Coles Supermarkets Australia Pty Ltd v Chand

DETERMINATION OF APPEAL PANEL
CITATION:	Coles Supermarkets Australia Pty Ltd v Chand [2024] NSWPICMP 241
APPELLANT:	Coles Supermarkets Australia Pty Ltd
RESPONDENT:	Michael Chand
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	24 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to the left upper impairment; parties agreed Medical Assessor (MA) to make assessment on the papers as Mr Chand had Lewy Body Dementia; appellant employer alleged error on the basis MA accepted diagnosis made by worker’s IME of brachial plexus injury rather than alternate diagnosis including diagnosis made by appellant’s IME; Panel found no demonstrable error; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 February 2024 Coles Supermarkets Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 January 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, 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 to the appeal, Mr Chand (Mr Chand) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 26 September 2023 in which he claimed 19% whole person impairment (WPI) of the left upper extremity, as a result of the injury on 10 August 2017.
In the Certificate of Determination – Consent Orders (COD) dated 21 June 2023, Member Wright made the following orders:
“1.     Application amended, at name of application, to be Michael Chand, by his tutor Sunit Chand.
2. Matter remitted to the President for referral to a Medical Assessor (MA) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a) Date of injury: 10 August 2017 – personal injury
b) Body systems/parts:
i. Left upper extremity
c) Assessment: whole person impairment
3.      The documents to be reviewed by the MA are:
a) Application and attached documents, and
b) Reply and attached documents
c) Admission summary of Liverpool Health Service dated 14 March 2023
d) Document produced by Stanhope Medical Centre and/or Liverpool Medical Centre in response to directions for production issued in these proceedings.
4.      Examination or assessment on the papers by the MA not to take place before 12 December 2023”.
Member Wright, in the COD, noted that Mr Chand had been diagnosed with Lewy Body Dementia.
The matter was referred to Medical Assessor, Greg McGroder (the Medical Assessor), on 8 November 2023 for assessment on the papers of WPI of the left upper extremity as a result of the injury on 10 August 2017.
The Medical Assessor made an assessment on the papers. He noted that Mr Chand had been diagnosed with Lewy Body Dementia which was accompanied by significant Parkinsonian-like symptoms making it impossible to attend for an in-person medical assessment. The Medical Assessor assessed 19% WPI of the left upper extremity as a result of the injuries on10 August 2017.

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 requested that Mr Chand be re-examined by a Medical Assessor who is also a member of the Appeal Panel. Mr Chand submitted that there would appear to be nothing to be gained by an in-person assessment having regard to Mr Chand’s medical condition.
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 the grounds of appeal had not been made out.

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.
The appellant’s submissions include the following:
(a)    ground 1 – use of the incorrect criteria by application of WPI based on diagnosis of brachial plexus traction injury. The Medical Assessor has erred in accepting the diagnosis of brachial plexus injury where this diagnosis appears only to be accepted by the stand-alone opinion of Mr Chand’s qualified orthopaedic surgeon, Dr Pillemer. The MAC does not appear to give proper regard to the following treating evidence, which provides a more conclusive diagnosis, namely the reports of Dr Marcus Chia dated 8 February 2018 and 22 February 2018, reports of Associate Professor Raj Sundaraj dated 13 July 2018, report of Associate Professor James Burrell, dated 3 June 2019, report of MRI Brachial Plexus dated 7 November 2019 and report of Dr Stan Levy dated 22 May 2020.
(b)    Accordingly, none of the treating doctors had diagnosed Mr Chand with a brachial plexus injury and it appears that all the treating doctors diagnosed him with a frozen shoulder. Therefore, the Medical Assessor’s conclusion that “the most likely diagnosis according to the specialists who have reviewed Mr Chand is that he in all likelihood did have a brachial plexus injury” does not appear to be supported by the evidence.
(c)    More weight should have been given to Associate Professor Miniter’s opinion given it is aligned with the treating evidence. Accordingly, the Medical Assessor erred in accepting Dr Pillemer’s stand-alone opinion that Mr Chand had a brachial plexus injury.
(d)    Failing to order additional investigations – the Medical Assessor notes in the MAC “As no-one has been basically able to exclude the diagnosis of a brachial plexus injury I would conclude that this is the most likely diagnosis”. This remark suggests the problem the Medical Assessor was faced with, that is, inconclusive investigations and various diagnoses with only one doctor, Dr Pillemer, diagnosing brachial plexus injury.
(e)    The sensory loss referred to by Dr Pillemer in his first examination of Mr Chand close to four years ago were not noted in Associate Professor’s Miniter’s report dated 24 October 2022. The clinical records of Stanhope Medical Centre as at 27 March 2023 produced under Direction makes no reference to any recent sensory loss. The most recent neurology referral was in respect of Mr Chand’s Parkinsonism on 3 February 2023.
(f)    In light of the assessment proceedings on the papers, the Medical Assessor erred in failing to order additional investigations and/or records to address the inconsistencies in the evidence with respect to the extent (if any) of Mr Chand’s sensory loss and pain during rotation of the left shoulder.
(g)    Ground 2 – failing to compare measurements of both upper extremities (left and right shoulders).
(h)    On page 5 of the MAC, the Medical Assessor states:
“Dr Pillemer has assessed impairment according to a brachial plexus traction injury in which the sensory loss in the distribution of the brachial plexus is 100% UEI and he used Grade 4 sensory loss with 20% sensory deficit which resulted in 20% UEI. Dr Pillemer noted that because of Mr Chand’s severe Parkinson’s Disease that motor loss could not be assessed on that assessment and he used restricted range of movement of the left shoulder to give 15% UEI. Combining this with 20% UEI for the sensory loss was 32% EUI, which converts to 19% WPI. There is no deduction for a pre-existing condition. I feel that Dr Pillemer’s analogous’ use of the left shoulder motion is appropriate under the circumstances”.
(i)    The Medical Assessor has failed to adequately explain why Dr Pillemer’s “use of the left shoulder motion is appropriate under the circumstances” and has made a demonstrable error in this regard.
(j)    Associate Professor Miniter, in his report dated 24 October 2022, assesses Mr Chand’s functional impairment of both upper extremities and found a restriction in range of motion of both shoulders. The Medical Assessor made a demonstrable error in disregarding Associate Professor Miniter’s comparison of both upper extremities. Further, the Medical Assessor has made a demonstrable error in accepting Dr Pillemer’s opinion as Dr Pillemer failed to examine Mr Chand’s right upper extremity (shoulder).
(k)    Accordingly, given that Mr Chand was not complaining of any symptoms in his right shoulder and given that he had not injured his right shoulder, it was necessary to ascertain whether Mr Chand had any restriction of movement in his right shoulder to determine what extent any restriction of movement in the left shoulder is attributable to Mr Chand’s left shoulder injury and to determine what the impairment is from the injury.
(l)    For the foregoing reasons, the Medical Assessor has fallen into demonstrable error and the MAC should be revoked.
(m)     An in person assessment of Mr Chand would be appropriate, if possible, given the inconsistencies noted above, including, but not limited to: (a) the extent of (any) neurological anomaly, which is significant to whether or not Mr Chand has a brachial plexus injury (which the appellant disputes), and (b) range of movement, noting the Medical Assessor currently accepts the findings of Dr Pillemer taken during an examination on 9 August 2022, which differed to the observations of Associate Professor Miniter, recorded following an examination conducted on 20 October 2022. Both occurred over a year prior to the MAC.
The respondent’s submissions include the following:
(a)    ground 1 – diagnosis of brachial plexus traction injury. The appellant submits that the diagnosis of frozen shoulder by Associate Professor Miniter should be preferred to that of the Medical Assessor by reference to shortcomings in the evidence and it is for that reason that the Medical Assessor applied incorrect criteria. The Medical Assessor would only have applied incorrect criteria if his diagnosis of brachial plexus traction injury is demonstrably wrong. It does not appear to be submitted that there is no evidence that brachial plexus traction injury is the appropriate diagnosis rather that it is so clearly against the weight of the evidence that it is not a diagnosis available to the Medical Assessor and therefore a demonstrable error.
(b)    Consistent with the provision of section 1.47 of the Guidelines, the Medical Assessor referred to a diagnosis by Dr Pillemer, with whom he agreed, however he did not do so without referring to alternative diagnoses (or lack thereof) in other opinions expressed by medical practitioners, including Associate Professor Miniter, whose findings the Medical Assessor did not feel were sufficient to exclude his preferred diagnosis of brachial plexus traction injury.
(c)    The Medical Assessor has not simply relied upon the stand-alone evidence of Dr Pillemer. The Medical Assessor has considered all the evidence provided to him and, in the informed exercise of his clinical judgement he found that the weight of the medical evidence favoured his diagnosis as set out in his summary at page 3 of his report and in his reasons at page 4. More precisely the Medical Assessor considered the opinions of Dr Chia (in which he noted the diagnosis of frozen shoulder in February 2018, later excluded by Dr Pillemer), Dr Sundaraj in July 2018 ( who diagnosed Chronic Pain Syndrome), Associate Professor James Burrell in June 2019 (who was unable to decide between Chronic Regional Pain Syndrome or brachial plexus injury, but appears to have preferred either diagnosis to that of frozen shoulder), and Dr Stan Levy, (who noted that Dr Pillemer had excluded capsulitis and who considered excluding brachial plexus injury but did not do so).
(d)    Faced with a number of alternative diagnoses it was incumbent upon the Medical Assessor to use his clinical judgement and determine the diagnosis that provided him with the best method of providing a permanent impairment assessment.
(e)    There is sufficient evidence upon which the Medical Assessor could adopt the diagnosis of brachial plexus injury and he found nothing in Associate Professor Miniter’s reports to preclude that diagnosis.
(f)    Having determined the best available diagnosis, the MAC is without error.
(g)    Failing to order additional investigation – section 1.37 of the Guidelines provides as follow: “As a general principle, the assessor should not order additional radiographic or other investigations purely for the purpose of conducting an assessment of permanent impairment”.
(h)    In view of the injured worker’s medical condition, it is not obvious that further investigations would assist an Medical Assessor or Medical Appeal Panel to come to an alternative diagnosis.
(i)    The failure of a Medical Assessor to call for further information could only be considered a “demonstrable error” if it is clear that the Medical Assessor could not have come to the conclusion he did without such information, or that given such information he would have come to a different conclusion, and there is no evidence to support either proposition.
(j)    The appellant has not identified any evidence that the Medical Assessor could not be satisfied with his diagnosis on the evidence available to him such that he ought to have acted contrary to the above ‘general principle’.
(k)    Ground 2 – failing to compare measurements of both upper extremities (left and right shoulders). As the Medical Assessor was not able to examine the injured worker in person, due to the worker’s medical condition, he was obliged to rely on the measurements made by those practitioners who were able to examine the injured worker in person. The Medical Assessor repeated the findings made by Associate Professor Miniter, upon whose opinion the appellant relies, but did not consider those findings to be of assistance. While the Medical Assessor has not said so, and in the circumstances did not need to say so as his assessment is based on a brachial plexus diagnosis an examination of Associate Professor Miniter’s reports indicates that it only “behoves the observer to compare the two sides” if the permanent assessment is based on frozen shoulder diagnosis. An examination of Associate Professor Miniter’s reports indicates the internal fallacy of adopting that diagnosis as he reports that “frozen shoulder syndrome normally resolves” whereas, in Mr Chand’s case, the condition has clearly not resolved.
(l)    The Medical Assessor did not rely solely on the stand alone opinion of Dr Pillemer but, in the exercise of his clinical judgement he examined all the evidence before him and accepted the opinion of Dr Levy that whilst the investigations he carried out were not diagnostic of brachial plexus traction injury they were consistent with such a diagnosis and that the findings of Associate Professor Miniter were not inconsistent with that same diagnosis.
(m)     The Medical Assessor referred to all the reports under the heading “History Relating to Injury” at page 2 of MAC and noted the various diagnose of frozen shoulder. Chronic Regional Pain Syndrome, and possible brachial plexus injury. He preferred the diagnosis of brachial plexus which was a diagnosis that had not been rejected by either Associate Professor James Burrell, pain specialist or Dr Stan Levy, neurologist.
(n)    The Medical Assessor noted the reference to similar ranges of movement in Mr Chand’s shoulders by Associate Professor Miniter and did not consider the findings pertinent to his assessment.
(o)    The MAC ought to be confirmed.

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.

Using the incorrect criteria by application of WPI based on diagnosis of brachial plexus traction injury

The appellant submits that the Medical Assessor used incorrect criteria by application of WPI based on diagnosis of brachial plexus traction injury. The appellant argues that the Medical Assessor erred accepting the diagnosis of brachial plexus injury where this diagnosis appears only to be accepted by the stand-alone opinion of the Mr Chand’s qualified orthopaedic surgeon, Dr Pillemer.
The appellant argues that the Medical Assessor did not appear to give proper regards to the following evidence of treating doctors, namely, Dr Marcus Chia, Associate Professor Raj Sundaraj, Associate Professor James Burrell, MRI Brachial Plexus dated 7 November 2019, and Dr Stan Levy.
The Appeal Panel reviewed the evidence in this matter.
Under History relating to the injury, the Medical Assessor wrote:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: I note Mr Chand’s statement outlining that he was born on 24 February 1956 and at that stage he said that his health was good. At that stage he said that he was on medication for Type 2 diabetes. It outlines that he started working with Coles as a Duty Manager on 9 April 2012 and he injured his left shoulder on 10 August 2017 whilst lifting and moving a crate. Initially he had acupuncture and then a cortisone injection. In December 2017 he was referred to Dr Marcus Chia, Orthopaedic Surgeon, who diagnosed him with a frozen shoulder. He was referred to Dr Sundaraj, Pain Management Specialist, who concurred with this and felt that he also had a Chronic Pain Syndrome. It outlined a MRI of the shoulder in February 2018, demonstrating torn rotator cuff muscles and he had a cortisone injection. He had a considerable period of time off but then returned to selected duties on reduced hours.
Mr Chand’s statement was dated 17 July 2019 and is of little value with regard to his current condition.
Dr M Chia, Orthopaedic Surgeon, supplied treating doctor reports from 8 February 2018. He felt that Mr Chand’s frozen shoulder had been confirmed by MRI scanning.
Dr R Sundaraj, Pain Management Specialist, provided treating doctor reports from 13 July 2018. He diagnosed a Chronic Pain Syndrome.
Associate Professor James Burrell, Pain Specialist, provided a treating doctor report dated 5 June 2019. He noted the history of a shoulder injury and that there was altered sensation in Mr Chand’s left arm. He felt that there was a possibility that this may be a result of a Chronic Regional Pain Syndrome or a possible brachial plexus injury. Unfortunately, there are no follow-ups from Dr Burrell.
Dr Stan Levy, Neurologist, provided treating doctor reports from 22 May 2020. He noted the injury to the left shoulder with on-going significant weakness and pain. He noted that Mr Chand had seen Dr Pillemer, Orthopaedic Surgeon, and that Dr Pillemer had excluded the diagnosis of Adhesive Capsulitis but felt that Mr Chand needed further investigation to exclude a brachial plexus traction injury. It was at this time that Mr Chand was diagnosed with Parkinson’s Disease and he was put on medication by Dr Levy.
Dr Levy next saw Mr Chand on 28 January 2021. He noted that nerve conduction studies in the upper limbs revealed pictures of a sensory peripheral neuropathy and further EMG studies were planned. He noted his on-going Parkinson’s Disease.
Dr Levy saw Mr Chand again on 8 April 2021. He noted nerve conduction studies of the upper limbs in December 2020 outlined generalised sensory axonal peripheral neuropathy with a mild degree of carpal tunnel syndrome on the right. He noted further EMG studies on 22 March 2021 demonstrated chronic bilateral neurogenic changes and he outlined that these were not diagnostic of brachial neuritis but compatible with this diagnosis. He noted that the EMG and nerve conduction studies were not conclusive or diagnostic of a traction brachial plexus lesion.
Dr Levy also noted the shoulder injury was possibly explained by adhesive capsulitis but that a brachial plexus traction injury could not be excluded, although there was no evidence of this to that date. He noted a cervical spine MRI which was basically normal. This is the last report from Dr Levy.
• Present treatment: Mr Chand’s current treatment is centred around his Lewy Body
Dementia and Parkinsonian symptoms. There is no specific treatment for the left upper extremity”.

On page 4 of the MAC, the Medical Assessor wrote:
“Based on the evidence that has been presented the most likely diagnosis according to the specialists who have reviewed Mr Chand is that he in all likelihood did have a brachial plexus injury. The only doctor who has assessed him from this point of view is Dr Pillemer, Orthopaedic Surgeon, who has assessed 19% WPI.”
In commenting on other medical opinions and findings, the Medical Assessor wrote:
“Dr R Pillemer, Orthopaedic Surgeon, supplied medico-legal report dated 11 March 2019 in which he felt that Mr Chand may have had a brachial plexus traction injury but that he needed further assessment by a neurologist. He noted restriction of range of movement of Mr Chand’s left shoulder but a full range of movement on the right.
Dr Pillemer presented a further medico-legal report dated 10 February 2023. He noted that Dr Levy had outlined chronic bilateral neurogenic changes noted on EMG on 22 March 2021 and these findings were not diagnostic of brachial neuritis but compatible with this diagnosis. Dr Pillemer felt that this justified his assessment of impairment as a brachial plexus traction injury and he felt that there was sensory loss consistent with a brachial plexus injury and some restriction of range of movement, although he found a very satisfactory range of right shoulder movement. Dr Pillemer assessed impairment according to a brachial plexus traction injury in which the sensory loss in the distribution of the brachial plexus was 100% upper extremity impairment and he used Grade 4 sensory loss with 20% sensory deficit which resulted in 20% upper extremity impairment.
He noted that because of Mr Chand’s severe Parkinson’s Disease that motor loss could not be assessed on that assessment and he used restricted range of movement of the left shoulder to give 15% UEI. Combining this with 20% for the sensory loss was 32% UEI, which equated to 19% WPI. There was no deduction for a pre-existing condition.
Dr P Miniter, Orthopaedic Surgeon, supplied a medico-legal report dated 24 October 2022 and he had previously supplied a report dated 10 June 2018. He noted Dr Levy’s EMG studies and his opinion and felt that Mr Chand’s condition was not diagnostic of a brachial plexus traction injury. He thus used restriction of range of movement of the shoulders. He noted that the range of movement of both shoulders were similar and subsequently he did not feel that there was any impairment as he subtracted the contralateral shoulder range of movement from that of the injured shoulder. In his examination findings he outlined no overt features of neurological abnormality with no mention of any distribution of sensory loss. Dr Miniter’s documented examination findings would not appear to be sufficient to confirm or exclude the diagnosis of a brachial plexus traction injury”.
Associate Professor Miniter, in his report dated 10 June 2018, made a diagnosis of frozen shoulder syndrome and took the following history:
“Approximately 10 months ago, whilst at work, he noted the onset of discomfort in the left shoulder. As far as I could determine from the history that was given to me, he did not specifically injure his shoulder. He simply noted that the shoulder was uncomfortable and did so after some heavy lifting. It transpired that, over the succeeding weeks, the left shoulder became extremely painful. He was reviewed by his general practitioner and sent to see Dr Marcus Chia. Dr Chia made the diagnosis of frozen shoulder syndrome clinically and sent him for an MRI scan to exclude more serious pathology. During this time, he did not receive physiotherapy, and appropriate treatment algorithm”.
Associate Professor Miniter, in his report dated 24 October 2022, stated that the history given to him would not be consistent with a brachial plexus traction injury. On examination, he found no overt features of neurological anomaly.
Dr Pillemer, in a report dated 11 March 2019, took the following history:
“Mr Chand's history was confirmed of having sustained his injury on 10 August 2017, now some 1 1/2 years ago, when he was loading milk crates from pallets onto shelves above shoulder height, and moving 50 to 60 crates each night. Each crate contained six mild containers. He developed pain in his left arm and he has had significant ongoing problems with his left arm since then”.
On examination, Dr Pillemer notes that Mr Chand has a good range of external rotation of his left shoulder which negates the diagnosis of adhesive capsulitis (frozen shoulder). He reported that reflexes are present and equal and satisfactory grip strength was present bilaterally. Dr Pillemer wrote:
“Importantly Mr Chand has fairly diffuse hypoaesthesia to pinprick of his left upper limb with distinct cut-off points over the anterior and posterior chest walls. This sensory loss is typically in the distribution of the brachia! plexus.
In addition and importantly, percussion in the supraclavicular region on the left side reproduces symptoms down his left arm with what he describes as 'a current ' into his left thumb. This is distinct and present with repeated testing”.
Under “Diagnosis”, Dr Pillemer noted that Mr Chand sustained a traction injury to his left upper extremity on 10 August 2017, with significant ongoing symptoms in relation to his left arm. He wrote:”
“As far as diagnosis is concerned, in my opinion Mr Chand has had a traction injury to his brachial plexus on the left side as evidenced by the sensory loss and particularly by the reproduction of symptoms with percussion in the supraclavicular region. It is also my opinion that the diagnosis of adhesive capsulitis (frozen shoulder) can be excluded noting that he has virtually full pain-free external rotation of his left shoulder”.
On examination, Dr Pillemer wrote:
“Observation shows that his left shoulder region has ‘dropped’ and is at a lower level than the right side and there is also some muscle wasting around the shoulder girdle.
Mr Chand has a satisfactory range of cervical movement, once again carried out slowly and carefully but with no real discomfort and a very satisfactory range of right shoulder movement. He again shows restriction of left shoulder movement.
Mr Chand once again shows hypoesthesia to pinprick of his left upper limb with clear cut-off points over the anterior and posterior chest walls in the region of the anterior and posterior axial lines. Once again, his sensory loss is typically in the distribution of the brachial plexus report to you of 11 March 2019.
As far as diagnosis is concerned, in my opinion, Mr Chand has had a traction injury of his brachial plexus on the left side as evidenced by the sensory loss, in a typical brachial plexus distribution, but there was no positive Tinel’s sign today.
As noted, nerve conduction studies do show fairly generalised neurological involvement of his left upper extremity”.
Dr Pillemer, in a report dated 10 February 2023, wrote:
“As noted, I do not agree with Dr Miniter’s report, and I would suggest that the key difference in our reports is that Dr Miniter would seem to have incorrectly quoted the findings of the neurologist who carried out nerve conduction studies on Mr Chand in December 2020. As noted, the neurologist had suggested that the findings ‘…are in keeping with a generalised sensory axonal peripheral neuropathy…’ He went on very specifically to note that ‘…these findings are not diagnostic of brachial neuritis but are compatible with this diagnosis’.
As you will note from Dr Miniter’s report of 24 October 2022 when referring to the nerve conductions, he has simply stated ‘these suggested a subtle sensory neuropathy, but did not suggest any brachial plexus traction injury’. In my opinion, the emphasis here is incorrect when referring to the actual reports of the nerve conduction studies.
…
As far as a diagnosis is concerned, Dr Miniter is suggesting that Mr Chand suffered from adhesive capsulitis (frozen shoulder) of the left shoulder and that ‘the matter is all but completely resolved. He has a subtle loss of left shoulder movement in comparison to the right’.
As noted, Dr Miniter seems to have ignored the clinical findings with regard to the sensory loss in a typical brachial plexus distribution”.
In a report dated 8 February 2018, Dr Marcus Chia, treating orthopaedic surgeon notes that Mr Chand’s “presentation is typical of a frozen shoulder”. In his report dated 22 February 2018, Dr Chia confirms the diagnosis of frozen shoulder.
In a report dated 13 July 2018, Associate Professor Raj Sundaraj, treating pain medicine physician, notes:
“Imaging investigations were required and from the reports I see he has sustained a tear of the supraspinatus rotator cuff muscle. The sub-scapularis tendinosis evident. Overall, there appears to be ‘capsulitis’ affecting the entire left shoulder joint.”
In a report dated 3 June 2019, Associate Professor James Burrell, treating neurologist, notes:
“…it does appear that he has developed a number of secondary symptoms including frozen shoulder and some features to suggest chronic regional pain syndrome (ie the altered sensation in the left upper limb with no definite dermatomal or peripheral nerve distribution). There is no definite evidence of brachial plexus injury, and given Michael’s description of the events leading up to his symptoms I think a brachial plexus injury would be very unlikely. As such I have not arranged a nerve conduction study/EMG at this time because I think it would be normal.”
In a report dated 22 May 2020, Dr Stan Levy, treating neurologist, notes that Mr Chand sustained a traction injury to his left shoulder when he tried to catch one of the milk crates which fell from the pallet. Dr Levy wrote:
“Since then he has experienced significant weakness and pain in his left shoulder and left upper limb.
Mr Chand has been assessed by Dr Roger Pillemer, orthopaedic surgeon, who diagnosed him with adhesive capsulitis and recommended EMG and nerve conduction study to exclude a brachial plexus traction injury. Dr Pillemer noted that Mr Chand has restricted motor function because of the injury to his left shoulder and has difficulty with dressing and other motor functions such as doing up his buttons.
Thus, Mr Chand sustained an injury at work in 2017 resulting in a frozen left shoulder.… As requested by Dr Pillemer, Michael will be referred for EMG studies at Campbelltown Hospital to exclude any evidence of a traction brachia! plexus neuropathy”.
Dr Levy considered Mr Chand’s “Parkinsonian condition may restrict his ability to function in his occupation at Coles in addition to the restrictions in his motor function form his left shoulder injury.”
The Appeal Panel was satisfied that the Medical Assessor considered all of the evidence in this matter even if he did not specifically refer to some reports or sections of other reports. The Appeal Panel noted that the Medical Assessor considered the opinions of Dr Chia, who diagnosed frozen shoulder in February 2018, Dr Sundaraj, who diagnosed Chronic Pain Syndrome in July 2018, Associate Professor James Burrell, who was unable to decide between Chronic Regional Pain Syndrome or brachial plexus injury, but did not appear to diagnose frozen shoulder in June 2019, and Dr Stan Levy, who noted that Dr Pillemer had excluded capsulitis and recommended nerve conduction studies to exclude the possibility of brachial plexus injury. It is significant that the Dr Pillemer had excluded the diagnosis of frozen shoulder based on his examination findings. Associate Professor Miniter in his report of 24 October 2022 expressed the view that the onset of adhesive capsulitis (frozen shoulder was unrelated to the work injury on 10 August 2017 and had “all but completely resolved” with only a very subtle loss of left shoulder movement in comparison to the right.
Dr Pillemer, in a report dated 10 February 2023, stated that he did not agree with Associate Professor Miniter’s report, and suggested that the key difference in their reports was that Associate Professor Miniter seemed to have incorrectly quoted the findings of the neurologist who carried out nerve conduction studies on Mr Chand in December 2020. Dr Pillemer noted that the neurologist had suggested that the findings “…are in keeping with a generalised sensory axonal peripheral neuropathy…” and went to specifically note that “…these findings are not diagnostic of brachial neuritis but are compatible with this diagnosis”.
The appellant submits, in effect, that the Medical Assessor should have preferred the diagnosis made by Associate Professor Miniter to that made by Dr Pillemer.
On balance, the Appeal Panel considers that the diagnosis of brachial plexus traction injury was open to the Medical Assessor. His diagnosis was supported by the opinion expressed by Dr Pillemer and was not ruled out by the EMG or nerve conduction studies. Dr Pillemer had examined Mr Chand on two occasions and provided detailed and thorough reports. Dr Pillemer had noted that Mr Chand had sustained a traction injury to the brachial plexus on the left side. The mechanism of such an injury was consistent with the history obtained by Dr Levy that Mr Chand sustained a traction injury to his left shoulder. Dr Levy had outlined chronic bilateral neurogenic changes noted on EMG on 22 March 2021 and while these findings were not diagnostic of brachial neuritis, they were compatible with this diagnosis. Associate Professor James Burrell noted the history of a shoulder injury and altered sensation in Mr Chand’s left arm and felt that there was a possibility that this may be a result of a Chronic Regional Pain Syndrome or a possible brachial plexus injury. The Appeal Panel is not persuaded that a diagnosis of a brachial plexus traction injury was so clearly against the weight of the evidence that it is not a diagnosis available to the Medical Assessor and therefore a demonstrable error. Further, the Medical Assessor would only have applied incorrect criteria if his diagnosis of brachial plexus traction injury is demonstrably wrong.
The Appeal Panel considers that this was an extremely complex matter in which a number of alternative diagnoses had been made by treating doctors at different times since the injury. However, the Appeal Panel is satisfied that the Medical Assessor had reviewed all the evidence and used his clinical judgement to make a diagnosis. The Appeal Panel finds no demonstrable error in the MAC and is satisfied that the assessment was not made on the basis of incorrect criteria.

Failing to order additional investigations

Section 324 (1) (b) of the 1988 Act empowers a Medical Assessor to call for further investigations or “other information as the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her.”
At Part 1.37 – 1.39 under the heading “Ordering of additional investigations”, the Guidelines provide:
“1.37 As a general principle, the assessor should not order additional radiographic or other investigations purely for the purpose of conducting an assessment of permanent impairment.
1.38 However, if the investigations previously undertaken are not as required by the Guidelines, or are inadequate for a proper assessment to be made, the medical assessor should consider the value of proceeding with the evaluation of permanent impairment without adequate investigations.
1.39 In circumstances where the assessor considers that further investigation is essential for a comprehensive evaluation to be undertaken, and deferral of the evaluation would considerably inconvenience the claimant (eg when the claimant has travelled from a country region specifically for the assessment), the assessor may proceed to order the appropriate investigations provided that there is no undue risk to the claimant. The approval of the referring body for the additional investigation will be required to ensure that the costs of the test are met promptly”.
At Part 1.43 – 1.44 the Guidelines provide:
“1.43 On referral, the medical assessor should be provided with all relevant medical and allied health information, include results of all clinical investigations related to the injury/condition in question.
1.44 Most importantly, assessors must have available to them all information about the onset, subsequent treatment, relevant diagnostic tests and functional assessments of the person claiming a permanent impairment. The absence of required information could result in an assessment being discontinued or deferred...”
The appellant submits that in light of the assessment proceedings on the papers, the Medical Assessor erred in failing to order additional investigations and/or records to address the inconsistencies in the evidence with respect to the extent (if any) of Mr Chand’s sensory loss and pain during rotation of the left shoulder.
The appellant refers to Dr Pillemer’s exclusion of the diagnosis of adhesive capsulitis (frozen shoulder) on the basis Mr Chand has virtually full pain-free rotation of his left shoulder. However, the Appeal Panel notes that Dr Pillemer, in fact, excluded the diagnosis of frozen shoulder on the basis of Mr Chand having a good range of external rotation of the left shoulder which negated the diagnosis of adhesive capsulitis (frozen shoulder).
The Appeal Panel notes that the appellant did not identify what other additional investigations and/or records should have been ordered by the Medical Assessor. The Appeal Panel considers that the appellant had an opportunity to request any records before the matter was referred to the Medical Assessor if the appellant had considered this necessary. The Appeal Panel also notes that the Guidelines provide that as a general principle, the Medical Assessor should not order additional radiographic or other investigations purely for the purpose of conducting an assessment of permanent impairment. The Appeal Panel cannot identify any additional investigations or records that should have been ordered by the Medical Assessor.
Investigations previously undertaken included two sets of nerve conduction and EMG studies on 8 December 2020 and 22 March 2021. Reports were obtained from the treating neurologists and other treating specialists.
The appellant has not identified any evidence that support the proposition that the Medical Assessor could not have come to the conclusion he did without such additional information, or that given such information he would have come to a different conclusion. The Appeal Panel is not persuaded that the Medical Assessor erred in failing to order additional investigations and/or records or made the assessment on the basis of incorrect criteria.

Ground 2 – failing to compare measurements of both upper extremities (left and right shoulders).

The appellant submits that the Medical Assessor has failed to adequately explain why Dr Pillemer’s “use of the left shoulder motion is appropriate under the circumstances” and has made a demonstrable error in this regard. The appellant submits that the Medical Assessor has made a demonstrable error in disregarding the above comparison of both upper extremities. Further, Medical Assessor has made a demonstrable error in accepting Dr Pillemer’s opinion as Dr Pillemer failed to examine Mr Chand’s right upper extremity (right shoulder).
Paragraph 2.20 of the Guidelines relevantly provides:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
Paragraph 16.4a of AMA 5 also directs that “both extremities should be compared”.
On page 5 of the MAC, the Medical Assessor states:
“Dr Pillemer has assessed impairment according to a brachial plexus traction injury in which the sensory loss in the distribution of the brachial plexus is 100% UEI and he used Grade 4 sensory loss with 20% sensory deficit which resulted in 20% UEI. Dr Pillemer noted that because of Mr Chand’s severe Parkinson’s Disease that motor loss could not be assessed on that assessment and he used restricted range of movement of the left shoulder to give 15% UEI. Combining this with 20% UEI for the sensory loss was 32% EUI, which converts to 19% WPI. There is no deduction for a pre-existing condition. I feel that Dr Pillemer’s analogous’ use of the left shoulder motion is appropriate under the circumstances.”

Associate Professor Miniter, in his report dated 24 October 2022, assessed Mr Chand’s functional impairment of both upper extremities as follows:
“There is a restriction in range of motion of both shoulders and I note that the restriction of range of motion is barely different from one side to another. The range of forward elevation on the right-hand side is to 110° and on the left to 100°.The range of abduction is to 100° on the left and 115° on the right. The range of external rotation is very subtly reduced on the left-hand side by less than 5° and the range of internal rotation is also subtly reduced by about 10° in comparison to the contralateral side. You will note that it behoves the observer to compare the two sides and his overall Parkinsonian features and age would suggest that there is very little difference in the range of motion between the two extremities.”
Dr Pillemer, in his report dated 11 March 2019, noted on examination that Mr Chand had a full range of right shoulder movement. In his report of 10 August 2022, Dr Pillemer noted on examination that Mr Chand had a very satisfactory range of right shoulder movements. The Appeal Panel infers from that finding that Mr Chand had a normal range of movement in the right shoulder on both occasions when examined by Dr Pillemer.
The Medical Assessor proceeded to make an assessment on the basis the same diagnosis as made by Dr Pillemer. The Medical Assessor was faced with the situation where the two IMEs had quite different examination findings. In circumstances where the assessment was to be made on the papers, it was open to the Medical Assessor to accept the assessment of one IME over the assessment of the other. The Medical Assessor made the same diagnosis as Dr Pillemer and did not accept the diagnosis made by Associate Professor Miniter. As noted above, the Appeal Panel considered that Dr Pillemer’s reports were detailed and thorough. The Medical Assessor referred to the findings made by Associate Professor Miniter, upon whose opinion the appellant relies, but did not consider those findings to be of assistance in making the assessment.
In all the circumstances, the Appeal Panel is not persuaded that the Medical Assessor erred in accepting Dr Pillemer’s opinion in respect of the right shoulder function. The Appeal Panel does not accept that the Medical Assessor made the assessment on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 January 2024 should be confirmed.

[2024] NSWPICMP 241

24 April 2024