Francesco v Dreamroof Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Francesco v Dreamroof Pty Ltd [2022] NSWPICMP 230
APPELLANT:	Shaun Di Francesco
RESPONDENT:	Dreamroof Pty Ltd
APPEAL PANEL:	Member Brett Batchelor Dr Drew Dixon Dr Margaret Gibson
DATE OF DECISION:	23 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal pursuant to section 327(3)(b), (c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); in respect of injury to the right upper extremity, thoracic spine and scarring; appellant seeks to rely on availability of additional relevant information in respect of what occurred at the examination of him by the Medical Assessor; Held- finding that such evidence should not be received by the Medical Panel as it did not have real probative value, in the sense that it is reasonably clear that it would change the outcome of the case; Ross v Zurich Workers Compensation Insurance and Lukacevic v Coates Hire Operations Pty Limited relied upon; appellant’s submission that assessment of right upper limb should be assessed having regard to [2.14] Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines), and Table 16-27 of AMA 5 rejected; finding that the Medical Assessor’s assessment of WPI as a result of injury to the right upper extremity assessed on the basis of loss of range of movement, should not be disturbed; appellant’s submission that the thoracic spine should be assessed as DRE III, not DRE II, having regard to [1.23] of the Guidelines, rejected; no issue in respect of assessment of scarring; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 February 2022 Shaun Di Francesco (the appellant/Mr Di Francesco) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Application). The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 January 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        the assessment was made on the basis of incorrect criteria;
·        the MAC contains a demonstrable error, and
·        availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against that could not reasonably have been obtained by the appellant before the medical assessment.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. In respect of the last mentioned ground in [2] above, the delegate notes that the appellant has attached evidence to the Application on which he seeks to rely in this appeal. The delegate notes that the appellant has not referred to s 327(b) of the 1998 Act in the Application or submissions, nor is it pleaded in the Grounds of Appeal. The delegate notes that however, by substance, it is clear that the appellant intends to rely on that section. 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Di Francesco was employed by Dreamroof Pty Ltd (the respondent) as a roof tiler on 5 February 2019 when he fell off the roof of a residential building on which he was working when his tool belt got caught in the conveyor belt. He lost his balance and fell approximately 3.5 m, landing on his right side. In the fall he sustained lacerations to the scalp and chin, multiple rib fractures and a fracture of the right clavicle (collar bone).
Mr Di Francesco was airlifted to St George Hospital where he remained an inpatient for about a month. At the hospital X-rays revealed the fracture of the right clavicle and multiple rib fractures. He had a flail chest. He had open reduction and internal fixation of the fractured fourth, fifth and sixth ribs. The hardware remains in situ.
The clavicle fracture was not surgically treated because of the flail chest. In September 2019 he had surgery to the right clavicle. There was a clavicle deformity due to the malunion of the clavicle and he had osteoplasty to smooth the mal-united bone.
Subsequently Mr Di Francesco attended physiotherapy and saw an exercise physiologist. He currently takes Palexia, usually at night. His states that his present symptoms are debilitating/chronic pain in his right side chest wall area and rear thoracic area. He struggles to lift anything over 5kg without feeling pain. He does not always sleep well and periodically takes medication to help him sleep.
As of 14 October 2021, the date of his statement, Mr Di Francesco continued to work five hours a day, three days a week, which he said was unsustainable. As of 17 December 2021, the date of examination by the Medical Assessor, Dr Mastroianni, the appellant was not working.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The respondent rejects the appellant’s request for re-examination by a Medical Assessor who is a member of the appeal panel. It submits that the medical examination was appropriately carried out, with the findings of the Medical Assessor sufficiently recorded in the MAC. It also submits that the appellant has not provided sufficient reasoning as to why a further examination ought to be conducted.
As a result of the preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because, notwithstanding the appellant’s request, the Panel considers that there is sufficient evidence in the appeal papers on which to base its decision.

Procedure on appeal

Section 328 of the 1998 Act provides for procedures on appeal against a medical assessment. Subsection (1) provides that such appeal is to be heard by an Appeal Panel constituted by three persons constituted by two medical assessors and one member of the Personal Injury Commission (the Commission). Subsection (2) states that 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. Subsection (2A) states that to avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.

Fresh evidence

The appellant seeks to admit the following evidence:
(a) statement of evidence dated 4 February 2022 (annexure “D” to the appellant’s submissions dated 4 February 2022)[1], and
(b) three photographs of the appellant’s right collar bone area and scarring thereon (annexure “E” to the appellant’s submissions dated 4 February 2022)[2].
[1] Appeal Papers p 40.
[2] Appeal Papers p 43.
The appellant submits that the evidence is relevant to what he was asked about his clavicle by the Medical Assessor at the examination on 17 December 2021, alleging that he was “...prevented from providing any details about the pain that emanates from the right clavicle but spikes when lifting items as insignificant as wet clothing when hanging washing out”[3]. The appellant submits that this is consistent with his statement dated 14 October 2021[4], and with the report of Dr New dated 1 October 2020[5], and also consistent with what is recorded by Dr Rimmer in his report dated 11 August 2021 following his examination of
[3] See appellant’s submissions at appeal papers p 11.
[4] Appeal Papers p 74, at [42].
[5] Appeal Papers p 25, at p 27.
[6] Appeal Papers p 184 at p 187.
Mr Di Francesco on 2 August 2021[6].
The appellant submits that the evidence was not available and could not reasonably have been obtained because:
(a) to the extent that the statement dated 4 February 2022 contains a description of pain related to the clavicle, it is not new evidence as the information is in essence a restatement of information contained in the previous reports of Dr New and
Dr Rimmer, but
(b) to the extent that such statement contains a description of how the examination by the Medical Assessor was conducted, “...subsequently limiting the relevant details the Appellant was able to provide”, it is evidence that was not previously available.
In respect of the photographs, annexure “E” to the appellant’s submissions dated 4 February 2022, the appellant notes that these show the extent of the right clavicle protrusion which would have been visibly obvious to the Medical Assessor during the examination, and are therefore not new evidence. Nevertheless the appellant submits that the photographs are provided for the benefit of the Panel in the event that the appeal is to be decided ‘on the papers’.
The respondent submits that the additional evidence sought to be relied upon by the appellant does not satisfy the requirements of s 328(3) of the 1998 Act, quoting the subsection. The respondent notes the concession that the contents of the statement dated 4 February 2022 do not provide fresh evidence as it is a reiteration of existing evidence which has already been made available to the Medical Assessor. To the extent that the appellant relies on the statement to provide an account of how the examination was conducted, the respondent submits that the MAC contains a sufficient record of the history taken from
Mr Di Francesco on the day of the examination.
In terms of the photographs, the respondent again submits that the Medical Assessor would have been able to observe the appellant’s presentation, and that he recorded his findings on physical examination on p 3 of the MAC, including comments in relation to the right clavicle.[7] The respondent submits that the photographs either do not appropriately constitute ‘fresh evidence’, or are otherwise not provided in accordance with s 328(3) of the 1998 Act.
[7] Appeal Papers p 19.
The respondent submits that to allow the further evidence sought to be relied upon by the appellant to form part of the appeal would be contrary to the operation of s 328(3) of the 1998 Act and would subject the respondent to unfair prejudice, particularly in the circumstance that the statement dated 4 February 2022 was drafted with the benefit of hindsight and following issue of the MAC.
The respondent submits that the further evidence should be rejected.
The Appeal Panel determines that the evidence should not be received on the appeal for the following reasons.
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant concedes that the only part of the evidence that he now seeks to have admitted pursuant to s 328(3) is the evidence as to how the Medical Assessor conducted the examination on 17 December 2021. Specifically, the appellant claims he was limited by the manner in which Dr Mastroianni received and recorded details as to the pain experienced in the collar bone when lifting anything above his shoulders, or engaging in other domestic activities.
The appellant concedes that the other evidence sought to be relied upon, referred to above at [17(a)], and [18] (the photographs), does not meet the requirements of s 328(3). Having regard to that concession, and because quite clearly it is correct, the Appeal Panel determines that such evidence should not be received by the Panel. That leaves the issue as to whether the evidence as to how the Medical Assessor conducted the examination on 17 December 2021, referred to at [17(b)] above, should be received by the Appeal Panel.
The appellant’s evidence on this issue is contained in [8]-[11] of his statement dated 4 February 2022. At [8], Mr Di Francesco says that Dr Mastroianni asked him a variety of questions but gave him little time to answer, and did not let him answer in detail. At [9],
Mr Di Francesco says that when Dr Mastroianni asked him about his clavicle it was amongst questions about his ribs and head. In answer to a question from the Medical Assessor “What about your collar bone?” Mr Di Francesco replied, “It’s OK at the moment”. At [10]
Mr Di Francesco says that at this point Dr Mastroianni cut him off, and he doubts that it was deliberate, but what he wanted to say was:
“...but it is painful when I have to lift anything above my shoulders such as hanging clothes on the line or if I am washing my car or if I am placing groceries into cupboards higher than my shoulder height. It is painful when touched and that is most often when
I am wearing a seat belt driving a car.”
At [11] Mr Di Francesco says that he doubts that Dr Mastroianni was deliberately dismissive of what he had to say but he was obviously keen to press through the assessment process. He estimates that the entire assessment was complete within 20 minutes.
The admission of 'fresh evidence' into an appeal was considered by Deputy President Fleming in the Workers Compensation Commission in Ross v Zurich Workers Compensation Insurance[8]. The Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly, that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case ( Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435; McCann V Parsons [1954] HCA 70; (1954) 93 CLR 418; Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed the fundamental demands of fairness and justice in the instant case [sic]."
[8] [2002] NSWWCCPD7.
The second, and cumulative, requirement for the admission of fresh evidence noted by the Deputy President is that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case.
The issue of whether or not a statement by a worker taking issue with the manner in which an Approved Medical Specialist (now referred to as Medical Assessor) conducted a medical examination should be admitted as new evidence pursuant to s 328(3) of the 1998 Act was considered by the Court of Appeal in Lukacevic v Coates Hire Operations Pty Limited[9]. Hodgson JA, who was in the majority with Giles JA in holding that on the facts of that case such a statement should not be admitted, said at [75] - [78]:
“75. A certificate given by an approved medical specialist (AMS) must set out the reasons for the assessment and the facts on which the assessment is based: Workplace Injury Management and Workers Compensation Act 1998 ( WIM Act) s 325(2). These reasons and facts will necessarily include the history given by the worker to the AMS and the AMS's observations of the worker at the medical examination.
76. Suppose that the worker disputes that the history set out in the certificate was the history he/she gave, and/or disputes the observations recorded in the certificate. If so, the assertions of the worker on those topics, if they concern a matter relevant to the correctness of the certificate, could qualify as additional relevant information not available or obtainable before the medical assessment, within s 327(3)(b) of the WIM Act, and thus give a ground of appeal.
77. An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.
78. A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[9] [2011] NSWCA 112.
The Appeal Panel does not suggest in this case that the appellant is raising a dispute as to what took place at his examination by the Medical Assessor dishonestly or on flimsy grounds. Mr Di Francesco concedes doubt that Dr Mastroianni deliberately cut him off or was dismissive of him. He says that the doctor was keen to press through the assessment process, which was completed within 20 minutes. That time period may not necessarily be short for an experienced practitioner such as Dr Mastroianni. The doctor may disagree with the appellant that he gave him little time to answer or did not let him answer in detail. The matter to be determined by the Appeal Panel is whether the evidence sought to be relied upon has real probative value such that it is reasonably clear that it would change the outcome of the case.
For reasons referred to hereunder, the Appeal Panel is of the view that the evidence does not have real probative value, in the sense that it is reasonably clear that it would change the outcome of the case. It therefore rejects the evidence referred to at [10]-[11] of the appellant’s statement dated 4 February 2022.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

The appellant

The appellant refers to [1.2a] of AMA 5, and the definitions of “impairment”, and “impairment percentages or ratings” referred to therein. The appellant then quotes the following, extracted from the MAC:
“4. HISTORY RELATING TO THE INJURY
...
There was a clavicle deformity due to the malunion of the clavicle and he had osteoplasty to smooth the bone that was mal-united.
...
I asked about the fractured collar bone and he said that the collar bone aches sometimes.”[10]
“5. FINDINGS ON PHYSICAL EXAMINATION
...
The [sic, right] clavicle is deformed and clinically healed with no tenderness.”[11]
The appellant contrasts the last mentioned quote with the earlier quotation that “...the collar bone aches sometimes”.
[10] Appeal Papers p 18.
[11] Appeal Papers p19.

The appellant then refers to his statement dated 4 February 2022, referred to in [15(a)] above, which has been rejected by the Appeal Panel. The appellant asserts that what is said therein is consistent with what is recorded by Dr New in his report dated 1 October 2020[12], and also refers to what Dr Rimmer records in his report dated 2 [sic, 11] August 2021[13] that:
“He is mildly tender to firm palpation at the clavicle fracture site”.
[12] Appeal Papers p 25.
[13] Appeal Papers pp 33 and 184.
The appellant asserts that he has suffered permanent derangement to the right clavicle, it being left rendered with a deviation to that of its previous normal anatomical presentation as a consequence of the injury sustained on 5 February 2019.
The appellant submits that the protruding clavicle causes an impairment of his functional capacity to lift matter above shoulder height. This is evidenced, by the clinical note of
[14] Appeal Papers p 169.
[15] Appeal Papers p 168.
Dr Webber [sic, Dr Sanjeet Hyare] of 14 August 2019 who records “...now has painful arc even in passive motion and unable to swim/do overhead activities”[14], and by the clinical note of Dr Oliver Weber of 24 July 2019 who records “...also asking about shaving down his clavicle which is poking out”[15].
The appellant submits that the Medical Assessor has not allowed for the surgery to the right clavicle, noting that it is “deformed”, nor allowed for the ongoing impact on him.
The appellant submits that in the final assessment the Medical Assessor finds “no impairment of the fractured clavicle” despite the complaint recorded in the MAC that it aches sometimes, and various references to the deformity of the clavicle. The Medical Assessor is also submitted to have ignored the recording of pain that the appellant attributes to the right clavicle.
The appellant notes that osteotomy of the clavicle is not provided for in AMA 5 nor the Guidelines, and submits that in these circumstances assessors are encouraged to use clinical judgement to apply an impairment with an analogous condition. In the circumstances relating to the appellant’s clavicle, the appellant submits that [2.14] of the Guidelines, which are quoted, provides a pathway for the analogous condition.
The appellant submits that the demonstrable error in the MAC is the reluctance of the Medical Assessor to utilise [2.14] of the Guidelines, and that he should have allowed 5% right upper extremity impairment for resection arthroplasty of the distal clavicle, being the analogous pathology to the osteoplasty which he underwent. That 5% upper extremity impairment should then be combined with 5% upper extremity impairment for range of motion of the right shoulder, which equates to 10% upper extremity impairment and 6% whole person impairment (WPI).
When 6% WPI is combined with 7% WPI for the thoracic spine (chest wall) and 4% WPI for scarring, a combined total of 16% WPI is achieved.
The appellant finally submits that he would benefit from re-examination by a member of the Appeal Panel and that the matter should not simply be determined ‘on the papers’. That submission has been addressed by the Appeal Panel at [12]-[13] above.

The respondent

In reply, the respondent submits that the appellant has incorrectly interpreted [2.14] of the Guidelines and relies on a sentence therein which has been read out of context. Read as a whole, and particularly in conjunction with the previous sentence, the respondent asserts that it was the intention of the Guidelines for the principle only to apply to other specific shoulder injuries which are otherwise not rare cases of rotator cuff injury.
The respondent submits that deriving a degree of impairment from experiences of pain, other than in a matter involving chronic regional pain syndrome[16], is not permitted. The respondent therefore disputes that the appellant is entitled to attribute an additional impairment value to his pain.
[16] Guidelines Chapter 17.
The respondent notes that the references on the clinical notes of Dr Webber on 14 August 2017 [sic, Dr Hyare] and 14 July 2019 in respect of complaints of functional restriction and embarrassment due to the clavicle protrusion. These comments pre-dated the osteoplasty procedure[17], noted by Dr Rimmer to have been “...of some benefit”.
[17] Appeal Papers p 140.
The respondent does not agree that an osteopathy procedure can be considered “analogous pathology” to a resection arthroplasty, at least on the case of the appellant which involved smoothing (or shaving) of the pointy bone that was mal-united in the operation record of 26 September 2019. The respondent submits that on the other hand, a resection arthroplasty involves removing a portion of a joint or bone. AMA 5 also provides that a resection arthroplasty of a joint, which is far more radical surgery that an osteotomy, may be carried out with or without implant replacement.
The respondent submits that Table 16-27 of AMA 5 sets out impairment values which apply for specific arthroplasty procedures performed on different parts of the upper extremity (subject to variations noted in the Guidelines). To apply the same impairment value to an osteopathy of the clavicle would be a misinformed application of the AMA 5 and the Guidelines.
The respondent comments upon the assessments of Dr New in his initial report dated 1 October 2020 and supplementary report dated 20 June 2021, noting that the doctor did not separately assess impairment of the clavicle in his initial report, and that such assessment was only made in his supplementary report. The respondent questions as to exactly what was put to Dr New, and asked of him, to cause him to reach the conclusion that he did in the supplementary report. That conclusion was that an equivalent and analogous condition of the pathology of the distal clavicle, covered under Table 16-27 of the Guidelines, can be used.
The respondent submits that, absent a valid and detailed reasoning behind the “analogous condition”, the reports of Dr New are of little probative value, and that little consideration should be given to his assessment in respect of the appellant’s clavicle.
The respondent submits that the Medial Assessor used the correct approach to assess impairment of the appellant’s right upper extremity, that is, using abnormal range of movement. Clause [2.14] of the Guidelines indicates that this is the preferred or most common method for assessing shoulder disorders. The respondent also notes that the Medical Assessor found a restriction of shoulder movement in contrast with the findings of
Dr New and Dr Rimmer.
The respondent submits that applying a further impairment value for the appellant’s osteopathy of the right clavicle would not only result in incorrect application of [16.7b] and Table 16-27 of AMA 5 and [2.14] of the Guidelines, but allow the appellant to ‘double dip’ as his pathology has already been assessed through an examination of the abnormal range of movement of the shoulder (or otherwise through thoracic impairment).
The respondent submits that in context it is clear that the MA was exercising his clinical judgment in rejecting the purported analogy between osteopathy and arthroplasty and in choosing to assess impairment based on the appellant’s range of motion. The respondent submits that the Medical Assessor appropriately conducted the assessment, sufficiently recorded the history and his findings on examination, and provided adequate reasoning behind his opinion and assessment.
The respondent rejects the appellant’s submission that there is a demonstrable error in the MAC, that is an error that is readily apparent from an examination of the MAC and the document referring the matter to the Medical Assessor for assessment. The respondent rejects the appellant’s submission that the Medical Assessor has applied incorrect criteria in making his assessment, noting that the Assessor correctly assessed the right upper extremity through an examination of the range of movement of the shoulder in accordance with chapter 16 of AMS 5 and Chapter 2 of the Guidelines.
The respondent seeks an order that the MAC is confirmed or alternatively that the appeal against the decision of the Medical Assessor is dismissed.

FINDINGS AND REASONS

As noted above at [14] 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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[18] and NSW Police Force v Registrar[19].
[18] [2008] NSWCA 116.
[19] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[20] 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.
[20] [2006] NSWCA 284.

Assessment of the right upper extremity

Clause [2.14] of the Guidelines provides:
“2.14 Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 Section 16.4 ‘Evaluating abnormal motion’. (Please note that AMA5 indicates that internal and external rotation of the shoulder are to be measured with the arm abducted in the coronal plane to 90 degrees, and with the elbow flexed to 90 degrees. In those situations where abduction to 90 degrees is not possible, symmetrical measurement of rotation is to be carried out at the point of maximal abduction.)
Rare cases of rotator cuff injury, where the loss of shoulder motion does not reflect the severity of the tear, and there is no associated pain, may be assessed according to AMA5 Section 16.8c ‘Strength evaluation’. Other specific shoulder disorders where the loss of shoulder motion does not reflect the severity of the disorder, associated with pain, should be assessed by comparison with other impairments that have similar effect(s) on upper limb function.
As noted in AMA5 Section 16.7b ‘Arthroplasty’, ‘In the presence of decreased motion, motion impairments are derived separately and combined with the arthroplasty impairment’. This includes those arthroplasties in AMA5 Table 16-27 designated as (isolated).
Please note that in AMA5 Table 16-27 (p 506) the figure for resection arthroplasty of the distal clavicle (isolated) has been changed to 5% upper extremity impairment, and the figure for resection arthroplasty of the proximal clavicle (isolated) has been changed to 8% upper extremity impairment.”
The Medical Assessor assesses the appellant’s right upper extremity on the basis of restricted right shoulder movements he found on examination and in accordance with Table 15-4 on p 389 of AMA 5, and Figures 16-40 to 16-46 at pp 476 to 479 of AMA 5. He assesses 5% upper extremity impairment which equates to 3% WPI.[21] At [10.c.] of the MAC the Medical Assessor refers to the assessment of Dr New of 10% for osteotomy of the clavicle, noting Dr New’s referral to Table 16-27 of AMA 5 to make the assessment. This is a reference to upper extremity impairment. The Medical Assessor then correctly notes that:
“Table 16-27 assesses resection arthroplasty of the clavicle. The claimant has not had resection arthroplasty but rather osteoplasty to smooth the deformity caused by mal union. Clinically the fracture has healed, and is not causing any problems. Furthermore, if one were to assess arthroplasty of the clavicle, the doctor should have used SIRA Guidelines 4^th Edition, page 11 – 12, section 2.14.”
The Medical Assessor then notes Dr New’s supplementary report and the incorrect way in which he has combined the various impairments, having regard to the assessment of activities of daily living (ADL). He then says:
“I found upper extremity impairment as a result of restricted shoulder movements but no impairment of the fractured clavicle.”
[21] See [10 a. and b.] of the MAC, pp 60-61 Appeal Papers.
The first paragraph of [2.14] of the Guidelines records that “Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 Section 16.4 ‘Evaluating abnormal motion’”. The third paragraph of [2.14] is that on which the appellant relies in support of the assessment of Dr New in his supplementary report dated 30 June 2021.[22] It is quite clear that it refers to arthroplasty in the presence of decreased motion. The appellant has not undergone an arthroplasty.
[22] Appeal Papers p 30.
The appellant seeks to show that because of pain in the collar bone and the deformity of the right clavicle because of mal-union as a result of surgery, he should be assessed pursuant to Table 16-27 of AMA 5 as if he had undergone an arthroplasty. He relies on the assessment of Dr New in the supplementary report. Dr New does not explain why he assesses the appellant’s right clavicle by reference to Table 16-27 of AMA 5 other than stating in the supplementary report that:
“You have also raised the issue regarding an equivalent and analogous condition of the pathology of the distal clavicle, which is covered under Table 16.27 on Page 506, which is The Impairment of Upper Extremity After Arthroplasty of Specific Bones or Joints, which does cover both implant and resection arthroplasty.”[23]
[23] Appeal Papers p 31.
The Appeal Panel does not accept the appellant’s submission that his right upper extremity should be assessed by reference to Table 16-27 of AMA 5. The Medical Assessor was correct in his assessment of 5% upper extremity impairment which equates to 3% WPI.

Assessment of the thoracic spine

The Appeal Panel notes that Dr New in the supplementary report assesses the thoracic spine as diagnostic-related estimates (DRE) III resulting in 15% WPI, noting that in his first report dated 1 October 2020 he assesses 6% WPI on the basis of DRE II. The Medical Assessor assesses 7% WPI.
The Medical Assessor addresses Dr New’s revised assessment at [10.c.] of the MAC, stating that he cannot follow the doctor’s methodology for going from DREII to DRE III. He says that to have DRE III of the spine the claimant (the appellant) must have had either surgery, have radiculopathy or sustained a fracture of the spine of 25% to 50%. The appellant does not meet the criteria of DRE Category III. The fact that he had multiple rib fractures is not a criteria to increase the DRE Category of the thoracic spine. Pain is also not a factor in assessing impairment. The Medical Assessor says that impairment from fractured ribs is assessable by its effect on the thoracic spine (DRE Category II) and therefore not necessary to assess by analogy (Guidelines [1.23]).
The Medical Panel agrees with the assessment of the appellant’s spine made by the Medical Assessor and his comments on the assessment thereof by Dr New in his supplementary report dated 30 June 2021.

Scarring

The Medical Assessor assess 4% WPI for scarring, the same assessment as Dr New.
Dr Rimmer in his report dated 11 August 2021 assess 5% WPI.
The appellant makes no submissions in respect of this assessment and accepts it.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 January 2022 should be confirmed.

[2022] NSWPICMP 230

23 May 2022