Cormack v Alpha Personnel Pty Ltd
[2025] NSWPICMP 461
•27 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cormack v Alpha Personnel Pty Ltd [2025] NSWPICMP 461 |
| APPELLANT: | Cormack |
| RESPONDENT: | Alpha Personnel Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Dr Roger Pillemer |
| MEDICAL ASSESSOR: | Dr Gregory McGroder |
| DATE OF DECISION: | 27 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the left upper extremity and cervical spine; challenged on appeal by the worker based on inadequacy of examination findings and reasons, and application of incorrect criteria; Held – Appeal Panel found error and considered a re-examination was necessary in the circumstances; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 April 2025, the worker Nicole McCormack (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
10 March 2025.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.
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).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not seek that she be re-examined by a Medical Assessor who is also a member of the Appeal panel. However, as a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.
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.
Further medical examination
Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 23 June 2025 and reported to the Appeal Panel.
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.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 1 November 2017
· Body parts/systems referred: Cervical spine
Left upper extremity
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a certificate as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Left upper extremity | 01/11/2017 | P 476 16-40 P 477 16-43 P 479 16-46 | 5% | 0 | 5% | ||
| Cervical spine | 01/11/2017 | P 392 15-5 | 0% | 0 | 0% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 5% | ||||||
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria because he used the wrong criteria and the certificate is wrong in a material respect.
The respondent employer Alpha Personnel Pty Ltd (the respondent) submitted that the Medical Assessor did not make assessments on the basis of incorrect criteria, the history taking is adequate and discloses no error and the MAC should accordingly be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker. The MAC must be read as a whole.
The Medical Assessor recorded a history which included a reporting of symptoms as follows:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On the date of injury, Ms Cormack was working as a manager at a car hire outlet. She went to the wash bay to try and get some cars cleared for rental. She was pulling on a pressure hose for car cleaning, which was caught beneath one of the tyres, wrenching her left shoulder. She continued to work throughout the day. The next day, she went to Bali with her daughter and when she got there, she was unable to dress herself or comb her hair due to pain in the shoulder. When she returned, she presented to her general practitioner, who immediately placed her in a sling. She was referred for x-rays and physiotherapy. After twelve months and a steroid injection, she was eventually referred for an MRI. She was referred to Dr Ryan, Orthopaedic Surgeon. Ms Cormack tells me she underwent three surgical procedures on her left shoulder, although there is limited information in the documentation supplied with respect to this. There is an operation report from 27 April 2021 for left arthroscopy, synovectomy and coracoid decompression. Another operation report from 29 April 2020, a preoperative diagnosis is recalcitrant capsulitis posteriorly, post SLAP surgery left shoulder.
· Present treatment:
Ms Cormack is not currently engaged in a rehabilitation program for her shoulder. She intermittently takes Nurofen.
· Present symptoms:
She has painful restricted movement in her shoulder. She episodically has “spasms” in her biceps anteriorly. When this occurs, she gets tightening up the lateral aspect of her neck.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Cormack denies any previous injuries to her shoulder.
· General health:
Ms Cormack has asthma and depression. Her medications include sertraline. She has no allergies.
· Work history including previous work history if relevant:
Nil relevant.
· Social activities/ADL:
Ms Cormack previously worked and enjoyed training and fitness. She originates from a property and enjoyed motorcycle riding and shooting, which she is no longer able to do.”
The Medical Assessor recorded his findings on physical examination as follows:
“On examination she was a well looking woman in no obvious distress. There were well healed arthroscopic portals around the left shoulder. Range of motion in the shoulders was assessed as follows:
MOVEMENT
LEFT
RIGHT
Flexion
130°
180°
Extension
20°
50°
Abduction
90°
180°
Adduction
20°
20°
Internal rotation
80°
80°
External rotation
80°
80°
Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Lower limb reflexes were symmetrical with no clonus. Upper limb reflexes similarly were symmetrical with a negative Hoffman test. Peripheral power was intact. There was no intrinsic fatigue or ulnar escape. Ms Cormack demonstrated a symmetrical range of motion around 75% of expected range. There was no asymmetry of movement or dysmetria.”
In relation to the special investigations, the Medical Assessor recorded as follows:
“I was able to review no imaging related to the injury today. In the documentation supplied, I note the following reports:
Ultrasound left shoulder, 23 March 2016: ‘Bursitis seen but no frozen shoulder, rotator cuff looks intact. There is minor calcification of 3mm of the supraspinatus, it looks chronic. There is fluid in the biceps tendon sheath. AC joint unremarkable. Long head of biceps tendon intact.’
I note a report of an MRI from the left shoulder dated 17 July 2018. The indication is ‘calcific tendinosis and bursitis causing impingement’. Findings of the MRI are:
1. ‘Mild to moderate AC arthropathy.
2. Tendinosis involving the anterior third of the supraspinatus, possible small intrasubstance insertional tear involving the mid-supraspinatus.
3. Mild to moderate subacromial subdeltoid bursitis.
4. Subtle high focal signal in the superior labrum raises the possibility of a small superior labral tear’.”
The Medical Assessor summarised the injury and diagnosis as follows:
“ ● Summary of injuries and diagnoses:
Ms Cormack sustained an injury to her left shoulder. She has had three surgical procedures but unfortunately has ongoing pain and stiffness in her shoulder. She is also getting pain in the lateral aspect of her neck.
· Consistency of presentation
Ms Cormack was cooperative throughout the assessment.”
The Medical Assessor explained his assessment as follows:
“Range of motion in the shoulders is assessed according to AMA 5 page 476 16.40, 477 16.43 and 479 16.46. 9% upper extremity impairment was assessed on the basis of asymmetrical range of motion. According to AMA 5 page 439 16.3, this converts to 5% whole person impairment.
The cervical spine is assessed according to AMA 5 page 392 15.5 as DRE Cervical Category I. This is on the basis of there being no significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment and no documented alteration in structural integrity.”
The Medical Assessor made brief comment on the other medical opinions before him as follows:
“With respect to the report by Dr Rowe dated 10 July 2024, I found a slightly greater range of motion in the shoulder and have assessed 5% rather than 7% whole person impairment for it.
I did not detect asymmetrical range of motion in the cervical spine and hence, have assessed the cervical spine as DRE Cervical Category I rather than II.
With respect to the report by Dr Gehr dated 28 March 2024, again I found a greater range of motion and have assessed lesser impairment for the left shoulder. For the reasons given above, I assess the cervical spine as DRE Category I rather than II.”
While the MAC must be read as a whole, an adequate history must be taken and the record of findings on physical examination must be sufficiently detailed so that it is evident that a thorough examination has been conducted in accordance the Guidelines. The Medical Assessor’s description of “present symptoms” is inadequate, particularly in regard to the cervical spine. There is no mention of the frequency or severity of the neck pain, aggravating of relieving factors, or whether there was any referred pain into the left arm (non-verifiable radicular complaints). The examination findings are not recorded in sufficient detail.
The Appeal Panel found error in this regard and considered a re-examination to be necessary in the circumstances.
In the circumstances of a finding of error the Appeal Panel considered a re-examination of the appellant was necessary and appointed Medical Assessor Roger Pillemer to undertake the re-examination. Medical Assessor Roger Pillemer conducted a re-examination of the appellant on 23 June 2025 and reported to the Appeal Panel as follows:
“APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | W710/25 |
Appellant: | NICOLE CORMACK |
Respondent: | Alpha Personnel Pty Ltd |
Examination Conducted By: | Roger Pillemer |
Date of Examination: | 23 June 2025 |
The workers medical history, where it differs from previous records
Ms Cormack was examined by Dr R Kuru (orthopaedic surgeon) on 28 February 2025 and was asked to assess impairment of the cervical spine and left upper extremity as a result of an injury on 1 November 2017. As noted the MA has done this, finding 5% WPI for restricted range of left shoulder movement and 0% WPI for the cervical spine.
I read Ms Cormack the history that she gave to the MA at the time of the consultation on
28 February 2025, and while she agreed with the history in relation to the injury, she noted that she was in fact having rehabilitation and also having physiotherapy every 2 to 3 weeks, and taking Nurofen on a daily basis, as well as sleeping tablets.With regard to ‘Present Symptoms’ the MA noted that there was painful restriction of left shoulder movement with spasms in her biceps anteriorly, and when she developed the spasms she also developed tightening on the lateral aspect of her neck. (A more detailed history is given below).
As far as ‘Work History’ was concerned, the MA has noted that this was ‘Nil relevant’, and
Ms Cormack informed me that she continued to work on restricted duties and had time off after her first two surgical procedures, and stopped work 2 weeks before her third shoulder operation in 2022.She started working again in early 2023 as an operations manager in the fitness industry which is something she has been doing most of her working life. She is working on a full time basis.
Additional history since the original Medical Assessment Certificate was performed
Left Shoulder
Ms Cormack’s main concern is with her left shoulder region with discomfort extending down towards her left elbow with the symptoms being constantly present and ranging between 3-8/10. Symptoms are aggravated by lying on her left side, or if she tries to lift anything with a wider grip, or any attempt at elevation of her left arm. When she drives she tends to keep her left hand at the bottom of the steering wheel and close to her body. She does get some relief by resting and particularly by keeping her arm close to her body. Tablets help very slightly.
Ms Cormack feels her shoulder symptoms are fairly static at this stage.
Cervical Spine
Ms Cormack indicates discomfort particularly on the right side of her neck and she can be comfortable at rest although there is a constant awareness of discomfort in the cervical region, and symptoms can go as high as 8/10. Symptoms are aggravated particularly by turning her head and neck to either side, and she says for example when she is driving she has to ‘turn my body’. Similarly when she is at work, if she needs to talk somebody behind her, she will always have to turn her body rather than her head and neck. She does get some relief by keeping her head and neck fairly still and the tablets once again might help slightly.
Findings on clinical examination
Ms Cormack was an adult female in no obvious discomfort today who undresses and dresses without a problem.
She has a satisfactory range of flexion and extension movements of her cervical spine but rotation to either side was mildly to moderately restricted, with the left side being more restricted than to the right. Reflexes in her upper limbs are present and equal, sensation was intact and motor power was good in all groups tested. That is, there was no evidence of neurological involvement (that is, no radiculopathy).
Ms Cormack has a full range of right shoulder movements but does have residual restriction of left shoulder movements.
Left Shoulder Movements
| Movement | Range | % Upper Extremity Impairment |
| Flexion | 120° | 4 |
| Extension | 30° | 1 |
| Abduction | 90° | 4 |
| Adduction | 50° | 0 |
| Internal rotation | 70° | 1 |
| External rotation | 80° | 0 |
| Total | 10% |
There was negative impingement on the left side and discomfort when stressing her biceps, and motor power as noted was satisfactory. There was mild discomfort in the subacromial region anteriorly and laterally.
There was no muscle wasting present.
Ms Cormack complains of discomfort to palpation in the mid/lower cervical region and in her left trapezius area.
Results of any additional investigations since the original Medical Assessment Certificate
Ms Cormack has not had any further investigations carried out.”
The Appeal Panel considers that Medical Assessor Pillemer has applied his clinical expertise in conducting a thorough re-examination with detailed physical findings. The Appeal Panel adopts the findings and report of Medical Assessor Pillemer.
The Appeal Panel notes that restriction of cervical movement and shoulder movement, consistent with injury, was found on re-examination as detailed in Medical Assessor Pillemer’s report. This means the appellant falls into DRE Category II of her cervical spine (AMA Guides to the Evaluation of Permanent Impairment, 5th Edition: Page 392, table 15-5. Clinical history compatible with a specific injury; asymmetric loss of range of motion). This gives 5% whole person impairment (WPI). There is no additional impairment for Activities of Daily Living (ADLs), noting that all her restrictions are due to her shoulder, and the only real restriction of her neck is when she is driving or turning her head and neck.
As far as the left upper extremity is concerned, the findings on re-examination result in a 10% upper extremity impairment (UEI) for the reduced range of shoulder movement (AMA Guides to the Evaluation of Permanent Impairment, 5th Edition: Pages 476 to 479, Figures 16-40 to 16-46). This gives 6% WPI for the left upper extremity.
In this regard the Appeal Panel notes that when checking the Medical Assessor’s calculations for the UEI, he said that they gave 9% UEI for the range of shoulder movement, whereas if his figures are checked, they actually give 10% UEI which was consistent with the findings of Medical Assessor Pillemer on re-examination. This equates with 6% WPI.
The combined total is 11% WPI as a result of the subject injury. This means the MAC will need to be revoked and a new certificate issued as follows:
| Date of injury | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 1/11/2017 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 5% | nil | 5% |
| Left upper extremity | 1/11/2017 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 6% | nil | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
For these reasons, the Appeal Panel has determined that the MAC issued on
10 March 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W245/25 |
Applicant: | Nicole Cormack |
Respondent: | Alpha Personnel Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Date of injury | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 1/11/2017 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 5% | nil | 5% |
| Left upper extremity | 1/11/2017 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 6% | nil | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
Table - whole person impairment (WPI)
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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