Crawford v Weston Aluminium (Manufacturing) Pty Ltd
[2022] NSWPICMP 58
•22 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Crawford v Weston Aluminium (Manufacturing) Pty Ltd [2022] NSWPICMP 58 |
| APPELLANT: | Barry Norman Paul Crawford |
| RESPONDENT: | Weston Aluminium (Manufacturing) Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr Drew Dixon Dr Gregory McGroder |
| DATE OF DECISION: | 22 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal asserting availability of additional relevant information, incorrect criteria and demonstrable error; Medical Assessor assessed injury to the left shoulder and consequential condition in the right shoulder, deducting 2/10 left shoulder and 3/10 right shoulder impairment as due to a pre-existing condition; statement of the appellant worker asserting failure to assess in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment said to constitute additional relevant information; Held- statement rejected – application of Petrovic v B C Serv No 14 and Others and Lukacevic v Coates Hire Operations; the reasons for the respective deductions were unclear from the Medical Assessment Certificate; error established in this regard; upon reassessment a deduction of 1/10 was found not to be at odds with the evidence. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 November 2021 Barry Norman Paul Crawford lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 October 2021.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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 grounds of appeal on which the appeal is made.
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 section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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, Barry Norman Paul Crawford, commenced employment with the respondent, Weston Aluminium (Manufacturing) Pty Ltd as a level 4 operator and storeman in 2004. His duties included driving a loader, picking up loads of aluminium scrap. On occasions he had to manoeuvre large steel bins so that they could be lifted. He was also required to perform sweeping and shovelling tasks, as well as repetitively lifting 2 kg bags.
Mr Crawford continued these duties for many years but began to notice pain in his low back and, subsequently, pain in the left shoulder. Towards the end of October 2015 Mr Crawford noticed increased pain in his back and left shoulder after shovelling an estimated tonne of material. He took a week’s leave and undertook physiotherapy.
The pain recurred upon return to work and Mr Crawford consulted his general practitioner and undertook further physiotherapy. He continued to suffer pain and was placed on restricted duties. Despite cortisone injections he continued to suffer symptoms in the left shoulder and was referred to an orthopaedic surgeon, Dr Osborne, who performed a left shoulder arthroscopic acromioplasty and repair on 19 July 2016. Mr Crawford subsequently received a steroid injection and hydro dilation in October 2016 as he was still suffering symptoms.
Mr Crawford returned to the workplace but performing his work duties aggravated his left shoulder and he underwent an arthroscopic acromioplasty and bicipital tenodesis in June 2017. Mr Crawford subsequently developed right shoulder pain, attributed to favouring the left shoulder. A right shoulder arthroscopic acromioplasty was carried out on 27 March 2019 followed by physiotherapy.
Mr Crawford was examined by an orthopaedic surgeon, Dr Abe Isaacs, at the request of
Mr Crawford’s solicitors for the purpose of assessing impairment, with a view to a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). Dr Isaacs assessed impairment in the left and right shoulders by reference to the range of motion in each shoulder, measured in accordance with the Guidelines. On the basis of those measurements Dr Isaacs assessed 9% whole person impairment (WPI) in respect of the left shoulder and 8% WPI for the right shoulder after making an allowance for a pre-existing condition in both shoulders. Dr Isaacs also assessed lumbar spine impairment but that assessment is not relevant to the current appeal.Mr Crawford’s legal representatives made a claim for lump-sum compensation pursuant to section 66 of the 1987 Act in accordance with Dr Isaac’s assessment. The insurer declined liability, noting that in earlier proceedings there had been an award for the respondent in respect of a claim of injury to the lumbar spine and asserting on the basis of examination by Associate Professor Miniter, that there was no assessable impairment resulting from workplace injury.
Mr Crawford’s legal representatives commenced proceedings in the Commission. The respondent maintained its denial of liability, but agreement was reached at conciliation for the dispute as to the extent of impairment arising from injury to the left upper extremity (shoulder) and the consequential condition in the right upper extremity (shoulder) to be remitted to the President for a referral to a Medical Assessor in respect of injury deemed to have occurred on 4 January 2019 and including an injury on 29 October 2015.
Mr Crawford was examined by the Medical Assessor, Dr Lewington, on 25 October 2021. The Medical Assessor assessed Mr Crawford by reference to range of motion of the respective shoulders. He assessed Mr Crawford as having 7% WPI in respect of the left upper extremity and 6% in respect of the right upper extremity. The Medical Assessor deducted 2/10 of the assessed impairment with respect to the left shoulder and 3/10 of the assessed impairment with respect to the right shoulder so as to yield an assessment of 6% in respect of the left shoulder and 4% in respect of the right shoulder, giving a total of 10% WPI as a result of injury to the left shoulder and consequential condition in the right shoulder resulting from the subject injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
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 sufficient material was available to the Panel to enable it to determine the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit a statement by Mr Crawford dated 23 November 2021.
The appellant submits that the evidence is relevant to establish that the Medical Assessor had not conducted his assessment of the range of motion in accordance with the Guidelines. The appellant submits that the evidence was not available and could not reasonably have been obtained because the observations in the statement post-date the examination.
The respondent noted the appellant’s assertion that the Medical Assessor had failed to undertake a proper examination in assessing the range of motion in the shoulders but submitted that the evidence indicated that the proper examination had been carried out. The respondent’s submissions did not directly address the issue of whether the statement should be admitted into evidence.
The Appeal Panel determines that the evidence should not be received on the appeal. Section 328(3) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The admission of fresh evidence on appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance[1] (Ross). In Ross, the Deputy President stated:
[1] [2002] NSWCCPD 7.
“A number of authorities have considered the tests at common law for the introduction
of fresh evidence in appellate proceedings before the Courts. The relevant tests are
firstly, that the evidence which is sought to be admitted on appeal was not available to
the Appellant at the time of the original proceedings or could not have been discovered
at that time with reasonable diligence, and secondly that the evidence is of such
probative value that it is reasonably clear that it would change the outcome of the case
(Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93
CLR 418; Orr v Holmes(1948) 76 CLR 632). These tests are addressed to the
underlying principle of the need for finality in litigation and the importance of the ability
of the successful party to rely on the outcome of the litigation. They are also addressed
to the fundamental demands of fairness and justice in the instant case.”
The Panel accepts that the statement sought to be admitted would not have been available prior to the examination, since it deals with the conduct of that examination. However, the statement cannot be relevant to whether adoption of incorrect criteria is made out on the face of the MAC, in light of the material considered by the Medical Assessor. The statement can only be of relevance with respect to the ground of appeal relied upon pursuant to section 327(3)(b) of the 1998 Act which provides for an appeal based upon:
“availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against).”
In Petrovic v B C Serv No 14 and Others[2] (Petrovic) Hoeben J held that an Appeal Panel has the discretion to accept late evidence provided that it met the test set out in section 328(3) of the 1998 Act. In that case the appellant worker sought to introduce into evidence to statutory declarations dealing with the way in which the examination process had been conducted. Hoeben J held that, to meet the requirements of section 327(3)(b) the evidence sought to be introduced was restricted to “information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment”.[3]
[2] [2007] NSWSC 1156.
[3] At [31].
The information in the appellant’s statement which is sought to be introduced into evidence is restricted to the conduct of the examination process and therefore cannot constitute “additional relevant information” for the purposes of the ground of appeal relied upon pursuant to section 273(3)(b).
Hoeben J considered that the position of the gatekeeper when considering evidence in support of an appeal pursuant to section 273(3)(b) but distinguished the situation where the appeal was permitted to proceed and the Appeal Panel was then required to consider the admissibility of the evidence pursuant to section 328(3). His Honour said:
“[34] There is another consideration which I have taken into account. If the function of the Registrar under s327 is to be in reality that of a gatekeeper, then statutory declarations such as were sworn in this case should not be regarded as “additional relevant information” for the purposes of s327(3)(b). If they are, it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.
[35] Once a matter has come before a MAP, the situation is different. As I indicated in Zuanic v Gypro-tech (Australia) Pty Limited [2006] NSWSC 739; (2005-6) 66 NSWLR 206 the powers of the MAP under s324 and 328(3) are quite extensive. It is also not without significance that subs328(3) does not have the qualification of “additional relevant information”. Such matters as were contained in the statutory declarations could be considered by the MAP at that stage.”
Hoeben J said (at [37]):
“In other words once a matter is properly before the MAP, it is not restricted in its considerations purely to those grounds of appeal which the Registrar considered had been ‘made out’ but is to carry out a review in accordance with s328. That may include having regard to evidence of the kind contained in the statutory declarations. Accordingly, although the Registrar erred in allowing the appeal to go forward on the basis that the ground in subs327(3)(b) had been made out, it was open to MAP to have regard to this evidence once the matter was properly before it. Since no challenge has been made to the Registrar’s decision, the matter was properly before the MAP in this case.”
In Lukacevic v Coates Hire Operations[4] (Lukacevic), Hislop J reviewed a MAP decision with respect to the admission of a post-examination statement by the appellant worker, detailing a complaint that the assessor had failed to question the worker about various aspects of his condition and setting out information that the worker would have given had he been questioned appropriately.
[4] [2010] NSWSC 551.
With respect to the exercise of discretion by the Panel, Hislop J said:
“30 In exercising the discretion regard must be had to the context in which the discretion arises and to the general public interest in the finality of litigation – Summerfield[5] at [52].
31 The plaintiff submitted that, if there was a discretion, its exercise miscarried as:
(a) the AMS, as the administrative decision maker, had no vested interest in the outcome of any appeal from his decision. As his rights and interests were not affected by the outcome of the appeal, there was no need to accord him ‘procedural fairness’;
(b) the MAP was not required to adjudicate between the AMS and the plaintiff, nor to engage in a ‘continual opening and reopening of the evidence’.
32 The reference to ‘procedural fairness’ was not, it seems to me, a reference to the AMS but a reference to the first defendant. There was a legitimate concern that, if the Statement was admitted, procedural fairness to the first defendant would require a response to be obtained from the AMS in respect of the allegations of the plaintiff concerning the conduct of the assessment, the AMS being a competent, but not compellable witness – WIM s. 325(4). The admission of the Statement would lead to delay as information was sought from the AMS, the possibility of the plaintiff seeking a right of reply to the AMS and the MAP ultimately being required to adjudicate between the plaintiff and the AMS. These matters could lead to the prolongation of the appeal, contrary to the statutory scheme which seeks to achieve finality and would involve issues not contemplated by the appeal mechanism.”
[5] Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515.
Upon appeal[6] Hodgson JA (Handley JA agreeing, Giles JA dissenting):
“[77] An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.
A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[6] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112
In the present case, the Panel considers that the information contained in the further statement cannot be admitted in support of the ground of appeal relied upon pursuant to section 327(3)(b) of the 1998 Act. In considering admissibility pursuant to section 328(3) the Panel accepts that this was information of a kind of that was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that assessment. However, if the statement were to be admitted, the respondent would then have to take the steps suggested by Hislop J (at first instance) in Lukacevic, obtaining a statement from the Medical Assessor (noting that, as a witness, he is competent but not compellable) with a requirement for the Panel to consider the admissibility of additional evidence and ultimately having to adjudicate between the appellant and the Medical Assessor.
The Panel notes the measurements of range of motion recorded by the Medical Assessor in the MAC. The Panel considers that it is unlikely that any weight would be given to the appellant’s statement that the Medical Assessor had, in effect, estimated the ranges of motion rather than measuring them in accordance with the Guideline.
Admission of the statement would inevitably lead to delay and, in the interest of finality and the unlikely prospect that the evidence would be given sufficient weight to alter the outcome, the Panel declines to admit the statement in the exercise of its discretion.
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 submits that the Medical Assessor fell into error and applied incorrect criteria when assessing the extent of the deduction to be made pursuant to section 323 of the 1998 Act.
The appellant also submits that the Medical Assessor has failed to give sufficient reasons for the deduction pursuant to section 323 and the course of reasoning for deduction of two tenths in respect of the left shoulder and 3/10 in respect of the right shoulder is not discernible. The appellant submitted that the statement of Mr Crawford, dated 23 November 2021, cast doubt on the findings by the Medical Assessor as to the range of motion. The appellant submitted that Mr Crawford should be re-examined by a member of the Panel.
In reply, the respondent submits that the Medical Assessor had identified pre-existing conditions in both shoulders and had adequately explained his reasoning as to the contribution of that condition to the upon examination. The respondent submitted that the MAC demonstrated that the Medical Assessor had conducted “a thorough and appropriate examination”.
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[7] 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.
[7] [2006] NSWCA 284
The appellant has included a ground of appeal pursuant to section 327(3)(b) of the 1998 Act. That ground of appeal relies upon the “availability of additional relevant information”. For the reasons set out above, the Panel has declined to admit the statement of Mr Crawford dated 23 November 2021. In the absence of that statement there is no “additional relevant information” and this ground of appeal fails.
The appellant submitted that there should be a further examination undertaken by a Medical Assessor member of the Panel. The Medical Assessor stated: “The active shoulder range has been measured with a goniometer”. The appellant noted that the Medical Assessor had not attached his worksheet to the MAC, however, the Panel is satisfied that all the relevant information expected to be found on the worksheet is contained in paragraph 5 of the MAC:
“Referencing AMA 5, Page 475, Figure 16-38; Page 477, Figure 16-41 and Page 478,
Active Shoulder Movements
Right R.O.M
Left R.O.M
Normal R.O.M
(indicative only)
Flexion
90°
90°
180°
Extension
40°
40°
50°
Abduction
140°
130°
180°
Adduction
30°
30°
50°
Internal Rotation
80°
60°
90°
External Rotation
80°
80°
90°
The resultant upper extremity impairment (U.E.I) results from adding (1f% + Ie%) + (labd% + ladd%) + (lir%).
This adds to a total right shoulder Upper Extremity Impairment (U.E.I) of 10% and for the left shoulder U.E.I. of 12%. Using AMA 5, Table 16-3, Page 439.”
The Panel does not accept that re-examination is required because there is sufficient information before the Panel to enable the issues to be decided. Re-examination of
Mr Crawford would not assist with respect to the complaints of error with regard to the extent of deduction to be made pursuant to section 323. With respect to the range of motion assessed by the Medical Assessor, the Panel notes the presumption of regularity referred to by James J in Jones v Registrar Workers Compensation Commission[8];“The second defendant clearly made a clinical examination of the plaintiff and he stated in his certificate his finding that ‘the range of motion in the cervical spine was symmetrical’. There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical. The medical science the second defendant was applying was not controversial and his reasons were not required to be extensive or detailed.”
[8] [2010] NSWSC 481 at [50].
The Panel accepts that Mr Crawford was appropriately assessed by reference to the range of motion in the left and right shoulders and the assessment was conducted in accordance with the Guidelines.
The appellant also relies on grounds of appeal under section 327(3)(c) and (d), stating:
“Pursuant to the 1998 Section 327 (3) (c) and (d), the worker contends the assessment of impairment was made on the basis of incorrect criteria and/or the Medical Assessment Certificate (MAC) contains a demonstrable error, such in relation to the section 323 deduction is in respect of each of the right shoulder and the left shoulder.”
The Medical Assessor, under the heading “Details of any previous or subsequent accidents, injuries or condition”:
“He initially developed back and right more than left shoulder discomfort in approximately August 2002 when performing repetitive overhead tasks lifting at Clarke Foods where he worked as a store person from 2001 to 2004. There was further aggravation in November 2002 when lifting overhead.
He was seen by orthopaedic surgeon, Dr Posel, and proceeded to right shoulder arthroscopic acromioplasty 16 July 2003. This was followed up by a rehabilitation programme.”
Under the heading “Summary of injuries and diagnoses” the Medical Assessor reported:
“Recurrent bilateral shoulder injuries and aggravations with the right shoulder arthroscopic acromioplasty 16 July 2003; left shoulder arthroscopic acromioplasty and repair on 19 July 2016 complicated by left frozen shoulder; left shoulder arthroscopic acromioplasty and bicipital tenodesis 21 June 2017; and a right shoulder arthroscopic acromioplasty 27 March 2019.”
The Medical Assessor reported that a proportion of the impairment was due to a pre-existing injury, pre-existing condition or abnormality[9] affecting both shoulders.
[9] MAC, para 8e.
The Medical Assessor noted the opinion of Associate Professor Miniter to the effect that there was no work-related causal relationship between the shoulder impairment and employment with the respondent. The Medical Assessor noted that causation was no longer an issue and that his task was to assess impairment and any deductible proportion.
The Medical Assessor noted that Dr Isaacs had assessed Mr Crawford’s bilateral shoulder impairment as being due, in part, to a previous injury or pre-existing condition and had considered that one tenth of the assessed impairment was due to that previous injury, pre-existing condition or abnormality.
The Medical Assessor was of the opinion that a one tenth deduction was at odds with the available evidence which he set out in paragraph 11 of the MAC:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
i) Bilateral shoulder supraspinatus tendinitis and impingement syndrome/marked bursitis on the right shoulder with previous right shoulder arthroscopic acromioplasty.
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 previous condition contributed directly to the need for further arthroscopic surgery to the shoulders.
c. Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of 1/10 is at odds with the available evidence. In my opinion the deductible proportion is 3/10 for the right shoulder and 2/10 for the left shoulder for the following reasons:
It is noted in the MA brief that any deductible proportion is in relation to a deemed date of injury being 4 January 2019 and including the injury 29 October 2015. It is also noted that the deemed injury date is in relation to nature and conditions of employment as pleaded under Part 4 of the MA brief ‘Injury Details’.”
(The Medical Assessor then set out his understanding of the situation prior to commencement of employment with the respondent).
The Medical Assessor noted the findings of the treating orthopaedic surgeon, Dr Posel, who had recorded that Mr Crawford had “bilateral shoulder supraspinatus tendinitis and impingement syndrome” which had been treated with anti-inflammatories, physiotherapy and bilateral shoulder steroid injections. Dr Posel had recorded the condition in both shoulders as being chronic and worse on the right side.
The Medical Assessor noted right shoulder surgery performed by Dr Posel and the subsequent rehabilitation. Surgery had disclosed “marked bursitis requiring extensive bursal debridement. There was also inflammation involving the rotator cuff related to ongoing impingement, but no tears”.
Dr Posel had recorded that Mr Crawford had expressed reservations about his ability to return to his former employment when last reviewed in October 2003.
The Medical Assessor recorded that Mr Crawford’s shoulder symptoms had receded after he left Clarke Foods and he was able to take up normal duties with the respondent some four or five months later. He noted that Mr Crawford had not experienced any major shoulder problems with his normal duties in his earlier years with the respondent.
The Panel notes the submissions made on behalf of the appellant which direct attention to the history which included the onset of left shoulder pain in 2012 and right shoulder pain in 2018. That submission accords with the history obtained by the Medical Assessor and is accepted by the Panel.
The appellant submitted that the Medical Assessor had not provided any description of the pre-existing pathology in either shoulder, asserting that the Medical Assessor had described treatment rather than pathology. The appellant submitted that the respective proportions assessed by the Medical Assessor were at odds with the factual situation in that Mr Crawford had been able to perform labouring work in the employ of the respondent from 2004 to 2012 without complaint of symptoms in either shoulder.
The Panel notes that the appellant’s claim was based on, and in accordance with, the report of Dr Isaacs dated 23 March 2020. Dr Isaacs measured a lesser range of motion in
Mr Crawford’s shoulders, concluding that he suffered 10% WPI in respect of the left shoulder at 8% WPI in respect of the right shoulder. Dr Isaacs said:“According to paragraph 1.28 (page 6 of SIRA Guidelines) 1/10th of the impairment is deducted from both shoulders for previous injury therefore, the final permanent percentage impairment for the right shoulder is 9% whole person impairment, for the right shoulder is 8% whole person impairment.”
The appellant has made the claim on the basis of Dr Issacs’ opinion and it appears to be accepted by the appellant that there was a pre-existing condition in, or previous injury to, both shoulders at the time Mr Crawford commenced employment with the respondent.
The Panel does not accept that the Medical Assessor has fallen to error in not providing a description of the pathology which constituted the pre-existing condition. That pathology is readily inferred from the treatment provided which is recorded by the Medical Assessor. The observations by Dr Posel in October 2003 recorded “bilateral supraspinatus tendinitis and impingement at 90° of abduction, worse on the right side”.
Dr Isaacs had accepted that there was a pre-existing condition and the Panel considers that there was no requirement for the Medical Assessor to provide further details of an acknowledged condition.
The appellant also submitted that, in the light of the history of absence of symptoms for eight years after commencing employment with the respondent, the Medical Assessor had not explained how he had arrived at his conclusion that three tenths of the impairment in the right shoulder and two tenths of the impairment in the left shoulder were attributable to a pre-existing condition in the respective shoulders.
The Panel accepts that submission. The presence of a pre-existing condition was accepted by the appellant’s independent medical expert, Dr Isaacs, and the claim has been made on the basis of Dr Issacs’ opinion. The Panel accepts that error has been established in that the Medical Assessor has not explained his course of reasoning in assessing a proportion of one tenth as being at odds with the available evidence.
Error having been established, the Panel has considered the evidence and the submissions of the parties in order to assess the extent of the deduction that is to be made pursuant to section 323 of the 1998 Act.
The Panel accepts that the evidence establishes that Mr Crawford had a pre-existing condition in both shoulders at the time he commenced employment with the respondent. That condition can be described as “bilateral shoulder supraspinatus tendinitis and impingement”[10].
[10] Report of Dr Posel dated 3 June 2003
Both Dr Isaacs and the Medical Assessor appreciated that the extent to which the impairment measured by the Medical Assessor upon examination was due to the pre-existing condition is difficult to establish. The Panel agrees with that assessment.
The nature of the condition suffered by Mr Crawford prior to his commencing employment with the respondent may well have been asymptomatic but this does not militate against a deduction if the condition nevertheless contributes to the overall level of impairment assessed[11].
[11] Vitaz v West Form (NSW) Pty Ltd [2011] NSWCA 25
Mr Crawford’s pre-existing condition resulted from heavy use of the shoulders which imposed wear and tear on those joints. Although asymptomatic, that wear would have continued and ultimately been aggravated by the workplace activities undertaken with the respondent and would contribute to the level of impairment assessed upon examination.
The absence of symptoms in the eight years following commencement of employment with the respondent is a powerful piece of evidence as to the extent of that contribution which can reasonably be concluded to be relatively minor. The Panel accepts that the extent of that contribution is difficult to assess but a contribution of one tenth would not be at odds with the evidence.
Accordingly, the Panel is satisfied that Mr Crawford is appropriately assessed as having 6% WPI in respect of injury to the right upper extremity (shoulder) and 7% WPI in respect of the left upper extremity (shoulder). In respect of the pre-existing condition, a deduction pursuant to section 323 the 1998 Act of one tenth in respect of each shoulder is appropriate, so that the right upper extremity is assessed at 5% WPI after rounding and the left upper extremity is assessed at 6% WPI after rounding, as a result of the subject injury. Applying the Combined Values Chart yields a total of 11% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 October 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr David Lewington 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. Left upper limb (shoulder) | 4/01/19 (deemed) and including injury 29/10/15 | Chapter 2, Page 11, paragraphs 2.14 to 2.16 Page 12, paragraphs 2.20 and Page 10, para 2.5 | Chapter 16, Page 476- 479, figure 16-40, 16-43 and figure 16-46 | 7% | 1/10 | 6% |
| 2. Right upper limb (shoulder) | 4/01/19 (deemed) and including injury 29/10/15 | Chapter 2, Page 11, paragraphs 2.14 to 2.16 Page 12, paragraphs 2.20 and Page 10, para 2.5 | Chapter 16, Page 476- 479, figure 16-40, 16-43 and figure 16-46 | 6% | 1/10 | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Mr William Dalley
Member
Drew Dixon
Medical Assessor
Gregory McGroder
Medical Assessor
22 March 2022
12
0