De Fries v The Disability Trust

DETERMINATION OF APPEAL PANEL
CITATION:	De Fries v The Disability Trust [2024] NSWPICMP 457
APPELLANT:	Sandra De Fries
RESPONDENT:	The Disability Trust
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Todd Gothelf
DATE OF DECISION:	11 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment of the left shoulder; whether assessor erred in making multiple deductions for pre-existing injury and pre-existing condition; Held – Medical Assessment Certificate revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Ms De Fries, appeals from the Medical Assessment Certificate of Medical Assessor Ho dated 28 February 2024.
The Medical Assessor assessed a 15% whole person impairment (right shoulder 10%, left shoulder 6%) as a result of injury on 14 November 2019 (deemed date). On that occasion, Ms De Fries noticed right shoulder pain when pulling herself up into a work van. Symptoms later emerged in the left shoulder, which she was using in order to favour the injured right shoulder.
With respect to the right shoulder, the Medical Assessor initially assessed a 19% whole person impairment. From that, he deducted half for a pre-existing work injury in 2013 with a previous employer, to arrive at 10% whole person impairment.
With respect to the left shoulder, he initially assessed a 21% whole person impairment. From that, he deducted 10% whole person impairment (which had been assessed by Approved Medical Specialist Dr Mastroianni as a result of the 2013 work injury in a Medical Assessment Certificate dated 9 July 2015) to arrive at 11% whole person impairment. From the resulting 11%, he deducted one half to arrive at 6% whole person impairment.
The appellant worker submits that the Medical Assessor erred in making the deductions he did in respect of the left shoulder only.
No error is alleged with respect to:
(a)    the initial assessment of 21% whole person impairment (left shoulder);
(b)    the assessment of 19% whole person impairment (right shoulder), or
(c)    the deduction of one half from the assessment of the right shoulder for a pre-existing work injury in 2013.

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.

SUBMISSIONS

The parties made written submissions which have been taken into account. They are not repeated in full, but the appellant’s submissions may be summarised briefly as follows:
(a)    Approved Medical Specialist Dr Mastroianni assessed 10% whole person impairment (9% left shoulder; 1% scarring). As he assessed 9% whole person impairment only in respect of the left shoulder, it was impermissible for the Medical Assessor to deduct 10% whole person impairment from his assessment of the left shoulder;
(b)    in any event, the Medical Assessor failed to make a necessary finding, that the permanent impairment assessed by Dr Mastroianni currently contributes to impairment. He simply assumed that it did so. Such an assumption is impermissible; Fire and Rescue v Clinnen [2013] NSWSC 629;
(c) section 323 of the Workplace Injury Management and Workers Compensation Act 1998 permits the making of only one deduction, based on clinical impression at the time of examination. The Medical Assessor erred by making two separate deductions, and
(d)    he also erred by accepting that Dr Mastroianni’s assessment of whole person impairment resulting from the 2013 injury remained correct as at the date of examination on 12 February 2024. His task was to make his own assessment of the degree of continuing impairment resulting from the 2013 work injury. He erred in failing to do so. The worker gave statement evidence that she made a strong recovery from surgery for the 2013 work injury and returned to pre-injury duties.
In brief summary, the respondent employer submits as follows:
(a) the Medical Assessor made a deduction for the 2013 work injury ‘and a separate and discrete congenital, degenerative condition as contemplated by section 323’;
(b)    Dr Mastroianni assessed a 9% whole person impairment with respect to the left shoulder as a result of the 2013 work injury. The appellant is correct in asserting that Medical Assessor Ho erred by deducting 9% rather than 10%, but this error has made no difference to the outcome, because a deduction of 9% from 21% would yield 12%, half of which is 6% whole person impairment as assessed;
(c)    the Medical Assessor found that a proportion of current impairment was due to the 2013 work injury, and that it contributed to the level of impairment;
(d)    he did not abrogate the task of assessment, but rather conducted a thorough examination to determine range of motion. The results were ‘practically identical’ to those measured by Dr Mastroianni. By making a deduction for the previous injury, Medical Assessor Ho “has avoided "doubling up" the assessed impairment by reference to the "range of motion" impairment assessment methodology”;
(e)    the deduction for pre-existing congenital, degenerative condition made by the Medical Assessor was similar to that made by Dr Pillemer. Dr Machart made an even greater deduction, and
(f) it is not correct to say that s 323 confines a Medical Assessor to making only one deduction in relation to multiple pathologies, caused by previous trauma and congenital non-work-related conditions.

Deduction for 2013 injury

The Medical Assessor summarised the history at [4] in the following way:
“Sandra De Fries claimed to have a work injury on 14 November 2019 when she tried to pull herself up into the work van, she noticed pain in the right shoulder. Investigations at that time, in terms of ultrasound and MRI scan, were showing massive chronic rotator cuff tear, certainly with features of cuff arthropathy. She also complained, that a couple of months’ later, while she was favouring the use of the right shoulder, the left shoulder also became painful and stiff. Once again, x-ray, ultrasound and MRI at that time also confirmed massive chronic rotator cuff tear with features of cuff arthropathy. She ended up having a shoulder replacement with reverse prosthesis done by Dr Mark Haber on the right side on 06 August 2020 and the left side on 13 October 2021. The operation was helpful and improved the problems but the shoulders were never the same.”
Under the heading, ‘Details of any previous or subsequent injuries, accidents or condition’, he recorded:
“She has a history of surgery to the left shoulder, it was also a work injury and she ended up with an operation in March 2013 which was complicated with frozen shoulder, requiring MUA and capsular release, apparently with a good result. In the patient file, there was talk about a 10% whole person impairment of the left shoulder but the patient told me, there was never any compensation paid to her at all, relating to that work injury although there was assessment of 10% whole person impairment based on a WCC MAC with reference number 2658/15.”
The latter was a reference to the assessment of Approved Medical Specialist Dr Mastroianni as a result of the 2013 work injury in his Medical Assessment Certificate dated 9 July 2015.
Medical Assessor Ho explained his deductions at [10b] of his reasons - emphasis added:
“The right shoulder will be equal to 19% whole person impairment and the left shoulder will be equal to 21% whole person impairment. In my opinion, there would be significant contributions to pre-existing condition [sic, from pre-existing conditions] and for the right shoulder, I think when the patient had the so-called work injury, she already noticed chronic massive rotator cuff tear, hence, there should be contribution for pre-existing condition of ½. The left shoulder certainly would be a similar argument, ½ contribution from pre-existing condition, being degeneration and constitutional wear and tear but on top of that, if the patient really had a payout on the left shoulder in the past, then we should deduct the 10% from the 21% which will leave behind 11% and then half of that will be due to the work injury which will leave behind 6%. For the right shoulder, half of it would be 10% and when the two are combined together, it will be a 15% whole person impairment.”
He added at [10c], when comparing his assessment with that of Dr Pillemer:
“The controversial thing is whether the patient has received a payout beforehand [for impairment of the left shoulder], if there is really a payout done regarding the injury in 2013 with a WCC reference 2658/15, then we should deduct 10% from the present impairment, then on top of that, the residual impairment still has to be deducted from [sic, for] pre-existing condition and that explains the difference in conclusion in our final permanent impairment assessment.”
When read together, these passages indicate that the Medical Assessor assessed the left shoulder at 21% whole person impairment, deducted ‘the 10%’ assessed by Dr Mastroianni in 2013 to yield 11%, and then deducted half of that for a ‘pre-existing condition, being degeneration and constitutional wear and tear’, to yield 6% whole person impairment.
In their submissions, both parties have proceeded on that interpretation, with which we agree.
Section 323(1) relevantly provides:
“… there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.”
The task of the Medical Assessor was, first, to determine whether there was any pre-existing injury, condition or abnormality, and second, whether it was contributing to the assessed impairment. If so, he was to assess the appropriate deduction.
Where frank injury is relied on, an injury, condition or abnormality will be ‘pre-existing’ if it occurred prior to the date of the frank injury. In this case, injury was alleged to have occurred gradually as a result of the nature and conditions of employment over the period of her employment with the respondent. That period was not specified by date in the Application to Resolve a Dispute, but Dr Pillemer, on whose opinion the worker relied, recorded that her employment commenced in July 2015. A date of injury was deemed by operation of the disease of gradual process provisions of the Workers Compensation Act 1987, and pleaded in the Application to Resolve a Dispute as 14 November 2019 (deemed date). It was that date which formed the basis of the referral for assessment.
In those circumstances, it was necessary to determine whether an injury, condition or abnormality existed prior to commencement of the nature and conditions of employment which caused the pleaded injury – that is, prior to July 2015.
Dr Pillemer considered:
“In my opinion the nature and conditions of her employment as well as the incident on 14 November 2019 would need to be regarded as a substantial contributing factor to the development of her symptoms, as well as I would suggest the main contributing factor to the aggravation of her condition.”
The Medical Assessor identified the 2013 work injury as being a pre-existing injury. As it pre-dated the commencement of employment in July 2015, he was correct to do so.
In order to find that it currently contributed to impairment, however, he had first to determine that, but for the 2013 injury, permanent impairment would now be less than it is: Ryder v Sundance Bakehouse [2015] NSWSC 526. No such determination is disclosed in his reasons. He does not appear to have turned his mind to that question. The making of a deduction in those circumstances demonstrates error, requiring that it be set aside.

Deduction for pre-existing degeneration and wear and tear

He also made a deduction for pre-existing ‘degeneration and constitutional wear and tear’.
To do so, he first had to identify the degeneration. He did not refer to any scans demonstrating pre-existing degeneration. He pointed to no evidence to justify a finding that there was degenerative disease of the left shoulder prior to July 2015. There was in the material before him a number of medical reports which referred to pre-existing degenerative disease, but he did not refer to the reasoning within them in the regard, and we are not in a position to know what he made of them. His reasons for concluding that there was pre-existing degeneration are not apparent. The failure to give reasons demonstrates error. The deduction for pre-existing degeneration must also be set aside.

Assessment of the Appeal Panel

The Appeal Panel is in a position to make its own assessment as to the availability and amount of any deduction without the need for re-examination.
In his Medical Assessment Certificate dated 9 July 2015, Dr Mastroianni recorded that the worker had injured her left shoulder while working on 29 December 2012 and reported it on
2 January 2013, which was the date of injury used for the purposes of the referral to him. The worker had provided him with an MRI scan of the left shoulder performed by Dr Gacs on
10 January 2013 which, according to Dr Mastroianni, demonstrated extensive tendonitis of the subscapularis and a full thickness tear of the supraspinatus tendon. He recorded that in March 2013 the worker came to arthroscopic left rotator cuff repair at the hands of orthopaedic surgeon, Dr Haber.
Dr Gacs’ report of the MRI is before us. She noted:
“Very extensive anterior and mid portion full thickness tear of the supraspinatus tendon is seen measuring 3cm on the coronal view and 3.3cm on the sagittal view. Only the posterior fibres are intact. Fatty atrophy of most of the supraspinatus is noted. The infraspinatus tendon is also thin. Features are consistent with partial tear. The teres minor tendon is intact. A large effusion with debris is noted in the subacromial/subdeltoid bursa. There is mild fatty atrophy of the infraspinatus.
Very severe arthritic change is present in the AC joint with large osteophytes and synovial cysts. The synovial cyst of the AC joint extends posteriorly and is compressing the musculo-tendinous junction of the supraspinatus. Further synovial cysts are compressing the more anterior aspect of the supraspinatus space.”
She recorded the following impression, “Extensive tendinosis of the subscapularis. Extensive full thickness tear of the anterior and mid portion of the supraspinatus. Partial tear of the infraspinatus. Fatty atrophy of the supraspinatus and infraspinatus. Severe osteoarthritis of the AC joint with synovial cysts.”
Dr Raper’s report of an X-ray and ultrasound of the left shoulder performed on
31 December 2012 is also before us. He reported a full thickness ‘chronic tear’ of the left supraspinatus tendon, a high riding left humeral head and ‘more recent full thickness tear’ of the infraspinatus tendon.
In our view, the fatty atrophy of the supraspinatus and infraspinatus, the severe osteoarthritis of the AC joint, the chronic tear of the left supraspinatus tendon, and the high riding humeral head, by their nature, are likely to have been longstanding conditions. They are unlikely to have been caused by injury as recently as December 2012. In any event, they were pre-existing conditions for the purposes of assessing impairment resulting from injury on
14 November 2019 (deemed date) due to the nature and conditions of employment from
July 2015.
We agree with the view expressed by Dr Pillemer in his report dated 31 October 2022 that the 2013 injury aggravated pre-existing degenerative change in the left shoulder. The 2013 injury itself was a pre-existing injury for the purposes of assessing impairment resulting from injury on 14 November 2019 (deemed date).
On her statement evidence, the worker made a good recovery after the 2013 injury, eventually returning to pre-injury duties.
Even though arthroscopic rotator cuff repair was effective in ameliorating the effects of the 2013 injury and the pre-existing conditions which were aggravated by it, that surgery was not capable of totally repairing the kind of damage to the subscapularis and supraspinatus tendons evidenced by the MRI, or the longstanding fatty atrophy, osteoarthritis or chronic tearing which it aggravated. That damage is likely to have persisted to some degree, even if asymptomatic, rendering the worker susceptible to further damage, such as that which occurred as a result of the nature and conditions of employment from July 2015, particularly while using the left shoulder to compensate for the effects of injury to the right shoulder on
14 November 2019, culminating in left shoulder replacement surgery in October 2021.
Radiologist Dr Linklater performed an MRI study of the left shoulder on 4 May 2020. Among his conclusions were the following:
“Evidence of prior repair of the LEFT supraspinatus and infraspinatus tendons, with full thickness re-tear of the tendons, approximately 2cm retraction of the attenuated supraspinatus tendon edge and 2.5cm retraction of the poor quality infraspinatus tendon edge and severe infraspinatus and moderate supraspinatus muscle atrophy.”
The re-tearing of the tendons demonstrated by this MRI, in all likelihood resulted from both activity at work and the persistence of pathology which resulted from, and to some extent preceded, the 2013 injury.
Current impairment results from left shoulder replacement surgery in October 2021. In our view, the surgery itself was made necessary by a combination of the tendon damage, fatty atrophy and osteoarthritis evident in 2013, notwithstanding partial amelioration by Dr Haber, and the subsequent deterioration of the left shoulder due to compensating for injury to the right. But for the pre-existing conditions of the left shoulder in 2013, and the injury which occurred then, the rate and extent of deterioration after July 2015 is likely to have been less, shoulder replacement surgery is unlikely to have been necessary by October 2021, and current impairment would be less than it now is. We are satisfied that the pre-existing conditions of the left shoulder in 2013, and the 2013 injury itself, contribute to current impairment.
The amount of the contribution is difficult to determine, because the extent to which the pre-existing conditions and injury of 2013 have accelerated change that might otherwise have occurred due to the nature and conditions of employment, and contributed to the need for surgery, is unclear. In our view, a deduction of 10% is not at odds with the available evidence.
A deduction of 10% is available and appropriate from the assessment of 21% for the left shoulder, yielding 19% whole person impairment. That is so, even though Dr Mastroianni did not make a deduction for pre-existing conditions when assessing impairment resulting from the 2013 injury. He was not considering a situation where, as here, impairment results directly from left shoulder arthroplasty. For the reasons expressed, we consider that the 2013 injury and the conditions which preceded it contributed to the need for arthroplasty, and currently contribute to impairment.
The Medical Assessment Certificate of Medical Assessor Ho is revoked and replaced by the attached Medical Assessment Certificate.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W8636/23
Applicant:	Sandra De Fries
Respondent:	The Disability Trust

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 Ho 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)
Right shoulder	14 November 2019	Figure 16-40, 43 and 46. Table 16-27	19%	½	10%
Left shoulder	14 November 2019	Figure 16-40, 43 and 46. Table 16-27	11%	1/10^th	10%
Total % WPI (the Combined Table values of all sub-totals)					19%

[2024] NSWPICMP 457

11 July 2024