was 30 November 2016 (deemed), representing an aggravation (etc) of disease, due to 10 years of heavy work.[2]
[1] Order 1 of the consent orders dated 23 April 2024 and amended 3 May 2024.
[2] Per the description of injury in the Application.
Permanent impairment was assessed by Rob Kuru, a Medical Assessor, who issued a MAC on 25 July 2024. The Medical Assessor assessed 8% permanent impairment in each shoulder, before making a deduction of 1/10th for a total whole person impairment of 14%.
The appellant appeals against that assessment, focussed solely on the deduction made pursuant to s 323 of the 1998 Act.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel were satisfied that a ground of appeal had been made out, and to properly determine the application of s 323 of the 1998 Act, a re-examination was required. In particular, the issue of the “starting point” per Coca-Cola Europacific Partners API Pty Ltd v Pombinho[3] should be considered.
[3] [2024] NSWCA 191.
Accordingly, the Appeal Panel issued a Direction on 15 October 2024, identifying the issue as set out above, and inviting the parties to provide submissions addressing the point, or alternatively inviting the appellant to withdraw the appeal. Subject to the direction to provide submissions and invitation to withdraw the appeal, a re-examination was scheduled for 22 November 2024.
The appellant did not respond to the Appeal Panel’s direction either by filing submissions or withdrawing the appeal.
On 29 October 2024, the respondent provided further submissions in accordance with the Appeal Panel’s direction.
Consistent the above, a re-examination occurred, conducted by Doron Sher, Medical Assessor Panel Member. The details of that re-examination will be included and discussed below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor failed to conduct his assessment within the terms of the referral. The appellant submits that Dr Kuru considered the deemed date of injury to be with reference to the frank injury on 1 August 2016. In that regard, the Medical Assessor embarked upon a path of impermissible reasoning to conclude the appellant had a pre-existing condition.
The appellant’s second ground of appeal is that the only conclusion the Medical Assessor could reach is that there was no pre-existing condition causative of the agreed injury, or alternatively that there was no path of reasoning to identify a pre-existing condition. Any condition that pre-existed the deemed date could only have been work related, not pre-existing as defined in s 323. This is a legally unreasonable conclusion and a constructive failure to exercise jurisdiction.
In reply, the respondent sets out some general principles regarding the assessment of impairment including with how other medico-legal opinions should be treated. In terms of the specific issues, in respect of ground 1, the respondent submits that in spite of the matter being agreed as a disease injury, it was open to the Medical Assessor to apply a deduction for a pre-existing condition. The assessment was not contrary to the terms of the referral and the Medical Assessor provided a rationale for his decision, and has provided reasons in the MAC for doing so. A deduction is required even where the pre-existing condition was asymptomatic prior to the injury.
In response of the second ground, the respondent submits that the path of reasoning was logical and based on the Medical Assessor’s expertise, the information provided, and the examination of the worker. It is of little significance that other medical experts did not make a deduction, as a difference of opinion does not amount to a demonstrable error. In any event, Dr Harrington made a deduction of 1/10th, reflecting a logical conclusion that there was a pre-existing condition.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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’s submissions identify two grounds of appeal, although both concern s 323 of the 1998 Act. The Medical Assessor made a deduction of 1/10th pursuant to s 323 from the base assessment of 8% in each body part. This meant the appellant’s total whole person impairment was assessed at 14%, below the important threshold of 15%.
Given the issues raised and how the Appeal Panel has considered those issues, it is appropriate to first consider whether a ground of appeal has been made out, and then deal with the substance of the issues (including the effect of Pombinho).
Section 323 of the 1998 Act
The Medical Assessor made a deduction from both shoulders. The appellant has challenged this on two bases – the first, in general terms, being that the Medical Assessor approached the whole assessment incorrectly on the basis that it he presumed he was assessing the frank injury that occurred on 1 August 2016, as opposed to the aggravation of a disease injury that was deemed to have occurred on 30 November 2016. The second concerns the reasons provided for the conclusion reached by the Medical Assessor, and whether it was reasonably reasonable for him to reach that conclusion.
In considering the application of s 323 of the 1998 Act a comparative exercise is necessary. One needs to look at the current degree of permanent impairment as the first step in any such exercise, then consider whether a previous injury or pre-existing condition or abnormality exists, and then finally the extent to which that, once identified, contributes to impairment. This is consistent with the three step approach set out by Schmidt J in Cole v Wenaline Pty Limited.[4]
[4] [2010] NSWSC 78.
In the present case, as the appellant submits, the starting point was not the incident on 1 August 2016, but rather the injury as described in the Application:
“Right shoulder, left shoulder and neck due to 10 years of loading shelves, picking orders, driving forklifts, loading and unloading trucks and vehicle, including lifting heavy conduit and other materials above shoulder height causing aggravation, acceleration, exacerbation and or deterioration of degenerative disease in both shoulders and neck”.
There also appears a second description of injury in the Application:
“Right shoulder, left shoulder, neck, consequential left shoulder and neck and secondary psychological injury due to nature and conditions of employment with repetitive overhead reaching, carrying, lifting, working with neck in a prone position”.
Both injury are described as the type of injury being “Personal”, that is a frank injury under s 4(a).
By the time the matter came before a member, it was clear that the injury was intended to be an aggravation of a disease type case, by the nature of the agreement between the parties. The reference to a “deemed date of injury of 30 November 2016” in order 3 of the consent orders makes that clear. Further, it is clear that by order 2, the shoulder is a consequential condition (although this has little consequence on the task to be undertaken by the Medical Assessor).
The history relating to the injury recorded by the Medical Assessor is as follows:
“On the date of injury, Mr Coates was unloading conduit from the top of a van. As he was manipulating it overhead, some of the conduit slipped. As he lunged to grab it, he developed pain in his right shoulder. The pain in his shoulder progressively deteriorated over the course of a week.”
This is consistent with the incident that occurred on 1 August 2016, as described in the appellant’s statement. It is not consistent with the applicant’s pleadings in respect of injury, nor the agreement of the parties in terms of the referral for assessment.
The summary of injuries and diagnoses provides the following:
“Mr Coates injured his right shoulder lifting overhead at work and was diagnosed with a significant rotator cuff injury, which was deemed not repairable. Over time he has gone on to develop similar symptoms in the left shoulder.”
The Medical Assessor then goes on to consider the relevant issues under s 323 on page 5 of the MAC:
“a) In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
(i) Chronic rotator cuff tears right upper extremity impairment (shoulder).
(ii) Chronic rotator cuff tears left upper extremity impairment (shoulder).
b) 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, and in the following ways:
(i) The injury to both shoulders represents aggravation of a pre-existing condition.
c) The extent of the deduction is difficult or costly to determine so in applying the
provisions of s.323 (2) I assess the deductible proportion as one tenth”
The parties have referred to the competing medical assessments that informed the medical dispute before the Commission. Dr Bodel, for the appellant, makes no deduction.
Meanwhile, Dr Harrington for the respondent initially made no deduction,[5] providing:
“Although he has chronic rotator cuff disease, he was asymptomatic with a full range of movement prior to the work related injury in August 2016. Therefore, there are no deductions.”
[5] In his report dated 10 January 2022.
He then changes his opinion and makes a deduction (albeit without explanation as to the change of view), providing:
“Given that Mr Coates has bilateral shoulder problems with identical pathology, I believe there is evidence to support a deduction of 1/10th for the right shoulder. This value is 0.7% and leaves 6% WPI causally related to the work injury.”
Neither expert really tackles the fundamental question of the nature of the pathology and how Mr Coates’ years of employment in heavy duties contributed to that pathology, as opposed to any pre-existing condition or abnormality. The radiology before the Medical Assessor and considered by the Appeal Panel is all contemporaneous or post the incident on 1 August 2016 and the cessation of work on 30 November 2016. That is, it does not predate the commencement of employment with the respondent, or the commencement of the type of duties that have caused the injury agreed between the parties, being an aggravation of a disease that occurred due to the nature and conditions of work
In present circumstances, whereby the accepted injury is in the nature of an aggravation of a disease, Cullen v Woodbrae Holdings Pty Ltd,[6] a decision of Beech-Jones J, is instructive. That case makes it clear that there must be a point in time at which a pre-existing condition existed.[7] This is differentiated from a condition that existed from a condition that existed outside of the course of employment, as opposed to a condition that existed prior to employment.[8] The issue in that case was an evidentiary one, but it remains a relevant guiding principle applicable in the present factual circumstances, that are similar. Section 323 requires that:
“Thus to establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition.”[9]
[6] [2015] NSWSC 1416.
[7] At [56].
[8] At [57].
[9] At [46].
The Medical Assessor identifies the basis of the deduction being “chronic rotator cuff tears” in both shoulders but did not identify the point at which those tears first existed, and whether those tears pre-existed the commencement of heavy duties with the respondent that lead to the present injury. The Appeal Panel is satisfied this is in error. Whilst the radiology from 2016 suggests degenerative change, there is no evidence available to identify at what point the degenerative changes commenced and whether they constitute a pre-existing condition, as opposed to a condition that existed outside of the course of employment (which s 323 is not concerned with).
Further, the Medical Assessor’s explanation of how the pre-existing conditions contributed to impairment is, as the appellant submits, legally untenable. The Medical Assessor concludes that “the injury to both shoulders represents an aggravation of a pre-existing condition”. This conclusion suggests that in all circumstances whereby an injury is pleaded to be an aggravation (etc) type injury, then there must be a deduction. That is clearly not the case and not acceptable at law. It is the type of assumption criticised in Cole.
In their submissions in reply, the respondent referred to various parts of the medical evidence that supported the conclusion reached by the Medical Assessor, that is that a deduction would be appropriate. The references are to parts of the reports of Dr Harrington.
Whilst the Appeal Panel accepts that it is open to make a deduction where a pre-existing condition is asymptomatic,[10] that condition must still relevantly pre-exist the injury referred for assessment. In the present circumstances, there is no evidence on which that conclusion can be based. That is due to the specific factual circumstances of the case whereby the injury has been caused by the heavy nature of the employment over many years.
[10] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43].
As a result, the Appeal Panel are satisfied that the MAC contains a demonstrable error. The Medical Assessor has erred in his approach to s 323. It is the Appeal Panel’s view that no deduction is appropriate in the circumstances, as the point at which a pre-existing condition existed is not ascertainable, and it is impossible to differentiate what pre-existing the commencement of the appellant’s heavy duties (about 10 years prior to the date of injury) and circumstances external to employment, but concurrent with that period of heavy duties (factors outside of the consideration of s 323).
The “starting point” for the purposes of s 323
As discussed above, the Appeal Panel called for submissions on the appropriate exercise of power under s 323 of the 1998 Act. The parties attention was directed to the issue in the following manner, per the preliminary review direction issued on 15 October 2024:
“1. The Appeal Panel are of the view that in order to determine the impact of pre-existing injury on current whole person impairment, in accordance with s 323 of the 1998 Act, the ‘starting point’ must be considered. In present circumstances, that is the assessment of permanent impairment made in the MAC, in particular at Part 10.
2. In relation to the above, the attention of the parties is drawn to the decision of Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191, in particular at [86] of that decision.”
The parties were directed to provide written submissions. The appellant was also directed to consider whether it would be appropriate to withdraw the appeal. The purpose of that invitation was to afford procedural fairness to the parties, as well as to give the appellant an opportunity to preserve the assessment of 14% whole person impairment, in circumstances where there was a real possibility the degree of impairment would be lower on any re-examination.
For reasons unclear, the appellant did not provide any submissions in response and has not withdrawn the appeal. Accordingly, the Appeal Panel proceeded to conduct a re-examination of the worker. Before turning to the outcome of that re-examination, it is appropriate to discuss the authority of Pombinho and the present circumstances of the case.
Pombinho concerned a claim for psychological injury. The basis of the claim in the commission was an assessment of 23% whole person impairment. The matter proceeded to a Medical Assessor, who assessed 24% whole person impairment and made no deduction pursuant to s 323 of the 1998 Act. That was assessment was appealed by the employer in respect of a number of grounds. For present purposes, it was alleged that the Medical Assessor erred in failing to make a deduction pursuant to s 323 of the 1998 Act. The appeal was upheld on multiple bases, the MAC revoked, and replaced with an assessment of 7% whole person impairment, to which a deduction of 1/10th was applied.
Mr Pombinho sought judicial review of that decision. The primary judge concluded that in reassessing whole person impairment, the Appeal Panel did not limit its review to the grounds of appeal on which the appeal was made and exceeded its jurisdiction. The employer sought leave to appeal that decision to the Court of Appeal, who allowed the appeal and set aside the order quashing the decision of the Appeal Panel.
One of the issues raised, and the issue relevant in the present case, is whether the Appeal Panel were limited, in their consideration of s 323, to the assessment of impairment made by the Medical Assessor (under the Psychiatric Impairment Rating Scales (PIRS)). The Court (Ward P, White JA and Stern JA agreeing) concluded that one of the grounds raised on appeal (a failure to consider relevant evidence) required the Appeal Panel to take into consideration all of the material, including all of the PIRS categories, as the material was relevant to all of those categories.[11]
[11] At [83]-[85].
Were that the sole justification for the decision that the Appeal Panel were entitled to consider the entire assessment, that alone may have limited the decision to the factual circumstances found in that case. However, Ward P went further to consider whether, as an exercise of statute under s 323, the “starting point” of the assessment of impairment should be considered:
“In any event, Ground 4 in my opinion suffices to bring the assessment of Mr Pombinho’s current whole person impairment within the scope of the grounds of appeal and hence within the jurisdiction of the Appeal Panel. That is because I accept the appellant’s submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (i.e., the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment.”[12]
[12] At [86].
It is true that Pombinho concerned a different injury and different method of assessment under the Guidelines to that before the Appeal Panel presently. Mr Pombinho’s case was for a psychological injury. Here we are dealing with an injury to two shoulders. However there is no basis to limit the authority of Pombinho to matters only dealing with psychological injury.
The Appeal Panel have not been assisted in this regard by any submissions from the appellant. The respondent’s submissions do not go to this issue but rather deal with whether it was appropriate for the Medical Assessor to make a deduction. The respondent’s further submission oppose the re-examination on the basis that there is “clear medical evidence available which describes the worker’s pre-existing impairment as a ‘starting point’”. This misunderstood the conclusion and reference to the “starting point” in Pombinho, which is the starting point for the consideration of a deduction pursuant to s 323, and whether the Appeal Panel is bound by the assessment made in that regard. The respondent’s submissions are rejected.
The reason why this issue is relevant is because of the way the Medical Assessor in the circumstances of this case, approached the task of assessing of impairment of the worker on examination. There are circumstances where the approach taken by a Medical Assessor will form a valid basis for then applying s 323 and no deviation will be necessary or invited from that “starting point”. This is not one of those cases.
The Medical Assessor sets out his findings on physical examination on page 3 of the MAC:
“On examination he was a well looking man in no obvious distress. The range of motion in his shoulders was assessed as follows:
MOVEMENT LEFT RIGHT Flexion 180° 180° Extension 50° 50° Abduction 180° 180° Adduction 30° 30° Internal rotation 80° 80° External rotation 20° 40°
There was obviously a painful arc bilaterally as Mr Coates moved his arms through the horizontal.”
The only ratable impairments as a result of this table is adduction of 30°, for 1% upper extremity impairment, and external rotation of 20° and 40°, both being 1% upper extremity impairment. This would rate for 2% upper extremity impairment in each shoulder, which converts to 1% whole person impairment for each shoulder for a total permanent impairment of 2%.
The Medical Assessor acknowledge this on page 4 of the MAC:
“Range of motion was assessed according to AMA 5 page 476 16.40, 477 16.43 and 479 16.46. On this basis, only 1% whole person impairment is assessable for either shoulder. According to SIRA page 11, paragraph 2.14, I regard this as a situation where ‘the loss of shoulder motion does not reflect the severity of the disorder, associated with pain’ and that this ‘should be assessed by a comparison with other impairments that have similar effects on upper limb function’.
On this basis, I think it appropriate to assess 8% whole person impairment for either shoulder, noting that ultimately when the condition progresses, should Mr Coates go on to reverse shoulder replacement, his impairment will be significantly higher.” (emphasis in original)
Here the Medical Assessor has relied upon cl 2.14 of the Guidelines, which provides:
“2.14 Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 Section 16.4 ‘Evaluating abnormal motion’. (Please note that AMA5 indicates that internal and external rotation of the shoulder are to be measured with the arm abducted in the coronal plane to 90 degrees, and with the elbow flexed to 90 degrees. In those situations where abduction to 90 degrees is not possible, symmetrical measurement of rotation is to be carried out at the point of maximal abduction.)
Rare cases of rotator cuff injury, where the loss of shoulder motion does not reflect the severity of the tear, and there is no associated pain, may be assessed according to AMA5 Section 16.8c ‘Strength evaluation’. Other specific shoulder disorders where the loss of shoulder motion does not reflect the severity of the disorder, associated with pain, should be assessed by comparison with other impairments that have similar effect(s) on upper limb function.” (emphasis in original)
The Appeal Panel notes the following issues with the Medical Assessor’s approach that make in unacceptable as a “starting point”. Firstly, the Medical Assessor has not explained why the loss of shoulder motion does not reflect the severity of the disorder. It is a bald conclusion without explanation. The Medical Assessor indicates a “painful arc bilaterally as Mr Coates moved his arms through the horizontal”. If this represents pain in flexion from 90°, this is not explained in sufficient detail.
Secondly, the “specific shoulder disorder” that is a requirement for the application of this clause has not been identified.
Thirdly, the assessed impairment of 8% does not appear to rationally be based on anything. The Appeal Panel are unable to determine why the Medical Assessor has chosen this figure. No part of AMA 5 or the Guidelines has been referenced.
Fourthly, even were it open for the Medical Assessor to apply that clause of the Guidelines to the specific factual circumstances present (which, as set out above, is neither explained nor apparent how it might be open), the Guidelines requires this to be assessed in a comparative man, with “other impairments that have similar effects on upper limb function”. No specific “other impairments” have been identified or explained as to how they would effect upper limb function.
In circumstances where the Appeal Panel are unable to understand how the Medical Assessor has reached his conclusion for assessing 8% in both shoulders (which, it is noted, is not consistent with either independent medical expert who has assessed Mr Coates), we are unable to accept it as the “starting point” for the assessment of impairment.
In those circumstances, the Appeal Panel were of the view it was appropriate to re-examine Mr Coates. As previously indicated, this position was communicated to the parties. A re-examination occurred on 22 November 2024, by Doron Sher, Medical Assessor Member of the Appeal Panel. A report from that re-examination is as follows:
“Who Attended
Mr Coates attended alone.
Education
Mr Coates completed his schooling until Year 10 and trained as a rigger and as a storeman.
Injury
He feels that his injury was in August although I understand the deemed date of injury is the 30/11/2016.
At the time he was unloading conduit from the top of a van. As he was manipulating it the conduit slipped and he developed pain in his shoulder. The pain progressively deteriorated over the course of a week and he had treatment by his General Practitioner and an orthopaedic surgeon. The orthopaedic surgeon did not suggest immediate surgery but eventually a reverse shoulder replacement.
Subsequent Progress and Current Symptoms
Since that time he has had a subacromial injection and physiotherapy but these have not made much difference to him. He has also recently done more driving travelling around Australia and this certainly has exacerbated his pain. He uses Ibuprofen daily. He is unable to play golf anymore and his wife does some of the manual work around the house like lawns and hedges.
He describes a sharp pain in the anterior aspect of both of his shoulders with a grinding sensation deep inside. Despite this he is able to continue most of his activities.
Examination:
The patient was asked whether he gave consent for a physical assessment and he verbally confirmed that he did.
They were advised not to perform any movements that would increase their symptoms. At the commencement of the examination, they were advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons. They were informed that I would require their full cooperation but that I would cease or modify any manoeuvres that were particularly distressing for them.
His clinical examination showed obvious deltoid wasting which was worse on the right.
Forward elevation right 145, left 150, extension right 50, left 45, abduction right 155, left 160, adduction left and right 30, ABER right 70, left 0, ABIR right 70, left 60.
MOVEMENT LEFT RIGHT Flexion 150° 145° Extension 45° 50° Abduction 160° 155° Adduction 30° 30° Internal rotation 60° 70° External rotation 0° 70° He had significant external rotation weakness on the left side with only mild weakness throughout all other regions and with the right shoulder. There was no bony tenderness and no palpable crepitus today. Calculations were made using Figure 16-38, 16-40, 16-41, 16-43, 16-44 and 16-46 as well as Table 16.3 to make the appropriate calculations.
Impairment Calculation
Calculating upper limb impairment is:
RIGHT:
3% flexion, 0% extension, 1% abduction, 1% adduction, 0% external rotation and 1% internal rotation giving a total of 6% upper limb for the right shoulder.
LEFT:
For the left shoulder, flexion 2%, extension 1%, abduction 1%, adduction 1%, external rotation 2%, internal rotation 2% giving a total of 9% upper limb impairment.
Whole person impairment:
This converts to 4% whole person for the right side and 5% whole person for the left side with a total of 9% whole person impairment.”
The Appeal Panel adopts the assessment of the Medical Assessor Member, Doron Sher.
The Appeal Panel notes that Mr Coates demonstrated a greater level of restriction on examination by the Medical Assessor Member than was found before Dr Kuru. The assessment also differs to those provided by the independent medical experts as contained in the material before the Appeal Panel. This represents the nature of method of assessment and the variation in Mr Coates’ presentation on the day to various assessors. This does not negate the validity of the assessment no make it incapable of assessment. The Appeal Panel are satisfied that Mr Coates has reached maximum medical improvement.
As set out above the Appeal Panel accepted the appellant’s submissions that the deduction made was in error. It is the Appeal Panel’s view that no deduction is appropriate in the circumstances.
The Appeal Panel accordingly revokes the MAC and replaces it with the certificate which will follow these reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W121/24 |
Applicant: | Victor Coates |
Respondent: | Metal Manufacturers 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 Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Right upper extremity (shoulder) | 30/11/2016 (deemed) | Ch 2, pp 10-12 | Ch 16, Figures 16-38, | 4% | Nil | 4% |
| 2. Left upper extremity (shoulder) | 30/11/2016 (deemed) | Ch 2, pp 10-12 | Ch 16, Figures 16-38, | 5% | Nil | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
0
6
0