Dawson v Batemans Bay Bowling & Recreational Club

[2025] NSWPICMP 314

DETERMINATION OF APPEAL PANEL
CITATION:	Dawson v Batemans Bay Bowling & Recreational Club [2025] NSWPICMP 314
APPELLANT:	Kerry Dawson
RESPONDENT:	Batemans Bay Bowling & Recreational Club
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	6 May 2025
DATE OF AMENDMENT:	22 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the left upper extremity, cervical spine and thoracic spine; worker appealed; no complaint on appeal about the overall impairments assessed for thoracic and cervical spine but a complaint about the deduction of one-tenth made under section 323; complaint about the assessment of the left upper extremity at 0% whole person impairment (WPI); Held – error found and re-examination considered necessary; MAC revoked and a new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The worker Kerry Dawson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Jonathan Negus, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 August 2024.

2. 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.

3. 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.

4. 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.

5. 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).

PRELIMINARY REVIEW

1. 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.

2. The appellant in the appeal form did not seek a re-examination but in her submissions she made it clear that she sought a re-examination by a Medical Assessor who was also a member of the Appeal Panel. 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

1. 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

1. Roger Pillemer of the Appeal Panel conducted an examination of the worker on 7 April 2025 and reported to the Appeal Panel.

Medical Assessment Certificate

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor as follows:

   “I have been nominated as the Lead Assessor in the above matter and have included a Medical Assessment Certificate consolidating the assessment of myself and Dr Paul Nichols.

   The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        Date of injury :   23 July 2017

   ·         Body parts/systems referred:     Cervical spine

   Thoracic spine,

   Left upper extremity (shoulder),

   Mastication and deglutition secondary to temporomandibular joint dysfunction

   ·        Method of assessment:               Whole Person Impairment”

4. It is noted that the correct date of injury is 23 July 2007 not 2017.

5. The Lead Medical Assessor issued a certificate with the correct date of injury as follows:

Name of Medical Assessor	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 AMA5 Guides	% WPI	%WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality		Sub-total/s % WPI (after any deductions in column 7)
Dr Jonathan Negus	Cervical spine	23/07/2007	Table 15-5, p.392	7	1/10		6
Thoracic spine	23/07/2007	DRE – Table 15-5, P.388	5	1/10		5
Left upper extremity (shoulder)	23/07/2007	Figures 16-40, 16-43, 16-46, pp. 476, 477 & 479	0	0		0
Dr Paul Nichols	Mastication and deglutition secondary to temporo-mandibular joint dysfunction	23/07/2007	NOT STABLE
Total % WPI (the Combined Table values of all sub – totals)							11%

1. The worker appealed.

2. This Appeal Panel is concerned only with the assessments of Medical Assessor Negus in respect of the orthopaedic injuries.

3. In summary, the appellant submitted that the Medical Assessor made demonstrable errors and/or assessments on the basis of incorrect criteria for reasons which included the following:

   (a)    the Medical Assessor failed to provide any or any adequate reasons for finding 0% impairment with respect of the left shoulder;

   (b)    the Medical Assessor failed to assess permanent impairment based on a strength evaluation, and

   (c)    erred in applying one-tenth reduction to the assessment of permanent impairment of the cervical spine and thoracic spine.

4. The respondent employer Batemans Bay Bowling and Recreational Club (the respondent) submitted that the Medical Assessor did not make demonstrable errors or assessments on the basis of incorrect criteria and the MAC should accordingly be confirmed.

5. 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.

6. 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 23 July 2007, the patient reported that an unsecured door fell onto her back, striking her head and back, and pushing her finger against a blackboard. This occurred at her workplace, Bateman's Bay Bowling and Recreational Club, while the club was under renovation. She was looking for a blackboard for a darts competition. A painter in the area assisted her following the injury. She developed pain in the neck, lower back, shoulder, and jaw. She saw her GP, Dr Adrian Ward, the next day, who referred her to Batons Bay Hospital and a dentist. She developed bruising over her back.

   The patient was referred to Dr Colin Andrews, Neurologist, who organized four facet joint injections into the neck, which provided some relief. Nerve conduction studies were performed, showing cervical root level dysfunction and no carpal tunnel compression. The patient has seen various specialists including Dr Sukumar, who arranged for her to see Dr Curtis for her jaw and base of skull, and Dr Octocators, a maxillofacial surgeon.

   The patient required four months off work, returned on lighter duties for six months, then resigned for reasons unrelated to the injury. She began a supervisory role at Southern Cross Club (Woden) in 2012 and has been in an office-based role full-time since then.

   ·        Present treatment:

   Medications: Nurofen, Panadol, Panadeine Forte.

   Physical Therapy: None specified.

   Medical: Managed by GP.

   Surgical: None recently specified.

   Psychological: Not reported.

   ·        Present symptoms

   Cervical spine: Central neck pain radiating to the occiput, tightness, left arm numbness most nights (relieved by hanging arm beside bed), left side symptoms worse.

   Thoracic spine: Stiffness (relieved by massage), tired, aching pain, worse with bending or lifting.

   Left shoulder: Aching, stabbing pain, worse on movement, tiredness, weakness, partially winged scapula.

   Jaw: Pain.

   ·         Previous / Subsequent Accidents

   2003 - Jarring her neck at work while changing a keg. Saw GP, symptom settled in a few days.

   ·         General health:

   Smoking: Non-smoker.

   Alcohol: Occasional drinker.

   Medical conditions: Previous cholecystectomy.

   Medications: Nurofen, Panadol, Panadeine Forte.

   Surgical procedures: None recently specified.

   Mental health conditions: None reported.

   ·         Work history including previous work history if relevant:

   Education: Left school in Year 10; completed secretarial course

   Work history:

   o   Worked in the hospitality industry until 2012

   o   Worked in administration from 2012

   o   Last worked on 20 December 2023

   o   Currently full-time carer for elderly parents.

   ·         Social activities/ADL:

   Home Chores: Limited, especially vacuuming

   Garden Chores: Previously enjoyed gardening

   Driving: Restricted to under 2 hours

   Sports and Hobbies: Not specified”

7. The Medical Assessor recorded his findings on physical examination as follows:

   “General:

   o   Comfortable throughout examination

   ·         How walked into room:

   o   Normal gait, normal footwear

   ·         Height and weight:

   o   Height: 156 cm

   o   Weight: 78 kg

   Specific areas for examination

   Orthopaedic Examination:

   ·         Shoulder:

   o   No surgical scars

   o   Tender over subclavicular area

   o   Full AROM in both shoulders, no evidence of impingement

   o   Weakness of supraspinatus on the left (grade 4/5 power) compared to right shoulder and the rest of the left cuff (grade 5/5)

   ·         Cervical Spine:

   o   No surgical scars

   o   Tener on left side of neck with some guarding

   o   Slight stiffness in extension and rotation

   o   Normal upper limb neurology

   ·         Thoracic Spine:

   o   No surgical scars

   o   No tenderness

   o   Restriction of movement in lateral flexion and extension”

1. The Appeal Panel considers that the Medical Assessor’s record of the present symptoms in relation to the cervical, thoracic spine and left shoulder are very brief.  Similarly, his findings on examination are also very brief.

2. The appellant complained that the Medical Assessor “…failed to adequately record the results of his assessments of range of motion in the Appellant’s shoulders”. The appellant highlighted that Drs Bodel, Doig and Courtenay have all assessed impairment for restricted range of movement (ROM) of the left shoulder.  

3. The Medical Assessor has clearly stated that there was a full range of movement of both shoulders. However simply noting that there is a full ROM is inadequate and a record of movements should have been provided in the circumstances of this particular case given that the Medical Assessor has taken a history under the heading “Present symptoms” that the appellant was complaining of neck pain with left arm numbness and that her left shoulder was “aching, stabbing pain, worse on movement, tiredness, weakness, partially winged scapula”. The extent of the reported symptoms does not fit with the clinical finding of full ROM which is inadequately explained given measurements of ROM have not been recorded and given the findings by all the other experts whose opinions are in evidence (Drs Bodel, Doig and Courtenay) that there was restriction in the ROM.

4. The Appeal Panel found error in this regard and considered a re-examination to be necessary in the circumstances.

5. In the circumstances of a finding of error the Appeal Panel considered a re-examination of the appellant was necessary and appointed Roger Pillemer to undertake the re-examination.
   Roger Pillemer conducted a re-examination of the appellant on 7 April 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:	M1-W1746/24
Appellant:	KERRY DAWSON
Respondent:	Batemans Bay Bowling & Recreational Club
Date of Determination:

Examination Conducted By:	Roger Pillemer
Date of Examination:	7 April 2025

1. The workers medical history, where it differs from previous records

I read Ms Dawson the history taken by Dr Negus at the time of his examination on 30 May 2024. She noted the date of injury in the MAC was suggested as being 23 July 2017, but in fact this was 23 July 2007, as is noted later in the report.

Ms Dawson agreed with the history in relation to her injury and her treatment, as well as her ongoing symptoms.

As far as work history was concerned, she did work in administration from 2012 to 2019 at the onset of Covid, and then worked from home, but was made redundant in June 2020. Ms Dawson worked for the Australian Pharmaceutical Council in administration duties for a short period.

She did some casual work over Christmas at Bunnings in 2023 and since May 2024 she has been acting as a full time carer for her parents.

1. Additional history since the original Medical Assessment Certificate was performed

Ms Dawson does have significant ongoing symptoms and her main complaint is in relation to her thoracic spine in the mid-thoracic area, radiating around her left chest wall and radiating up towards her left scapula. She describes these symptoms as being constantly present and ranging between 4-8/10. She describes the sensation in this area as ‘stabbing and burning’, and symptoms are aggravated by trying to vacuum, sleeping and rolling over, or driving, and carrying anything on the left side. Elevating her left arm also aggravates these symptoms.

She does get some relief by taking her tablets and by resting, and by keeping her arm down.

Ms Dawson’s next concern is with her left arm where she experiences pins and needles extending from her shoulder region going down into her hand, associated with pins and needles in the fingers, and these symptoms come on particularly at night. She wakes virtually 6 to 7 nights a week and can often wake 2 to 3 times a night. She shakes her arm around and opens and closes the fingers of the hand, and symptoms settle down within a couple of minutes. On specific questioning she does drop things during the day.

Ms Dawson has an occasional problem on the right side but this does not really worry her very much.

Ms Dawson is complaining of ongoing problems with her neck region, particularly on the left side and these symptoms can occasionally still be very severe and go up to 9/10 but she can go for reasonable periods without any particular discomfort. Symptoms are aggravated by movements of her head and neck, particularly rotation to the left.

As far as limitations are concerned, she is aware that she cannot swing her left arm when she walks, and she can drive but not for long periods. As noted, she is caring for her parents and what would normally take her 1 hour, she now has to break up into ‘5 minute sprints’, and if she does things for longer than that, she will pay for it afterwards. When she goes shopping she manages, but has to be careful and notes ‘I know my limits’. If she carries anything heavy on the left side, this will aggravate her pain. She manages with her self-care.

1. Findings on clinical examination

Ms Dawson is an adult female in no obvious discomfort today with a very pleasant and open disposition. She walks without an obvious limp, is able to walk on heels and toes and has a good range of lumbar movement. She does have restriction of rotation of her thoracic spine as tested in a flexed position, and rotation to the left is more restricted than to the right. Importantly, she does have discomfort to palpation of the mid-thoracic region where she gets her discomfort, and there is hypoaesthesia to pinprick going around her chest wall from approximately T5 to T8. This was distinct and present with repeated testing.

Ms Dawson shows restriction of cervical movement particularly with lateral rotation to the left with other movements being only slightly restricted. There was no evidence of guarding or spasm. She has a full range of right shoulder movement but does have restriction of left shoulder movement.

Left Shoulder Movement

Movement	Range	% Upper extremity impairment
Flexion	140°	3
Extension	30°	1
Abduction	130°	2
Adduction	50°	0
Internal rotation	80°	0
External rotation	80°	0
Total	6%

There was a suggestion of scapular winging in previous reports, but this was not present on examination today.

Importantly, she does have hypoaesthesia to pinprick over the lateral aspect of her left upper arm in the distribution of the axillary nerve which is distinct and present with repeated testing.

She also has marked localised tenderness to palpation posteriorly at the inferior level of the glenohumeral joint where the axillary nerve passes through the quadrilateral space. There was a suggestion of slight wasting of the left posterior deltoid only.

Ms Dawson has distinct hypoaesthesia to pinprick of her left hand involving the thumb, index, middle and radial half of her ring finger, in a typical median nerve distribution. However, Phalen’s and Durken’s tests were negative.

1. Results of any additional investigations since the original Medical Assessment Certificate

Ms Dawson has not had any further investigations carried out since the original Medical Assessment Certificate.”

1. 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.

2. In respect of the assessment of upper extremity, as noted at the time of the re-examination by Medical Assessor Pillemer, a restricted range of shoulder movement was found as indicated in the Table above. This equates with 6% upper extremity impairment which in turn equates with 4% WPI. The Appeal Panel notes the findings of restrictions in the ROM is in keeping with the findings of a number of specialists who had examined appellant in the past.

3. There is no merit to the submission on appeal that the Medical Assessor failed to assess permanent impairment based on a strength evaluation. This is because “strength evaluation cannot be used in the presence of decreased motion, painful conditions, deformities…that prevent effective application of maximal force in the region being evaluated” (see AMA 5 page 508, 16.8a – Principles).

1. The appellant was having symptoms in her left shoulder and left arm associated with pain and therefore strength evaluation could not be used by way of assessment.

2. In respect of the cervical spine, there was no complaint about the overall assessment of impairment at 7% WPI rather it was the deduction of one-tenth under s 323 that was the subject of complaint on appeal.

3. A deduction can only be made under s 323 in respect of a pre-existing injury condition or abnormality if the pre-existing condition injury or abnormality has contributed to the level of permanent impairment assessed. The fact that a pre-existing condition is asymptomatic prior to injury is a factor to be taken into account but it is not determinative. If the extent of the deduction is too difficult or costly to determine, the deduction will be one-tenth unless that is at odds with the available evidence.

4. It is noted that the appellant was asymptomatic at the time of injury. In the MAC, the Medical Assessor does refer to the appellant having had a previous problem with her neck in 2003 while changing a keg, but that these symptoms settled within a few days.

   With regard to special investigations, there were some degenerative changes present, but the appellant was asymptomatic as far as her cervical spine was concerned at the time of her injury on 23 July 2007 and was able to actively participate in her employment and activities of her daily life but since the injury has remained symptomatic. A deduction simply on the basis of radiological changes (which radiology all post dates the injury) is inappropriate when the appellant’s history is taken into account.

5. The appellant also submitted that the deduction of one-tenth made in respect of the thoracic spine was in error. Although as noted by the appellant it makes no difference to the final assessment for the thoracic spine of 5% because of rounding, the Appeal Panel considers that the deduction was made in error for the same reasons that apply to the cervical spine, noting that the appellant was asymptomatic in the thoracic spine at the time of injury, there is no clinical history recorded in respect of the thoracic spine and the radiological investigations all post date the injury. A deduction in respect of the thoracic spine simply on the basis of radiological changes (which radiology all post dates the injury) is inappropriate when the appellant’s history is taken into account.

6. Combining these figures (7+5 +4) gives 16% WPI. These figures are reflected in the Table below.

Body Part	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	23/07/07	Chapter 4 Page 24-29	Chapter 15 Page 392 Table 15-5	7%	nil	7%
Thoracic spine	23/07/07	Chapter 4 Page 24-29	Chapter 15 Page 389 Table 15-4	5%	nil	5%
Left upper extremity (shoulder)	23/07/07	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	4%	nil	4%
Total % WPI (the Combined Table values of all sub-totals)					16%

1. The Appeal Panel has been asked to consolidate the reconsidered MA of Dr Nichols who previously assed the appellant as not having reached MMI (maximum medial improvement) but upon reconsideration has assessed the appellant as follows:

WPI Body Part or System	Date of Injury	Chapter, Page and Paragraph number in NSW AMA4 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 7)
ENT	23/7/07	Ch 9.	9	0	9
Mastication	Section 9.b
TMJ	Table 6
Page 231

1. Using the combined vales table you combine 9, 7, 5 and 4 which gives 22% WPI.

2. A consolidated MAC will be now issued as follows:

Body Part	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	23/07/07	Chapter 4 Page 24-29	Chapter 15 Page 392 Table 15-5	7%	nil	7%
Thoracic spine	23/07/07	Chapter 4 Page 24-29	Chapter 15 Page 389 Table 15-4	5%	nil	5%
Left upper extremity (shoulder)	23/07/07	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	4%	nil	4%
EMT Mastication TMJ (Dr Nichols)	23/07/07	Chapter 9 Section 9.b Table 6 Page 31	9%	0	9%
Total % WPI (the Combined Table values of all sub-totals)					22%

1. For these reasons, the Appeal Panel has determined that the MAC issued on
   19 August 2024 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:	W1746/24
Applicant:	Kerry Dawson
Respondent:	Batemans Bay Bowling & Recreational Club

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 lead Medical Assessor Jonathan Negus and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Body Part	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	23/07/07	Chapter 4 Page 24-29	Chapter 15 Page 392 Table 15-5	7%	nil	7%
Thoracic spine	23/07/07	Chapter 4 Page 24-29	Chapter 15 Page 389 Table 15-4	5%	nil	5%
Left upper extremity (shoulder)	23/07/07	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	4%	nil	4%
EMT Mastication TMJ (Dr Nichols)	23/07/07	Chapter 9 Section 9.b Table 6 Page 31	9%	0	9%
Total % WPI (the Combined Table values of all sub-totals)					22%

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.