Edwards v Optimise Energy Solutions Pty Ltd
[2025] NSWPICMP 121
•25 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Edwards v Optimise Energy Solutions Pty Ltd [2025] NSWPICMP 121 |
| APPELLANT: | Roy John Edwards |
| RESPONDENT: | Optimise Energy Solutions Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 25 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) carried sufficient examination of the appellant to determine whether the degree of the appellant’s permanent impairment was fully ascertainable; whether MA erred by finding appellant had not achieved maximum medical improvement (MMI); Held – Appeal Panel held MA did not conduct an adequate examination of the appellant to determine whether the appellant had achieved MMI and consequently MA erred by finding appellant had not achieved MMI; appellant re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 October 2024 Roy John Edwards, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin Alexander Mitchell, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 October 2024.
The appellant relies on the ground for appeal listed at s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), specifically, that 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
On 28 January 2022 the appellant, while working for Optimise Energy Solution Pty Ltd, the respondent, lifted a box containing old fittings that resulted in his experiencing pain in his left shoulder and arm. His general practitioner referred him to shoulder and elbow specialist Dr Benjamin Cass, who diagnosed a ruptured distal biceps tendon and who, in October 2023, performed a left biceps reconstruction on the appellant, using Allograft. The appellant made a good recovery from this surgery, although he had residual stiffness in his left shoulder.
The appellant’s rehabilitation from that surgery involved him wearing a sling for three months during which period he developed right shoulder pain. Imaging was done that revealed substantial arthritis in his right shoulder. Dr Cass recommended he have a right total shoulder replacement and this was done on 2 March 2023.
On 11 May 2023 the appellant tripped and suffered a periprosthetic fracture of the right humerus. Dr Cass conducted surgery to repair this on 11 May 2023 involving a strut graft, plate and screws that was done.
The appellant claimed compensation from the respondent for permanent impairment from his injury. He relied on reports of Dr Cass dated 12 August 2022, 25 January 2023, 9 February 2023 and 27 Octobe4 2023, and reports of Dr David Millons dated 24 April 2023 and 14 December 2023. In his report 14 December 2023, Dr Millons’ advised that he assessed the degree of the appellant’s permanent impairment from his injury was 29% whole person impairment (WPI) comprising 23% WPI relating to his right shoulder, 5% WPI relating to his left shoulder, and 3% WPI relating to scaring.
In a further report dated 31 January 2024, which post-dated the applicant’s claim for permanent impairment compensation, Dr Cass noted that the appellant had “constitutionally based attritional changes in the shoulder prior to the consequential injury that subsequently developed as a result of him using his right arm more to protect his problematic left upper limb”. Dr Millions advised that “under the circumstances, it would be reasonable to make a 1/10 deduction in relation to the right shoulder assessment”. Dr Millions consequently revised his assessment of the appellant’s permanent impairment relating to his injury to 21% WPI. When combined with the 5% WPI he assessed relating to the left shoulder and the 3% WPI for scarring, Dr Millons’ revised assessment of the appellant’s degree of permanent impairment from his injury reduced to 27% WPI.
Following receipt of the appellant’s claim, the respondent’s solicitors arranged for the appellant to be examined orthopaedic surgeon, Associate Professor Paul Miniter on 26 February 2024. In a report dated 4 April 2024, Associate Professor Miniter advised that the appellant’s condition had not stabilised and had not reached maximum medical improvement. The respondent’s solicitors had asked Associate Professor Miniter to conduct an assessment of the appellant’s permanent impairment if Associate Professor Miniter was of the view the appellant had reached maximum medical improvement. As a consequence of his having not formed that opinion, Associate Professor Miniter consequently did not assess the degree of the appellant’s permanent impairment.
On 23 April 2024 the respondent’s insurer wrote to the appellant in response to his claim for compensation for permanent impairment advising him that based on the report of Associate Professor Miniter dated 4 April 2024 it considered that the degree of his permanent impairment resulting from his injury was not currently capable of assessment.
This prompted the appellant to file with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 18 June 2024 by which he sought the Commission determine his claim for compensation for permanent impairment. On 11 July 2024 a delegate of the President of the Commission issued a referral to the Medical Assessor to assess the medical disputes between the parties relating to the appellant’s claim for compensation for permanent impairment from his injury.
The Medical Assessor examined the appellant on 7 August 2024 to conduct that assessment. As said, he issued the MAC on 4 September 2024 in response to the referral. In that, at Part 8c, the Medical Assessor said that the appellant’s “right shoulder has not yet reached maximum medical improvement”. The Medical Assessor said at Part 9 that the appellant “right shoulder continues to be high symptomatic and has not yet recovered sufficiently, following the more recent plating surgery required to manage the periprosthetic fracture he sustained after his total reverse shoulder replacement procedure was undertaken”.
The only findings the Medical Assessor recorded from his examination of the appellant
were that “the appellant had a heavy stature weighing 120 kilograms for his height of 180 centimetres”.It is apparent from the MAC that the Medical Assessor considered that the appellant’s permanent impairment from his injury was not fully ascertainable as a consequence of his conclusion that the appellant had not attained maximum medical improvement. Further, it also apparent that as consequence of his concluding that, he declined to make an assessment of the degree of the appellant’s permanent impairment from his injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC contained a demonstrable error and, in order to correct that error, the Appeal Panel required further clinical data that could only be obtained from an examination of the appellant. The Appeal Panel appointed one of its members, namely Medical Assessor Alan Home to conduct that examination, which he did 10 February 2025. Medical Assessor Home subsequently provided his report to the Appeal Panel, which is copied below under the heading findings and reasons.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor’s conclusion that he had not achieved maximum medical improvement is wrong and contrary to the evidence. The appellant submitted that the Medical Assessor formed his conclusion without having conducted an examination of him. The appellant highlighted that Dr Cass reported, following his examination of him on 10 May 2024, that whilst the outcome of his right shoulder surgery had “not been great” he was nevertheless stable “at maximum medical improvement”. The appellant submitted that the Medical Assessor’s conclusion is inconsistent with that evidence of Dr Cass and the Medical Assessor ought to have engaged with that opinion of Dr Cass in explaining his opinion that he had not achieved maximum medical improvement.
The appellant also highlighted that Dr Millons had formed the opinion that he had achieved maximum medical improvement.
The appellant submitted that the Medical Assessor did not record having examined his range of movements of his shoulders. The appellant submitted that the Medical Assessor consequently did not comprehend the degree of his permanent impairment at the date of the assessment and did not therefore have a benchmark against which he could consider whether his condition might improve.
The appellant submitted that the Medical Assessor did not provide adequate reason for his opinion that he had not reached maximum medical improvement. The appellant submitted that the Medical Assessor did not explain why there would be improvement in his right shoulder.
In reply, the respondent submitted that the Medical Assessor was not bound by the observations or reports of Dr Cass or Dr Millons and that his task was to conduct his own independent clinical review of the medical evidence and examine the appellant and come to his own conclusion.
The respondent submitted that the Medical Assessor did engage with opinion of Dr Cass and Dr Millons and made brief comments regarding their reports.
The respondent submitted that whilst the Medical Assessor did not include in the MAC any measurements of the appellant’s range of motion of his shoulders, that did not of itself indicate that the Medical Assessor did not examine the appellant’s range of motion of his shoulders. The respondent further submitted that because the Medical Assessor considered the appellant had not achieved maximum medical improvement he was not required to obtain a benchmark range of movement the appellant’s shoulder movement.
The respondent submitted that the Medical Assessor explained his opinion that the appellant had not achieved maximum medical improvement which was that the appellant had a history of significant right shoulder pain with reduced movement and that the appellant was highly symptomatic and had not recovered sufficiently following recent surgery.
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.
It is not apparent from the MAC, in the Appeal Panel’s view, that the Medical Assessor conducted a thorough examination of the appellant. Specifically, it not apparent that he examined the appellant’s shoulders. His only finding from his examination of the appellant related to the weight and height of the appellant.
Absent the Medical Assessor having conducted an examination of the appellant’s shoulders, including the extent to which the appellant was able to move his shoulders and elbows, it can not be known whether as of the date of the Medical Assessor’s examination of the appellant the appellant’s permanent impairment was fully ascertainable. Potentially, given the surgery that the appellant had, he may have developed capsulitis in his right shoulder which may have taken up to 18 months to resolve, in which case he would not have achieved maximum medical improvement and his permanent impairment would not have been fully ascertainable. But that simply cannot be known from what is recorded in the MAC. Either the Medical Assessor failed examined the appellant to ascertain that, or if he did, he failed to record his findings from his examination. Either way, that was an error on the part of the Medical Assessor, such that the MAC contains a demonstrable error.
Further, noting that the appellant’s treating surgeon, Dr Cass, considered that the appellant had achieved maximum medical improvement, the Appeal Panel considers that the Medical Assessor ought to have engaged with that opinion in explaining why he came to a contrary view.
The Appeal Panel considered that in order to determine whether the appellant had achieved maximum medical improvement, and, if so, what the degree of his permanent impairment is from his injury, it needed to examine the appellant to and Medical Assessor Home was appointed to conduct that task. His report to the Appeal Panel is as follows:
“APPELLANT: Roy John EDWARDS
MATTER NUMBER: M1-W22658/24
MEDICAL PANEL: Mr Marshall Douglas, Dr Drew Dixon, Alan Home
RESPONDENT: Optimise Energy Solutions Pty Ltd
DATE OF ACCIDENT: 28 January 2022
ASSESSMENT: 10 February 2025
Assessor: Panel member, Dr Alan Home
Mr Edwards attended the examination unaccompanied.
HISTORY
Mr Edwards states that he sustained injuries to his left upper limb whist employed as a lighting consultant for Optimise Energy Solutions. He tells me he was lifting a box containing old fittings on 28 January 2022. He recalls experiencing pain in his left shoulder and arm. He was subsequently seen by his general practitioner. He was referred for physical therapy.
He attended Dr Cass. A diagnosis of a ruptured distal biceps tendon was made.
Mr Edwards confirms that he underwent a left biceps reconstruction using Allograft in October 2023 under the care of Dr Cass. He reports that he made a good recovery from his left elbow surgery, but was left with residual stiffness at his left shoulder.
During his recovery, his left arm was treated in a sling for a total of three months, during which time he developed pain in his right shoulder. He attributed this to preferential use of his right arm for activities of daily living.
Subsequently, he attended his doctor in relation to his right shoulder condition. He underwent corticosteroid injections on two occasions. Imaging of the right shoulder, performed in August 2022 demonstrated marked degenerative changes with narrowing of the glenohumeral joint. Ultrasound examination of the right shoulder demonstrated supraspinatus tendinitis and bursal thickening. Repeat x-rays of the right shoulder were performed on 7 February 2023.
Mr Edwards confirms that Dr Cass recommended a right total shoulder replacement. That surgery was performed on 2 March 2023. He was subsequently treated in a sling for six weeks.
After coming out of the sling, he managed to return to tenpin bowling. On 11 May 2023, he tripped at ten-pin bowling and suffered a periprosthetic fracture of the right humerus, for which he required further surgical management with strut graft, plate and screws, performed on 11 May 2023. Despite a long period of physical therapy, his right shoulder remains stiff. His recovery has plateaued over recent months. Indeed, if anything, his shoulder stiffness has increased slowly over time.
He reports the current use of occasional Paracetamol analgesia. There was no other medication required for the management of his upper limb complaints.
He continues to attend Dr Cass for periodic review at six month intervals. No further surgery is planned.
CURRENT SYMPTOMS
Mr Edwards reports an awareness of stiffness to the left shoulder. He has regained a good range of motion at the left elbow. He has gained good strength across is left elbow at the site of the biceps repair.
At the right shoulder, there is marked stiffness. There is no pain at rest. There is pain precipitated by simple right shoulder motion. He cannot load his right arm. He cannot sleep over his right side at night. He is able to steer his motor vehicle using his right hand near the base of the wheel and steering predominantly with his left.
FUNCTIONAL CAPACITY AND REPORTED TOLERANCES
He is right hand dominant.
He limits lifting with his right hand to a small bag. He is able to lift moderate weight with his left.
SOCIAL HISTORY
He currently lives on his own. He is divorced with one daughter aged 42.
At his home in Mosman, he is able to perform most light bench height cleaning. He hangs washing on a rack. He has an external cleaner attending once monthly to perform heavy domestic chores.
He has not been able to return to his previous active hobby of playing golf and squash.
PAST MEDICAL HISTORY
He has a past history of hypertension. There is no prior history of shoulder or elbow complaints.
VOCATIONAL HISTORY
He continues to undertake some project work for a lighting company.
PHYSICAL EXAMINATION
Mr Edwards is a 70 year old, standing 178cm and weighing 120kg.
Examination of the cervical spine reveals symmetrical spinal motion with mild stiffness in lateral flexion consistent with his age.
Left upper extremity
At the left shoulder, active motion is measured by goniometer methods as follows:
Shoulder Movements
Active ROM Measured
LEFT °
Flexion
110
Extension
50
Adduction
40
Abduction
80
Internal Rotation
50
External Rotation
60
At the left elbow, active motion measured 10° extension lag to 140° flexion. There is MRC grade 5/5 power of resisted supination and flexion at the left elbow, consistent with a solid biceps tendon repair.
Right upper extremity
At the right shoulder, active motion is measured by goniometer methods as follows:
Shoulder Movements
Active ROM Measured
RIGHT °
Flexion
30
Extension
30
Adduction
0
Abduction
50
Internal Rotation
30
External Rotation
20
At the right elbow, active motion measured 0° extension to 140° flexion. Forearm pronation and supination are both 80° bilaterally.
Scarring
There is a healed 24cm x 2mm pale scar overlying the distal left arm extending across the left elbow to the proximal forearm, consistent with the previous biceps tendon reconstruction surgery. There is no trophic change. There is no contour defect. The scar is only visible with close inspection.
At the right shoulder, there is a 24cm long x 1.5cm diameter pale scar, slightly depressed in contour with atrophic change. There is no tethering. The scar is seen at distance. There are no visible suture marks.
DIAGNOSIS AND CAUSATION
In the subject accident the worker suffered a left biceps rupture and left shoulder soft tissue injury for which he required left elbow biceps tendon reconstruction using Allograft. He has made a good recovery from that surgery. There is residual stiffness at the left shoulder.
At the right shoulder, there has been aggravation of underlying severe arthritis due to the preferential use of the right arm during his recovery from left arm surgery. He has required a total shoulder replacement. There is marked stiffness at the right shoulder.
His recovery was complicated by a periprosthetic fracture, for which he required further surgery.
PERMANENT IMPAIRMENT
Impairment is determined using the methodology set out in the Workers Compensation NSW Guidelines 4th Edition and the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th Edition).
Left upper extremity
Shoulder
Using the range of motion method, Figures 16-40, 16-43 and 16-46, AMA5, pages 476, 477 and 479 respectively. Impairment is determined at set out in the table below:
Shoulder Movements
Active ROM Measured
LEFT °
Upper Extremity Impairment
AMA Guides (5th Ed)
Flexion
110
5% (Fig 16-40, pg 476)
Extension
50
0% (Fig 16-40, pg 476)
Adduction
40
0% (Fig 16-43, pg 477)
Abduction
80
5% (Fig 16-43, pg 477)
Internal Rotation
50
2% (Fig 16-46, pg 479)
External Rotation
60
0% (Fig 16-46, pg 479)
Total UE Impairment
12% UEI
Elbow
There is restricted elbow motion with a 10° extension lag attracting a 1% upper extremity impairment rating.
The total upper extremity impairment rating for the left upper extremity is 13%.
A 13% upper extremity impairment rating converts to a whole person impairment rating of 8% using Table 16-3, AMA5, page 439 to convert upper extremity impairment to whole person impairment.
Right upper extremity
Shoulder
At the right shoulder, there has been a total shoulder replacement. This attracts a 24% upper extremity impairment rating using Table 16-27, AMA5, page 506.
There is further impairment due to restricted motion at the shoulder, assessed using Figures 16-40, 16-43 and 16-46, AMA5, pages 476, 477 and 479 as set out in the table below.
Shoulder Movements
Active ROM Measured
RIGHT °
Upper Extremity Impairment
AMA Guides (5th Ed)
Flexion
30
10% (Fig 16-40, pg 476)
Extension
30
1% (Fig 16-40, pg 476)
Adduction
0
2% (Fig 16-43, pg 477)
Abduction
50
6% (Fig 16-43, pg 477)
Internal Rotation
30
4% (Fig 16-46, pg 479)
External Rotation
20
1% (Fig 16-46, pg 479)
Total UE Impairment
24% UEI
Combining 24% with 24%, there is a combined upper extremity impairment rating of 42% (Combined values chart AMA%, page 604).
A 42% upper extremity impairment rating converts to a whole person impairment rating of 25% using Table 16-3, AMA5, page 439 to convert upper extremity impairment to whole person impairment.
I have considered a deduction for the extent of underlying degenerative change.
I note that the x-ray imaging of the right shoulder performed in August 2022, preceding the reconstruction, demonstrated degenerative change in the glenohumeral joint.
Elbow
There is no impairment at the right elbow.
Scarring
Scarring is rated using the TEMSKI scale in the Workers Compensation Guidelines, Table 14.1, page 74 as follows:
·The claimant is conscious of the scars
·There is some colour contrast with the surrounding skin as a result of pigmentary and other change
·The claimant is able to easily locate the scar or skin condition
·Trophic changes are evident to touch
·There are no visible suture marks
·The location of the scar is usually hidden by clothing, the left elbow scar is not clearly visible
·There is minor contour defect (right shoulder scar)
·There is no effect on any activities of daily living arising from the scar itself
·There is no treatment required
·There is no adherence
Using the principle of best fit a 1% WPI impairment arises.”
The Appeal Panel considers that Medical Assessor Home obtained a detailed and relevant clinical history and conducted a thorough examination of the appellant. The Appeal Panel adopts the history Medical Assessor Home set out in his report and also adopts his findings from his examination of the appellant. The Appeal Panel also agrees with his diagnosis of the appellant’s injury. The Appeal Panel agrees with the ratings that Medical Assessor Home has made relating to the appellant’s impairment of his left upper extremity, right upper extremity and his impairment from scaring, and also adopts them.[1]
[1] CocoCola Euro Pacific Partners ABI Pty Ltd v Pombinho [2024] NSWCA191 at [88].
As Medical Assessor Home revealed in his report to the Appeal Panel his ratings of the appellant’s impairment relating to his left upper extremity convert to 8% WPI and with respect to his right upper extremity convert to 25% WPI. The Appeal Panel also accepts the Medical Assessor finding relating to the appellant’s impairment from scaring of 1% WPI for the reasons Medical Assessor Home revealed in his report to the Appeal Panel.
The Appeal Panel notes that the x-ray imaging of the appellant’s right shoulder done in August 2022 revealed marked degenerative change in the glenohumeral joint. Given the extent of the degeneration revealed by that study, it is likely that all of the degeneration was existing in the appellant’s shoulder immediately preceding the date on which he suffered his primary injury on 28 January 2022. There was simply insufficient time for that degeneration to have occurred subsequent to the appellant suffering his primary injury.
Noting that the appellant’s impairment with respect to his right shoulder has been assessed by reference to the fact that he has an artificial joint and has restricted range of movement of his right shoulder, the Appeal Panel considers that the pre-existing degeneration he had in his right shoulder contributes a proportion of his permanent impairment relating to his injury. This is because without that degeneration he would not have needed a shoulder replacement and without that degeneration the restricted movement of his shoulder would not be as extensive as what it is now.
It is however difficult to determine the exact proportion that this pre-existing degeneration contributes to the appellant’s impairment of his right upper extremity. In accordance with s 323(2) of the 1998 Act, the Appeal Panel consequently assumes that the deductible proportion for the purpose of s 323(1) is 10%. Making that presumption is not at odds with the evidence, that evidence being that at the time of his injury the appellant had experienced no issue with his right shoulder and the symptoms that manifested from the degeneration in his right shoulder occurred as a consequence of his preferential use of his right upper limb during recovery from his left elbow surgery. It is likely the case that at some point in time he would have required a right shoulder replacement but without the precipitation of symptoms consequent upon his using his right shoulder more during his recovery from his left surgery, it is unknown at what time what would have occurred.
The Appeal Panel has also considered whether a portion of the appellant’s permanent impairment of his right upper extremity should be attributed to his fall on 11 May 2023 that caused a periprosthetic fracture. The Appeal Panel finds that it is not possible to determine whether this subsequent fracture increased the extent of right shoulder stiffness. No apportionment has been made.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 September 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: | W22658/24 |
Applicant: | Roy John Edwards |
Respondent: | Optimise Energy Solutions 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 Robin Alexander Mitchell 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) |
| Left upper extremity | 28/01/2022 | Chapter 2 | Figures 16-40, 16-43, 16-46 Table 16-3 | 8% | - | 8% |
| Right upper extremity | Chapter 2 | Figures 16-40, 16-43, 16-46 Table 16-27 | 25% | 1/10 | 23% | |
| Scarring | Chapter 14 | Table 14.1 | 1% | - | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 30% | |||||
0