Evergreen Lifecare Limited v Offner

DETERMINATION OF APPEAL PANEL
CITATION:	Evergreen Lifecare Limited v Offner [2022] NSWPICMP 363
APPELLANT:	Evergreen Lifecare Limited
RESPONDENT:	Kate Offner
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Dr Drew Dixon
MEDICAL ASSESSOR:	Dr Gregory McGroder
DATE OF DECISION:	16 September 2022
CATCHWORDS:	wORKERS cOMPENSATION - Assessment by Medical Assessor (MA) of left upper extremity (shoulder) and cervical spine; appellant submitted that MA incorrectly calculated upper extremity impairment (UEI) based on the recorded left shoulder range of motion; Panel satisfied that the MA made a demonstrable error in either inserting 180 degrees instead of 80 degrees or in his calculation of upper extremity impairment for restricted range of motion in the shoulder; Panel considered that it was open to the MA to conclude on the evidence that no deduction should be made in respect of the injury in the motor vehicle accident in 2014; re-examination; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 May 2022 Evergreen Lifecare Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
28 April 2022.
The respondent to the appeal is Kate Offner (Ms Offner).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Offner sustained an injury to her cervical spine and left upper extremity shoulder on
20 June 2016 in the course of her employment as an assistant in nursing when she was helping to move a patient.
The matter was referred to the MA, Rob Kuru, on 18 March 2022 for assessment of person impairment of the cervical spine and left upper extremity (shoulder).
The MA examined Ms Offner on 29 March 2022 and assessed 0% whole person impairment (WPI) of the cervical spine and 16% WPI upper extremity impairment of the left shoulder. Therefore, the total WPI was assessed as 16% WPI as a result of the injury on
20 June 2016.

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 WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that Ms Offner be re-examined by a MA who is a member of the Appeal Panel. However, Ms Offner submitted that she should be referred back to the MA for a further ROM assessment of the left shoulder to be undertaken in order to determine whether the MA’s stated ROM calculations were correct, particularly in the absence of a worksheet.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Ms Offner to undergo a further medical examination because there was insufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Drew Dixon of the Appeal Panel conducted an examination of Ms Offner on
7 September 2022 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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’s submissions include the following:
(a)    the MA failed to correctly apply AMA 5 (specifically page 476 Figure 16-40, page 477 Figure 16-43, and page 479 Figure 16-46 in relation to assessment of shoulder range of motion) and the Guidelines (specifically Parts 1.27 and 1.28 in relation to a deduction) and therefore the assessment was made on the basis of incorrect criteria;
(b)    the MA has erred for the following reasons:
(i)by incorrectly calculating the upper extremity impairment (UEI) based on Ms Offner’s recorded left shoulder range of motion, which impacted on the total assessment of WPI;
(ii)by incorrectly recording in the MAC that the Ms Offner had sustained nil previous or subsequent accident, injuries or condition; and/or
(iii)by not providing any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality was appropriate.
(c)    the MA, on page 4 of the MAC, recorded:
“Restricted range of motion in the shoulder is assessed according to AMA-5, page 476 Figure 16-40, page 477 Figure 16-43, and page 479 Figure 16-46, giving a 14% upper extremity impairment (UEI) for restricted range of motion in the shoulder. Diagnosis of injury to the upper trunk of the brachial plexus has been made. This is assessed according to AMA-5, page 482 Table 16-10 as a grade 3 sensory deficit (assessed at 60%). According to AMA-5, page 490, Table 16-14 the maximum assessment for upper trunk plexus sensory deficit or pain is 25% UEI. 60% of 25% gives 15%. 15% UEI combined with 14% UEI gives 27% upper extremity impairment which according to AMA 5, page 439, Table 16-3 converts to 16% whole person impairment”.
(d)    the MA erred in his calculation of UEI relating to the left shoulder based on the active range of shoulder motion recorded;
(e)    the UEI relating to the left shoulder range of motion ought to have been assessed as follows, pursuant to AMA 5:
AMA5 Ref.   Movement            Left               Left UEI   Right          Right UEI
Page 476      Flexion                180°               0%         180°            0%
Figure 16-40 Extension            30°               1%           50°             0%
Page 477      Abduction            60°               6%           180°           0%
Figure 16-43 Adduction            30°               1%             30°             1%

Page 479 Internal rotation       80°                0%            80°           0%
Figure 16-46 External rotation 70°                0%            80°            0%
Subtotals    8%   1%

Total Left UEI 8% - 1% = 7%

(f)    the 7% UEI combines with 15% UEI assessed by the MA for the injury to the upper trunk of the brachial to equal 21% UEI. Pursuant to AMA 5, page 439, Table 16-3, 21% UEI converts to 13% WPI;
(g)    the MA has fallen into error in his assessment of the UEI relating to Ms Offner’s left shoulder motion and ought to have assessed 7% UEI pursuant to AMA 5;
(h)    the following comments were made by the MA in the MAC:
(i)on page 2 of the MAC, in relation to the details of any previous or subsequent accidents, injuries or condition, the MA records “Nil”;
(ii) on page 4 of the MAC, the MA answers “no” in response to the question as to whether there is any proportion of loss of efficient use or impairment or whole person impairment due to a previous injury, pre-existing condition or abnormality, and
(iii) on page 5 of the MAC, the MA again records that there has been “Nil” previous injuries, pre-existing conditions or abnormality and states “There is no deductible proportion”.

(i)    the Discharge Referral of Gosford Hospital dated 5 February 2014, (page 39 of the Reply) recorded that Ms Offner “sustained injury in a 2 vehicle MVA where she was rear ended” and complained of “pain neck”;
(j)    in the Motor Accident Personal Injury Claim Form dated 10 October 2014, (page 41 of the Reply), Ms Offner reported that she had sustained “whiplash, lower back pain constant pain in rotator cuff” and referred to the injuries affecting “repetitive motions with my left arm…”. The medical certificate attached to the form, completed by Dr Chris Allan, (Reply page 57) recorded that Ms Offner suffered from “persisting cervicogenic headaches” and “persisting sensory symptoms (at the) left arm”. Dr Allan stated that Ms Offner had “symptoms consistent with rotator cuff problem” and referred to left arm weakness;
(k)    the consultation notes of Kincumber Doctors (page 61 of the Reply) dated
11 February 2014 (page 87 of the Reply) recorded that Ms Offner was involved in a motor vehicle accident and that the “left shoulder particularly painful – tender over supraspinatus tendon/pain on resisted abduction”. On 20 June 2014 (page 86 of the Reply) it was noted that Ms Offner experienced sudden left shoulder pain after reaching behind herself and she had “pain with resisted int rotation and abduction some apprehension with ext rot/abduction no clunking”;
(l)    the Discharge Referral, Motor Accident Personal Injury Claim Form and consultation notes were clear evidence of Ms Offner having a pre-existing injury, condition or abnormality;
(m)     the MA has fallen into error by recording that there was no previous accident, injury or condition and ought to have concluded, based on the available evidence, that Ms Offner had a pre-existing condition, injury or abnormality;
(n)    the MA has fallen into error by failing to provide any or any adequate reasons as to why it was not appropriate to provide a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act, and
(o)    for the reasons noted above, the MAC contains a demonstrable error and/or is based on incorrect criteria. The Appeal Panel should review the MAC and provide a corrected assessment of WPI pursuant to AMA 5 and if appropriate, a deduction for pre-existing condition, injury or abnormality pursuant to s 323 of the 1998 Act.

Ms Offner’s submissions include the following:
(a)    the MA found a 14% UEI for restricted range of motion in Ms Offner’s injured shoulder. When combined with the assessment for the sensory deficit by way of the brachial plexus injury, the upper extremity impairment combines to an assessment of 27% UEI which then converts to an assessment of WPI of 16% WPI, as expressed by the MA and consistent with AMA 5;
(b)    the MA's 16% WPI assessment of the left upper extremity (shoulder) was less than the assessment of 19% WPI that was made by Dr Patrick referable to the left upper extremity (shoulder), and less than the assessment of 17% WPI referable to the left upper extremity (shoulder) as was assessed by Dr Sharp who saw Ms Offner on three occasions on behalf of the insurer;
(c)    in regard to those other medical opinions, the MA stated:
"With respect to the report by Dr Patrick dated 08/09/2021, I found a slightly better range of motion in the shoulder accounting for the difference in assessment of the left upper extremity ... With respect to the report by
Dr Sharpe dated 25/11/2021, I agree with his assessment that the injury relates to the left shoulder and upper trunk of the brachia! plexus rather than to the cervical spine. There is slightly greater range of motion in the shoulder but I have assessed a slightly higher percentage for sensory impairment.”
(d)    the MA clearly articulated his reasons for the difference in his opinion to the other medico-legal providers, and the reason as to why he arrived at an assessment of 14% UEI in relation to the worker's diminution in range of motion;
(e)    in the event that there was found to be error in the MA's calculations, which is not conceded, Ms Offner ought be referred back to the MA for a further ROM assessment of the left shoulder to be undertaken in order to determine whether the MA’s stated ROM calculations are correct, or whether the 14% UEI that he expressed to have found is correct as is contended by Ms Offner, particularly in the absence of a worksheet;
(f)    in respect to the purported failure by the MA to make any relevant deduction under s 323, neither Dr Patrick nor Dr Sharp made any such deduction;
(g)    it was entirely appropriate for the MA to also refrain from making any deduction under s 323, particularly where clearly there was no such competing issue even raised between the parties;
(h)    in any event, at paragraph 11 of his report, the MA has clearly articulated that in answer to the question as to whether any deduction is appropriate, that nil such deduction was appropriate, and
(i)    as per the decision in Cole v Wenaline [2010] NSWSC 78; "Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, 'irrespective of outcome', contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality”. Both Drs Patrick and Sharp found that there was no evidence of any such contribution from the motor vehicle accident.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the delegate has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

The MAC

Under “History relating to the injury”, the MA wrote:
“On the date of injury, Ms Offner was at work as an Assistant in
Nursing doing night shift. As she was helping a patient, she had her left arm locked
through the patient’s arm to move him. As he pulled down on her arm, she sustained a traction injury to her left arm and had immediate pain in her shoulder and headache.
…
Details of any previous or subsequent accidents, injuries or condition: Nil”.
Under “Findings on Physical Examination”, on page 3 of the MAC, the MA wrote:
“Active range of motion in the shoulders is assessed as follows:
MOVEMENT   LEFT   RIGHT
Flexion   180°   180°
Extension   30°   50°
Abduction   60°   180°
Adduction   30°   30°
Internal rotation   80°   80°
External rotation                    70°   80°”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Ms Offner sustained a traction injury to her left arm and subsequently developed pain around the shoulder girdle and restricted range of motion in her shoulder. Investigations have not demonstrated significant structural abnormality but nerve conduction study is suggestive of injury to the upper trunk of the brachial plexus”.
At 8 e of the MAC, the MA wrote: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No”.
At 10 b of the MAC, the MA wrote:
“Restricted range of motion in the shoulder is assessed according to AMA-5, page 476 Figure 16-40, page 477 Figure 16-43, and page 479 Figure 16-46, giving a 14% upper extremity impairment for restricted range of motion in the shoulder. Diagnosis of injury to the upper trunk of the brachial plexus has been made. This is assessed according to AMA-5, page 482 Table 16-10 as a grade 3 sensory deficit (assessed at 60%). According to AMA-5, page 490, Table 16-14 the maximum assessment for upper trunk plexus sensory deficit or pain is 25% UEI. 60% of 25% gives 15%. 15% UEI combined with 14% UEI gives 27% upper extremity impairment which according to AMA-5, page 439, Table 16-3 converts to 16% whole person impairment.
According to AMA-5, page 392, Table 15-5 I have assessed the cervical spine as Cervical Category I DRE, 0% whole person impairment. I did not make examination findings consistent with specific muscle injury or detect muscle guarding related to the cervical spine. Symptoms which could be construed as non-verifiable radicular complaints have been assessed as injury to the upper trunk of the brachial plexus. I noted a symmetrical range of cervical movements.”
At Part 11 of the MAC, the MA wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Nil.
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) Nil.
c. There is no deductible proportion.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Discussion

The Appeal Panel reviewed the evidence in this matter.

Left shoulder assessment

The appellant submitted that MA incorrectly calculated the upper extremity impairment (UEI) based on Ms Offner’s recorded left shoulder range of motion, which impacted on the total assessment of WPI.
The Appeal Panel considered that it was likely because both IMEs found significant restriction of flexion in their examinations, that the MA had made an error in the measurements he recorded in the MAC in respect of flexion and had inserted 180 degrees instead of 80 degrees. If 80 degrees had been inserted and was the correct figure, this would have resulted in 7% UEI which when combined with the other restrictions in movement would produce 14% upper extremity impairment for restricted range of motion in the shoulder (as calculated by the MA).
The Appeal Panel was of the view that the MA made a demonstrable error in either inserting 180 degrees instead of 80 degrees or in his calculation of upper extremity impairment for restricted range of motion in the shoulder.

In these circumstances, the Appeal Panel concluded that it was necessary for Ms Offner to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Dr Drew Dixon re-examined Ms Offner on 7 September 2022 via zoom. Dr Dixon provided the following report:
“The worker’s medical history, where it differs from previous records
Nil.
Additional history since the original Medical Assessment Certificate was performed
Nil.
Findings on clinical examination
The claimant had stiffness of her left shoulder with active abduction 60 degrees, forward flexion 100 degrees with extension 40 degrees, adduction 30 degrees, external rotation 80 degrees and internal rotation 40 degrees. She indicated pain at the trapezius muscle which she felt was tight and pain extending to the left scapula region. There was winging of the left scapula on resisted protraction and there appeared to be impingement on abduction.
There was stiffness of the cervical spine with flexion decreased by one quarter associated with pain and extension by one quarter and lateral rotation was decreased by one third bilaterally and lateral flexion to the right was decreased by one third associated with pulling sensation of a tight left trapezius muscle.
In her neck, lateral flexion to the left was decreased by one quarter. She indicated tenderness of the trapezius muscle and of the mid and upper cervical facet joint area and that she had occipito frontal headaches, mainly left occipito temporal at times.
Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations.
Whole Person Impairment Assessment
The assessment for the post traumatic stiffness of her left shoulder is from Pie Charts 16-40, 16-43 and 16-46, Pages 476-479, AMA 5, 15% upper extremity impairment.
She has reached maximum medical improvement.
There were no symptomatic pre-existing conditions.
Calculations
That for the restricted abduction of 60 degrees is 6% UEI. That for the flexion of 100 degrees is 5% UEI. That for the adduction of 30 degrees is 1% UEI and that for the extension of 40 degrees is 1% UEI. That for the external rotation of 80 degrees is 0% UEI and for the internal rotation of 40 degrees is 3% UEI. This gives a total of 16% UEI for the left shoulder stiffness.
There was a full range of motion of her right shoulder.
To this can be added, from the MA’s assessment, the grade 3 sensory deficit for the traction injury to the brachial plexus upper trunk (C5/6 sensory only) from Table 16-10, Page 482, assessed at 60%, from Table 16-14, Page 490, AMA V. The maximum assessment for the upper trunk plexus sensory deficit or pain is 25% UEI. This gives 60% of 25%, which gives 15% UEI which, when combined with the UEI of 16% for the stiffness of the left shoulder, gives 29% upper extremity impairment, which equates to 17% whole person impairment.”
The Appeal Panel has adopted the report and findings of Dr Dixon.

Section 323 deduction

The appellant submitted that the MA incorrectly recorded in the MAC that Ms Offner had sustained nil previous or subsequent accident, injuries or condition. The appellant further argued that the MA did not provide any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality was not appropriate.
The Appeal Panel accepted that the MA on page 2 of the MAC after “Details of any previous or subsequent accidents, injuries or condition” wrote “Nil” and did not specifically refer to the earlier event, namely, the motor vehicle accident on 5 February 2014. However, the Appeal Panel was satisfied that the MA would have been aware of this earlier accident from the material in the brief, in particular, the reports of Dr Patrick and Dr Sharp. The Appeal Panel accepted that the MA erred in not referring to the motor vehicle accident on 5 February 2014. The Appeal Panel proceeded to consider whether a deduction should be made pursuant to
s 323 of the 1998 Act for a pre-existing injury.
Section 323 of the 1998 Act provides:
“(1)    In assessing the degree of permanent impairment resulting from an injury, 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.(2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)   The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.

30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case.”
In Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Campbell J said, “As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice”. Campbell J also noted that it is “... necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case”.
The Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality”.
The Appeal Panel reviewed the evidence in this matter.
The appellant referred to the Discharge Referral of Gosford Hospital dated 5 February 2014, (page 39 of the Reply) and the Motor Accident Personal Injury Claim Form dated
10 October 2014, (page 41 of the Reply). In the claim form, Ms Offner reported that she had sustained “whiplash, lower back pain constant pain in rotator cuff” and referred to the injuries affecting “repetitive motions with my left arm…”. The medical certificate attached to the form, completed by Dr Chris Allan, (Reply page 57) recorded that Ms Offner suffered from “persisting cervicogenic headaches” and “persisting sensory symptoms (at the) left arm”.
Dr Allan stated that Ms Offner had “symptoms consistent with rotator cuff problem” and referred to left arm weakness.
The appellant also referred to the consultation notes of Kincumber Doctors (page 61 of the Reply) dated 11 February 2014 (page 87 of the Reply) which recorded that Mr Offner was involved in a motor vehicle accident and that the “left shoulder particularly painful – tender over supraspinatus tendon/pain on resisted abduction”. On 20 June 2014 (page 86 of the Reply) it was noted that Ms Offner experienced sudden left shoulder pain after reaching behind herself and she had “pain with resisted int rotation and abduction some apprehension with ext rot/abduction no clunking”.
These clinical notes, reports and documents were all written in 2014. While the Discharge Referral, Motor Accident Personal Injury Claim Form and consultation notes are evidence of Ms Offner having a pre-existing injury, they are not evidence of that pre-existing injury, causing or contributing to the impairment assessed by the MA in 2022.
Neither Independent Medical Examiner (IME) made a deduction for a previous injury.
Dr Patrick in his report dated 8 September 2021 wrote:
“There was also a history of an earlier motor vehicle accident on 5 February 2014 and this was a relatively mild rear end collision type accident. She was driving and was stationary just off Avoca Drive waiting to turn into Best Street. There was resultant rear end collision type accident - just the two vehicles. She had some mild whiplash type injury with the hyperextension and recoil flexion going forwards and she was aware of some discomfort at the left arm. She was seen briefly at Gosford Hospital. Her symptoms settled very quickly and eventually there was some limited settlement.
She does continue now with ongoing problematic symptoms as a direct consequence of effects of injuries sustained by her on 20 January 2016 while working.
The deductible proportion at cervical spine is just one tenth of the assessed impairment and the deductible proportion left upper ex1remity shoulder and brachia! pie, us is nil and these assessments combine to result in 24% WPI which I believe accurately reflects the situation that Kate Offner is in the category of serious! injured worker.”
Dr Philip Sharpe in his report dated 22 April 2016 wrote:
“She was involved in a motor vehicle accident in 2014 where she was stationary and hit from behind. She had soft tissue injury to her neck and she subluxed her left shoulder. Her neck symptoms have never really settled completely, with symptoms occurring approximately once a month going to both trapezius areas and the scapular region, associated with a stiff neck. For about six months following the accident, she had a decreased range of movement in her left shoulder which has now settled. She otherwise denies any problems with her shoulders.”
In a supplementary report dated 25 November 2021, Dr Sharpe wrote:
“I have not included any deduction for the injury in the motor vehicle accident of 2014 as I do not believe this is a pre-existing condition or abnormality affecting the injury that occurred in January 2016.”
Basten JA in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 referred to the approach adopted by the Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]- [32] and, more recently, by Schmidt J in Cole). His Honour said:
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
This is a case where there is an absence of medical evidence establishing a contest as to whether the previous injury did contribute to the level of impairment. The submission by the appellant that the MA failed to give reasons is rejected.
The Appeal Panel considered that it was open to the MA to conclude on the evidence that no deduction should be made in respect of the injury in the motor vehicle accident in 2014. Indeed, after reviewing the evidence, the Appeal Panel concluded that the previous injury in 2014 did not cause or contribute to the impairment assessed as a result of the injury on
20 June 2016.
The Appeal Panel concluded that while the MA should have referred to the earlier injury, the failure to do so made no difference to the outcome in terms of a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
In conclusion, the Appeal Panel was satisfied that there was 5% UEI for the restricted abduction of 60 degrees, 5% UEI for the flexion of 100 degrees, 1% UEI for the adduction of 30 degrees is 1% UEI and 1% UEI for the extension of 40 degrees. External rotation of 80 degrees was 0% UEI and the internal rotation of 40 degrees was 3% UEI. These figures gave a total of 15% UEI for the left shoulder stiffness. The Appeal Panel then added from the MA’s assessment, the grade 3 sensory deficit for the traction injury to the brachial plexus upper trunk (C5/6 sensory only) from Table 16-10, Page 482, assessed at 60%, from Table 16-14, Page 490, AMA V. The maximum assessment for the upper trunk plexus sensory deficit or pain is 25% UEI. This gave 60% of 25%, which gives 15% UEI which, when combined with the UEI of 15% for the stiffness of the left shoulder, gave 28% upper extremity impairment, which equates to 17% whole person impairment.
Therefore, the total combined assessment is 17% WPI as a result of the injury on
20 June 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 April 2022 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

Matter Number:	W917/22
Applicant:	Kate Offner
Respondent:	Evergreen Lifecare Limited

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 Rob Kuru 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 WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	% WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
Cervical Spine	20/6/16	Page 392 Table 15-5	0	0	0
Left upper extremity	20/6/16	Page 476 Fig 16-40 Page 477 Fig 16-43 Page 479 Fig 16-4 Page 482 Table 16-10 Page 490 Table 16-14	17	nil	17
Total % WPI (the Combined Table values of all sub-totals)					17%

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2022] NSWPICMP 363

16 September 2022