Cook v Southern Riverina Labour Contracting Pty Ltd
[2025] NSWPICMP 140
•4 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cook v Southern Riverina Labour Contracting Pty Ltd [2025] NSWPICMP 140 |
| APPELLANT: | Robyn Cook |
| RESPONDENT: | Southern Riverina Labour Contracting Pty Ltd |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 4 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant appealed against assessment on the basis that the Medical Assessor (MA) had applied incorrect criteria and that the Medical Assessment Certificate (MAC) contained demonstrable error; the appellant submitted that the MA should have assessed her right upper extremity (right shoulder) using both range of motion and Table 16-27 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) because the appellant had undergone right shoulder replacement; Held – MA did not apply incorrect criteria and the MAC did not contain demonstrable error because the appellant has not undergone right shoulder replacement but right shoulder reconstruction; the MA did not err in basing his assessment of the appellant’s right shoulder on range of motion only; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 October 2024, Robyn Cook lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 October 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 having been lodged out of time, the delegate extended the time to appeal, pursuant to s 327(5) of the 1998 Act.
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
The appellant sustained an injury to her right shoulder on 16 November 2017, when she tried to avoid a collision with a trolley. The appellant subsequently developed a consequential condition of her left shoulder.
On 22 February 2024, the appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission).
The appellant claimed to have sustained injury to her left upper extremity (left shoulder and left elbow); consequential condition of her right upper extremity (right shoulder and right elbow), and TEMSKI/scarring, as a result of the injury on 16 November 2017.
The respondent lodged its Reply on 26 February 2024.
On 6 March 2024, Member Whiffin issued Consent Orders. The matter was remitted to the President of the Commission for referral to a Medical Assessor. The body systems/parts to be assessed were the appellant’s right upper extremity (shoulder); left upper extremity (shoulder); and scarring (TEMSKI).
The medical dispute was referred to Medical Assessor Honeyman on 7 March 2024, the referral being amended on 5 April 2024, 3 May 2024, and 26 June 2024.
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 appellant to undergo a further medical examination because there was sufficient information in the papers to enable the Appeal Panel to make its own assessment.
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 assessment 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:
(a) there is a demonstrable error in that the Medical Assessor based his assessment findings only on range of motion (ROM). Dr (Frank) Machart considered that the correct method of assessment of the appellant’s right shoulder was both the ROM method and the replacement tables (Table 16-27 of AMA 5). (Emphasis in original).
(b) the appellant underwent a right shoulder rotator cuff reconstruction after a failed rotator cuff repair
(c) the Medical Assessor noted that the appellant’s right shoulder was still problematic, and a third procedure was indicated, but the appellant did not wish to undergo it
(d) the Medical Assessor failed to correctly apply the Guidelines, and in doing so based his assessment on incorrect criteria
(e) had the Medical Assessor not fallen into error, this was likely to have resulted in a material difference in the assessment of impairment, from “not greater than 10% WPI” to “greater than 10% WPI”
In reply, the respondent submits that:
(a) a Medical Assessor can consider other medical opinions. However, he is not bound by them. A Medical Assessor is entitled to rely upon his own clinical findings on the day of the examination – Merza v Registrar of the Workers Compensation Commission & Anor[1]
(b) Dr Machart was not provided with a copy of the second operation report and erroneously presumed the appellant had undergone shoulder replacement surgery (Emphasis in original)
(c) the operation report confirms the appellant underwent a superior capsular reconstruction of the right shoulder. Replacement surgery, also known as arthroplasty, is separate and distinct from reconstruction surgery
(d) there is no evidence that the appellant has undergone a right shoulder replacement. It is therefore not appropriate for the appellant to have been assessed under Table 16-27
(e) unlike Dr Machart, both Dr Honeyman and Dr (Philip) Frawley had the benefit of reviewing the relevant operation report, and they did not consider that permanent impairment of the right shoulder ought to be assessed under Table 16-27
(f) the Medical Assessor did not make a demonstrable error, given there was no reason for permanent impairment to be assessed under Table 16-27. It follows that the appellant’s submissions regarding whether the Medical Assessor’s assessment was based on incorrect criteria cannot be made out.
(g) there is no basis to support the appellant’s contention that the assessment was made on the basis of incorrect criteria, or that the MAC contains a demonstrable error
[1] [2006] NSWSC 939.
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[2] 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 judgment.
[2] [2006] NSWCA 284.
Medical assessment certificate
The parts of the MAC issued by the Medical Assessor that are relevant to the appeal are set out below.
Under “history relating to the injury”, at p 2 of the MAC, the Medical Assessor recorded:
“The history of accident on 16/11/2017 was that she was working in chicken sheds picking up eggs. There is a trolley with a rail to collect these eggs. The trolley was about to hit her when she suddenly turned to avoid being hit. She felt a tear in the right shoulder…
…
About 6 months later because she was not using her right shoulder, her left shoulder started to give her problems and she sees the left shoulder injury as consequential.
Subsequently, she has had 2 attempts to repair the second with a graft taken. This has not greatly helped. She refused a third attempt as she found the surgery and subsequent care painful.”
Under “details and dates of special investigations”, at p 3 of the MAC, the Medical Assessor recorded:
“…
She underwent right rotator cuff repair on 15 November 2018, with Dr Ian Critchley. He noted the existing degenerative changes to the tendon and referred on to a second shoulder specialist, Dr Barmare. He attempted a second repair, which did not hold, and a third was offered, but refused.
Dr Marchart has provided the only IME and assessment of WPI, on 23/1/2023.”
Under the heading “summary of injuries and diagnoses”, at p 4 of the MAC, the Medical Assessor has recorded:
“Primary injury to rotator cuff Right shoulder acute injury on degenerative changes. Consequential injury to degenerative changes to left shoulder.”
Under the heading “the facts on which the assessment is based”, at p 5 of the MAC, the Medical Assessor has recorded:
“A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.”
Under the heading “reasons for assessment”, at p 5 of the MAC, the Medical Assessor has recorded:
“a. My opinion and assessment of whole person impairment:
The shoulders are assessed by loss of ROM. The right shoulder has 5% WPI, the left 4% WPI.
Scars are assessed by TEMSKI p 74 T 14.1 NSW guides. The scars are thin, white in contrast to surroundings skin. No treatment is required, in my opinion the best fit is 1% WPI.
In making that assessment I have taken account of the following matters:
Review of the material provided and a detailed examination of the claimant.
b. An explanation of my calculations (if applicable):
AMA 5 REFS
MOVEMENT
RIGHT
% RIGHT UEI
LEFT
% LEFT UEI
P 476
F 16-40
Flexion
120°
4
125°
4
29. Extension
30. 40°
31. 1
32. 50°
33. 0
P 477
F 16-43
Abduction
120°
3
130°
2
34. Adduction
40°
0
40°
0
P 479
F 16-46
Internal Rotation
80°
0
80°
0
35. External rotation
80°
0
80°
0
Subtotals
8
6
UEI is converted to WPI using T16-3 p 439. The right has 5% WPI, the left 4% WPI.
Worksheet/actual calculations attached?
No.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
Dr Marchart finds a similar injury sequence. His range of movement measured differ on my findings. He has commented on existing degenerative changes but has not made a deduction.
d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.”
Under the heading “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, at p 5 of the MAC, the Medical Assessor has recorded:
“a) In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) She has long standing degenerative changes to both shoulders, as evidenced on MRI findings and at surgery, and by the nature of the injuries, I have applied 1/10 deduction.”
The Medical Assessor issued the following MAC:
Body Part or system
Date of injury
Chapter, page and number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Right upper extremity (shoulder)
16/11/2017
P 476 T16-40
P 477 T16-43
P 479 T16-46
5
1/10
5
Left upper extremity (shoulder)
16/11/2017
4
1/10
4
Scarring – TEMSKI
16/11/2017
P 74 T14.1
1
0
1
Total % WPI (the Combined Table values of all sub-totals)
10%
Appellant’s evidence
The appellant made a statement dated 7 August 2023.
The appellant initially had physiotherapy and cortisone injections.
The appellant underwent right rotator cuff repair, performed by Dr Critchley, on
15 November 2018.On 15 December 2020, the appellant underwent a right shoulder reconstruction, due to a re-tear in her shoulder. The surgery was performed by Dr Barmare.
Medical evidence
Dr Ian Critchley – orthopaedic surgeon
Dr Critchley’s operation report, dated 15 November 2018, records that the surgery was “Repair and decompression of right rotator cuff and biceps tenodesis.”
Dr Arshad Barmare – orthopaedic surgeon
Dr Barmare’s operation report, dated 15 December 2020, records the following:
“Procedure: Right shoulder arthroscopy + Capsular release synovectomy + Bursectomy + Rotator cuff repair (Superior Capsular reconstruction) (RIGHT).”
Dr Philip Frawley – orthopaedic surgeon
Dr Frawley reported to Employers Mutual NSW Limited on 16 August 2021.
The appellant told Dr Frawley she underwent surgery at the hands of Dr Critchley in March 2018, but was “not sure what was done.” She felt she did not make a lot of progress.
In December 2020, Dr Barmare operated on the appellant, but she was again not sure what was done.
Dr Frawley referred to the operation report dated 15 December 2020. He noted it indicated that the appellant’s right shoulder was manipulated under anaesthetic and a superior capsular reconstruction was performed, using graft harvested from the right thigh, because the supraspinatus tendon was irreparable.
Dr Frawley opined that the appellant had not reached maximum medical improvement, so it was not appropriate to assess WPI.
Dr Frawley again reported on 31 August 2023.
Dr Frawley assessed the appellant’s WPI, using ROM, as 8% as a result of injury to the right shoulder, which was combined with an assessment of 1% for scarring, so the total WPI was 9%.
Dr Frawley did not assess the appellant with any impairment of her left shoulder.
Dr Frank Machart – orthopaedic surgeon
Dr Machart reported to the appellant’s solicitors on 23 January 2023.
The appellant told Dr Machart that Dr Critchley performed what she recalled as a “tendon transplant” in her right shoulder, with no benefit.
The appellant was then referred to Dr Barmare, who performed another operation. It was not clear what was done.
Dr Machart recorded that about two years ago the appellant had developed pain in her left shoulder, which was apparently “overuse”. The appellant had not had surgery on her left shoulder.
Dr Machart had been provided with Dr Critchley’s operation report, but not that of
Dr Barmare. He noted that Dr Critchley had “commented on shoulder replacement surgery, presumably reverse shoulder replacement which is commonly conducted for difficult or impossible to repair rotator cuff disruptions.”Dr Machart opined that there was unlikely to be much change in the appellant’s condition in the foreseeable future. “In the longer term, and if she did have a reverse shoulder replacement now at a relatively young age, there is potential for this implant to fail 10 or 15 years down the track”, in which case reconstructive surgery may be required.
Dr Machart assessed the appellant’s right shoulder using ROM and shoulder replacement rates, as per AMA 5, Table 16-27; and assessed the appellant’s left shoulder using ROM only. He also assessed the appellant’s elbows (the assessment of which was not ultimately referred to the Medical Assessor).
Incorrect criteria
The appellant bases this ground of appeal on her assertion that the Medical Assessor erred in basing his assessment only on ROM, and not also applying the replacement table, that is Table 16-27 of AMA 5.
It is obvious from a review of Dr Barmare’s operation report that the appellant has not undergone right shoulder replacement surgery. Dr Machart has confirmed in his report that he was not provided with a copy of the operation report. Both Dr Frawley and the Medical Assessor were provided with the report.
The Medical Assessor did not apply incorrect criteria in a case where the appellant has not undergone the surgery to which Table 16-27 applies. Shoulder reconstruction surgery is not shoulder replacement surgery.
The correct method of assessment of impairment of the appellant’s right shoulder is ROM, which the Medical Assessor applied, and about which no complaint is made by the appellant.
This ground of appeal fails.
Demonstrable error
The above analysis also applies to this ground of appeal.
It cannot be a demonstrable error for the Medical Assessor to apply the correct method of assessment, that is, ROM. The appellant not having undergone shoulder replacement surgery, Table 16-27 does not apply, and the Medical Assessor therefore did not err in failing to apply it.
This ground of appeal fails.
For these reasons, the Appeal Panel has determined that the MAC issued on
2 October 2024 should be confirmed.
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