Garwell v Alphasafe (NSW) Pty Ltd
[2025] NSWPICMP 106
•19 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Garwell v Alphasafe (NSW) Pty Ltd [2025] NSWPICMP 106 |
| APPELLANT: | Ryan Garwell |
| RESPONDENT: | Alphasafe (NSW) Pty Ltd |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant appealed against finding of Medical Assessor (MA) that he had not reached maximum medical improvement (MMI); MA found inconsistencies in range of motion of left upper extremity and therefore found the appellant had not reached MMI; Held – assessment made on basis of incorrect criteria; Medical Assessment Certificate (MAC) contained demonstrable error; appellant examined by member of Appeal Panel; MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 September 2024, Ryan Garwell lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 August 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
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 - sets 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
The appellant sustained injury to his right upper extremity (right shoulder) on 9 October 2019, when he lifted a piece of aluminium sheeting. The appellant has also sustained a consequential condition of his left upper extremity (left shoulder) and cervical spine.
The appellant made a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury to his right upper extremity; left upper extremity; and cervical spine.
The appellant lodged an Application to Resolve a Dispute with the Personal Injury Commission (Commission) on 29 September 2022.
The appellant claimed to have 30% whole person impairment (WPI) as a result of injury on
9 October 2019 to his right upper extremity; left upper extremity; cervical spine; thoracic spine; and TEMSKI scarring.The respondent lodged its Reply on 20 October 2022.
The respondent disputed that the appellant had sustained injury to either his cervical or thoracic spine and requested that the matter be listed for a telephone conference before the medical dispute was referred to a Medical Assessor.
On 3 November 2022, amended on 7 November 2022, Member Young entered Consent Orders, whereby there was an award for the respondent in respect of alleged injury (either primary or consequential condition) to the appellant’s thoracic spine.
Member Young remitted the matter to the President for referral to a Medical Assessor for assessment of WPI as a result of injury to the appellant’s right upper extremity (right shoulder), and consequential conditions of the appellant’s left upper extremity (left shoulder) and cervical spine.
The medical dispute was referred for assessment on 3 November 2022, amended on
8 November 2022.Dr Kuru examined the appellant on 17 November 2022 and issued a MAC (the first MAC) on 7 December 2022.
Dr Kuru opined that the appellant had not reached maximum medical improvement (MMI).
On 26 April 2024, the appellant requested that Dr Kuru reconsider his opinion as to whether the appellant’s degree of impairment resulting from the injury (consequential condition) of his left shoulder was fully ascertainable. If so, Dr Kuru was requested to assess the appellant’s permanent impairment.
The appellant relied on further evidence, being the report of Dr E Gehr, orthopaedic surgeon, dated 22 November 2023.
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 the reconsideration and has taken them into account in making this determination.
Medical Assessment Certificate dated 7 December 2022 (the first MAC)
Dr Kuru examined the appellant on 17 November 2022 and issued a MAC (the first MAC) on 7 December 2022.
Dr Kuru assessed the appellant’s WPI as a result of injury to his right upper extremity as 10%; and as a result of consequential condition of his cervical spine as 0%.
With respect to the appellant’s left shoulder, Dr Kuru opined that it appeared the appellant was symptomatic from subacromial impingement. The natural history of that condition was that its symptoms should settle over the next 12 to 18 months. In the absence of any information to the contrary, Dr Kuru would expect this to be associated with an increase in the appellant’s range of movement in the left shoulder, and reduction of impairment.
Dr Kuru therefore opined that the condition of the appellant’s left upper extremity was not yet stable/not at MMI, and this would occur in 12 to 18 months.
Medical Assessment Certificate dated 21 August 2024 (the second MAC)
Dr Kuru re-examined the appellant, although it is unclear when the examination took place.
On 21 August 2024, Dr Kuru issued a MAC (the second MAC).
Dr Kuru recorded a history that, since the first MAC was issued, the appellant had been reviewed by Dr Ed Bateman, orthopaedic surgeon. The appellant had been diagnosed with subacromial bursitis. He had had a steroid injection into his shoulder, which he said was of no benefit. There were plans to undertake Botox injections around his shoulder. The appellant had continued with physiotherapy and took medication for his pain.
Dr Kuru did not consider that the degree of the appellant’s impairment resulting from his left upper extremity was fully ascertainable.
Dr Kuru recorded that the appellant continued to have significant pain and restriction in range of motion of his left shoulder. There was substantial variability between the range of motion Dr Kuru found on his assessment and that documented by Dr Gehr.
The range of motion the appellant had subsequent to Dr Bateman’s review and imaging was not available to Dr Kuru, but, from the description of Dr Bateman’s letter and Dr Gehr’s report, an injury had not been found that would account for the severity of the restricted movement with which the appellant presented.
Given that the appellant’s examination continued to be variable, and was inconsistent with what the investigations reportedly had demonstrated, Dr Kuru did not regard the appellant’s left shoulder as being at MMI.
Dr Kuru commented on Dr Gehr’s report dated 22 November 2023, noting that Dr Gehr diagnosed a “consequential soft tissue injury to the left shoulder with pain and loss of range of motion.”
Dr Kuru opined that the impairment assessed by Dr Gehr was appropriate, based on the range of motion detected by Dr Gehr. However, that range of motion continued to be variable, there being a difference of 4% when compared to the range of motion at Dr Kuru’s examination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
Appellant
The appellant submits that the Medical Assessor’s assessment was made on the basis of incorrect criteria because the Medical Assessor misapplied the Guidelines.
The appellant submits it is apparent that the primary reason the Medical Assessor did not assess the appellant’s WPI was because there was a variable range of motion at examination.
The appellant submits that, pursuant to cls 2.5 and 1.36 of the Guidelines, the Medical Assessor was required to assess the appellant’s WPI, despite the variable range of motion and his determination that there was inconsistency between the investigations and the results of examination. These clauses mandated an assessment in such circumstances and the Medical Assessor was required to conduct an assessment on the basis of his specialised knowledge so as to reflect such inconsistencies. (Emphasis in original).
The appellant refers to the decisions in Bukorovic v The Registrar of the WCC[1] and Hunt v Allianz Australia Insurance Ltd.[2] The appellant submits the Medical Assessor was not permitted not to assess the appellant’s impairment on the basis of perceived inconsistencies.
[1] [2010] NSWSC 507.
[2] [2014] NSWSC 1584.
The appellant submits the Medical Assessor also committed demonstrable errors by failing to assess the appellant’s WPI. Prima facie, the Medical Assessor did not perform his statutory duty and assess the appellant.
The appellant submits there has been practical injustice because the Medical Assessor did not raise with him the inconsistencies and/or variables in range of motion, to enable him to respond: Frost v Kourouche.[3] Had they been raised with the appellant, he would have been able to respond and the failure to do so meant an assessment could not be undertaken.
[3] [2014] NSWCA 39.
The appellant submits the Medical Assessor has not provided adequate reasons for his conclusions, and particularly the determination that the appellant had not reached MMI. The challenges to the determination are medically contestable, noting Dr Gehr’s report dated
22 November 2023. It is clear from that report that Dr Gehr assessed the appellant’s WPI and therefore determined he had reached MMI. (Emphasis in original).
Respondent
The respondent refers to cls 1.15 and 1.16 of the Guidelines, which state that assessments are only to be conducted when the Medical Assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained MMI. This is considered to occur when the worker’s condition is well stabilised and…if MMI has not been achieved, the assessment should be deferred. (Emphasis in original).
The respondent submits the Medical Assessor did not “perceive inconsistencies”, but clinically observed:
· the appellant had been diagnosed with subacromial bursitis;
· the appellant had had a steroid injection to his left shoulder, which the appellant described as being of no benefit;
· there were plans for a Botox injection around the (left) shoulder;
· the appellant was having continued physiotherapy, and
· range of motion testing showed significant restricted motion in the appellant’s shoulders.
The respondent submits the Medical Assessor used his entire range of clinical skill and judgment when he assessed the appellant's left shoulder. The Medical Assessor found inconsistency with the observed presentation and the investigations/medical evidence, noting that some medical evidence and investigations were not to hand.
The respondent does “not think” cl 1.36 binds or mandates the Medical Assessor to make an assessment at the outset, “noting” that if MMI is not reached, WPI assessment should be deferred (cl 1.15 and cl 1.16).
In the alternative, the respondent submits there was no impairment rating for the Medical Assessor to modify due to inconsistent presentation as he considered permanent impairment of the appellant’s left shoulder was not fully ascertainable, that is, not capable of assessment, whereby the appellant is not MMI.
The respondent submits the Medical Assessor weighed up the evidence when assessing if an impairment was present. He concluded the appellant was not MMI.
The respondent submits it was open to find the appellant’s condition had not stabilised as he was still undergoing treatment. The Medical Assessor considered there would be a variance of 4% for the range of motion inconsistencies. “We regard this to mean” the appellant’s condition is not stable, such that WPI assessment could not be conducted.
The respondent submits the Medical Assessor has not committed demonstrable error. He assessed the appellant’s left shoulder with range of motion testing, reviewed the medical evidence, and concluded there were inconsistencies with observed testing and the medical evidence that could not account for the severity of the symptoms displayed on examination. Therefore, he considered the appellant’s left shoulder was not MMI.
The respondent submits the Medical Assessor is not guided or bound by Dr Gehr’s assessment. The Medical Assessor is to conduct his own independent clinical review of the medical evidence and physical testing and observations on examination to come to his conclusion.
The respondent does “not consider” there has been practical injustice in the Medical Assessor not raising the inconsistencies with the appellant. It is not the Medical Assessor’s role to provide recommendations or explain any inconsistency to the appellant to respond. The MAC is where the Medical Assessor explains his reasoning.
The respondent submits the Medical Assessor did not have all the documents Dr Gehr reviewed prior to Dr Gehr assessing the appellant as MMI. It was open for the Medical Assessor to find the appellant was not MMI.
The respondent submits that, if the appeal is granted, the reports of Dr Bateman and the imaging referred to by Dr Gehr should be provided to assist with the re-examination.
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 because it had identified error in the second MAC.
There was a demonstrable error in the assessment of WPI because the Medical Assessor concluded that the appellant had not reached MMI as the appellant’s range of motion was inconsistent.
Clause 1.36 of the Guidelines, under the heading “Inconsistent presentation”, provides:
“AMA5 (p19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing’. This paragraph applies to inconsistent presentation only.”
Clause 2.5 of the Guidelines provides:
“Range of motion (ROM) is assessed as follows:
· A goniometer or inclinometer must be used, where clinically indicated
· Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
· If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation
· If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
· If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present”
The Medical Assessor was required to apply his clinical skill and judgment in order to make an assessment, despite concluding that the appellant’s range of motion was inconsistent.
The Medical Assessor concluded that the appellant’s degree of permanent impairment resulting from the injury to his left upper extremity was not fully ascertainable due to inconsistencies in range of motion, not because the appellant was still undergoing treatment.
RE-EXAMINATION
Medical Assessor James Bodel conducted an examination on 9 January 2025 and provided the following report to the Appeal Panel.
“APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL
Matter Number: M1-W6319/22
Appellant: Ryan Garwell
Respondent: Alphasafe (NSW) Pty Ltd
Date of Determination: 9 January 2025
Examination Conducted By: James Bodel
Date of Examination: 9 January 2025
1. The worker’s medical history, where it differs from previous records
The claimant has been assessed by Dr Robert Kuru and his original MAC was prepared for 7 December 2022. There is a detailed history of the mechanism of injury at that time.
The record indicates that his initial injury was to the right shoulder when he felt a “pop” and then later the injury to the left shoulder. I note that the referral for the assessment of permanent impairment to the Medical Assessor was for:
· Right Upper Extremity (shoulder)
· Left Upper Extremity (shoulder) – consequential injury
· Cervical spine – consequential injury
The contentious part of the history is that when first assessed, there was some concern that Mr Garwell may be having further surgery in the form of an arthroscopy in the left shoulder. For that reason, Dr Kuru indicated that the claimant had not reached maximal medical improvement, although this has been done on behalf of the applicant who indicated that maximal medical improvement had been achieved.
2. Additional history since the original Medical Assessment Certificate was performed
The claimant has reached the level of maximum medical improvement. He has quite firmly indicated that he has no intention of undergoing any form of further surgery, in either the right shoulder or the left shoulder, although there has been an offer of left shoulder surgery in the past. He is not going to proceed with that.
He therefore has reached the level of maximal medical improvement, as no further interventional treatment is being offered or considered for the management of his neck or either shoulder.
3. Findings on clinical examination
I note that the subject of this appeal is the left shoulder only.
This is confirmed both in the appellant’s material and the material from the opposition.
For completeness, I will include the clinical findings for the cervical spine, the right shoulder and the left shoulder as follows:
There is a DRE Cervical Category I level of assessable impairment in accordance with the description in Table 15-5 on page 392 of AMA5, as there is no asymmetry of movement or guarding, and no clinical sign of radiculopathy.
The recorded restriction of shoulder movement today is as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 90° | 90° |
| Extension | 30° | 30° |
| Adduction | 10° | 10° |
| Abduction | 70° | 70° |
| Internal Rotation | 50° | 50° |
| External Rotation | 50° | 50° |
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
5. Opinion
The claimant does have a rateable restriction of left shoulder movement, and he has reached the level of maximal medical improvement for the purpose of that assessment.
The recorded restriction of movement identified above gives a total of a 16% Upper Extremity Impairment, which becomes a 10% Whole Person Impairment for the Left Upper Extremity.
The two individual ratings are combined: 10% Whole Person Impairment for the Right Upper Extremity and now a 10% Whole Person Impairment for the Left Upper Extremity, and a 0% Whole Person Impairment for the cervical spine.
These two are combined to give a 19% Whole Person Impairment in this case.”
FINDINGS AND REASONS
The Appeal Panel considers that the examination undertaken by Medical Assessor Bodel was conducted in a thorough manner.
Medical Assessor Bodel concluded that the appellant had reached MMI.
Medical Assessor Bodel found restriction of movement of the appellant’s left upper extremity (shoulder), which was the only subject of the appeal, and assessed impairment of the left shoulder.
For these reasons, the Appeal Panel has determined that the MAC issued on
21 August 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6319/22 |
Applicant: | Ryan Garwell |
Respondent: | Alphasafe (NSW) 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 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 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) |
| 1.Right upper extremity | 9/10/19 | Page 476 Fig 16-40 Page 477 Fig 16-43 Page 479 Fig 16-46 | 10% | 0 | 10% | |
| 2. Left upper extremity | 9/10/19 | Page 476 Fig 16-40 Page 477 Fig 16-43 Page 479 Fig 16-46 | 10% | 0 | 10% | |
| 3. Cervical spine | 9/10/19 | Page 392 Table 15-5 | 0% | 0 | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
3
0