He v Miele Australia Pty Ltd
[2025] NSWPICMP 538
•23 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | He v Miele Australia Pty Ltd [2025] NSWPICMP 538 |
| APPELLANT: | Zhengang He |
| RESPONDENT: | Miele Australia Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Rob Kuru |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 23 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the Medical Assessor (MA) obtained sufficient history to assess the effect of the appellant’s cervical spine injury on his activities of daily living; whether the MA provided adequate reasons to explain his rating for the effect of the appellant’s cervical spine injury on his activities of daily living; Held – MA neither obtained a sufficient history nor adequately explained his reasons for his rating of the effect of the appellant’s injury on his activities of daily living; appellant re-examined; Appeal Panel rated the effect of the appellant’s cervical spine injury on his activities of daily living the same as the MA; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 March 2025 Zhengang He, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Croker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 March 2025.
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 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a technician in 2016 with Miele Australia Pty Ltd, the respondent. On 23 November 2021 he suffered an injury to his right shoulder and neck while lifting a dishwasher. He subsequently developed pain in his left shoulder due to using his left shoulder more to protect his right shoulder.
The appellant claimed compensation from the respondent’s insurer for permanent impairment from his injury. He relied on a report of orthopaedic surgeon Dr Medhat Guirgis dated 17 November 2023 who assessed the degree of his permanent impairment from his injury is 19% whole person impairment (WPI), that being a combination of 12% WPI relating to the appellant’s right upper extremity, 5% WPI relating to the appellant’s cervical spine and 3% WPI relating to the appellant’s left upper extremity.[1]
[1] The appellant’s solicitors’ letter by which he made his claim for compensation refers to a report of Dr Guirgis dated 30 October 2023 but the only report in evidence is report of 17 November 2023.
The respondent’s lawyers organised for the appellant to be examined by orthopaedic surgeon Dr Robin Diebold on 24 January 2024, in regard to which Dr Diebold produced two reports the first dated 24 January 2024 and the second 28 February 2024. In both reports he advised he assessed the degree of the appellant’s permanent impairment is 13% WPI being a combination of 7% WPI relating to the appellant’s right upper extremity, 6% WPI relating to the appellant’s cervical spine and 0% WPI relating to the appellant’s left upper extremity. Dr Diebold’s second report followed a request by the respondent’s solicitors to clarify his diagnosis relating to the appellant’s left and right shoulders.
Following the respondent’s solicitors receiving Dr Diebold’s reports they wrote to the appellant’s solicitors advising that they were instructed to make an offer on behalf of respondent to pay compensation to the appellant for 13% WPI. They advised that offer was in accordance with Dr Diebold’s assessment.
A medical dispute consequently arose between the parties regarding the degree of the appellant’s permanent impairment from his injury which prompted the appellant to initiate proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 3 December 2024. Following the respondent lodging a Reply to that a referral was forwarded to the Medical Assessor on 13 January 2025, which was subsequently amended on 17 February 2025. The Medical Assessor examined the appellant on that date and as said issued the MAC on 3 March 2025. In that he certified he assessed the degree of the appellant’s permanent impairment is 14% WPI, being a combination of
6% WPI relating to the cervical spine, 7% WPI relating to the appellant’s right upper extremity and 1% WPI relating to the appellant’s left upper extremity.The issue the appellant raises in his appeal against the medical assessment relates to the Medical Assessor’s assessment of the degree of his permanent impairment of his cervical spine, and specifically the percentage WPI the Medical Assessor added pursuant to paragraphs 4.33-4.35 of the Guidelines to the base rating of 5% WPI he assessed the appellant had as a consequence of finding the appellant met the criteria of DRE Cervical Category II of AMA5.
Paragraphs 4.33-4.35 of the Guidelines permit a Medical Assessor to add up to 3% WPI if a worker’s spinal injury has an effect on the worker’s activities of daily living.
Relative to the Medical Assessor’s assessment of that matter, the Medical Assessor detailed in the MAC that the appellant currently experiences symptoms of variable pain of a mild to moderate degree in the right posterolateral aspect of his neck, and experiences limitation of the movement of his neck due to pain. The Medical Assessor recorded the appellant also experiences constant variable pain in his right shoulder girdle and limitation with active range of motion because of pain and a stiff feeling. The Medical Assessor recorded the appellant experiences constant variable pain in his left shoulder girdle but to a milder degree than what he experiences in his right shoulder.
The Medical Assessor recorded the appellant occasionally plays chess. The Medical Assessor did not record the appellant having any other past times or hobbies. The Medical Assessor recorded that the appellant has sleep disruption due to his pain. The Medical Assessor recorded that the appellant reported that he has difficulty with “day to day tasks”. The Medical Assessor noted that the appellant does not have a garden. The Medical Assessor also recorded that the appellant is independent with his personal care.
The Medical Assessor recorded his findings from his examination of the appellant. They included restricted range of motion of the appellant’s cervical spine along all planes of motion other than the posterior sagittal rotation which the Medical Assessor noted was near normal. The Medical Assessor noted that the appellant had tenderness with palpation of the lower para-cervical musculature bilaterally that extended to the right suprascapular region and that the appellant exhibited mild guarding with palpation of the musculature in that region to the right side.
The Medical Assessor also recorded the range of motion the appellant has in each of his shoulders. Those measurements revealed the appellant’s restricted range of movement in his right shoulder was more severe than that in his left.
The Medical Assessor noted in the MAC that he had reviewed copies of the reports on radiological investigations the appellant had undergone.
The Medical Assessor explained that based on the restricted range of motion he found the appellant to have of his right shoulder the appellant had 7% WPI and that based on the restricted range of movement he had of his left shoulder he assessed the appellant had
1% WPI. No issue has been taken either with the Medical Assessor’s findings relating to the appellant’s shoulders or his assessment of the appellant’s permanent impairment based on those findings.The Medical Assessor also explained that based on his findings from his examination of the appellant’s cervical spine he correlated the appellant’s impairment with DRE Category II. No issue has been taken with the Medical Assessor’s findings or his correlating his findings with the criteria for DRE Category II.
With respect to the application of paragraphs 4.33-4.35 of the Guidelines the Medical Assessor said:
“It is considered that Mr He’s neck – related complaints contribute in part to negative impacts upon activities of daily living. As such, a 1% waiting is taken into account with respect to this. As such, a 6% whole person impairment is determined.”
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 worker should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC contained a demonstrable error and to correct that error the Appeal Panel needed further information from the appellant relating to what effect the appellant’s injury to his cervical spine has on his activities of daily living. The Appeal Panel consequently appointed Medical Assessor Kuru, one of its members, to conduct that examination and report to it on it. Medical Assessor Kuru’s report is copied below.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor misapplied paragraphs 4.33-4.35 of the Guidelines and did not correctly undertake the task of determining what additional impairment ought to be added in accordance with those paragraphs. The appellant submitted that the MAC does not indicate whether the Medical Assessor carried out a comparative process of his capabilities before injury and his capabilities subsequently. The appellant submitted that the Medical Assessor did not elicit any useful history to determine the effect that his injury has on his various activities of daily living.
The appellant submitted that the Medical Assessor did not provide adequate reasons for adding only 1% for the effect his injury to his cervical spine has on his activities of daily living.
In reply, the respondent submitted that the Medical Assessor used his clinical judgment to assess the effect of the appellant’s injury on his activities of daily living. The respondent submitted that the Medical Assessor was not required to provide lengthy or elaborate reasons for his assessment and that his assessment was based on his examination and the available evidence and was sufficient in the circumstances.
The respondent noted that Dr Guirgis, whom the appellant qualified to provide an expert opinion, did not assess the appellant had any impairment for the effect the appellant’s cervical spine injury has on his activities of daily living.
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.
The Appeal Panel agrees with the appellant’s submissions that the Medical Assessor did not provide adequate reasons for adding 1% WPI for the effect the appellant’s cervical spine injury has on his activities of daily living. It is now trite that a Medical Assessor is required to explain the actual path of his or her reasoning for the assessment of impairment in sufficient detail such that the parties can comprehend the assessment and further an Appeal Panel is able to discern whether or not there is error.[2] Here, the Medical Assessor did not in a sufficient way detail the extent to which the appellant’s cervical spine injury affected the various elements of the appellant’s activities of daily living. Whilst the Medical Assessor noted that the appellant had reported to him experiencing difficulty with day to day tasks, the Medical Assessor did not, based on what is in the MAC, elicit from the appellant what tasks he had difficulty with and why. The Medical Assessor did not seek to determine whether it was the appellant’s shoulder pain and limitation of movement of his shoulders that impeded whatever restriction the appellant has with his activities of daily living, or whether whatever restriction he did have was due to his cervical spine injury.
[2] See for example Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [55]; State of New South Wales (NSW) Department of Education) v Kaur [2016] NSWSC 346 at [26]
In short, the Appeal Panel considers that the Medical Assessor’s analysis of the effect the appellant’s injury has on his activities of daily living does not reveal adequately why the Medical Assessor added 1% WPI, and not 0%, 2% or 3% WPI. That is an error such that the MAC contains a demonstrable error.
As mentioned earlier, because the MAC contains a demonstrable error the Appeal Panel must correct that error, and to that end, the Appeal Panel had Medical Assessor Kuru examine the appellant. That examination occurred on 4 July 2025, following which the Medical Assessor provided the Appeal Panel with the following report:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-W29481/24 |
| Appellant: | Zhengang He |
| Respondent: | Miele Australia Pty Limited |
| Date of Determination: | 30 June 2025 |
| Examination Conducted By: | Robert Kuru |
| Date of Examination: | 4 July 2025 |
1. The workers medical history, where it differs from previous records
Mr He confirmed the mechanism of injury as documented in the previous MAC. As he was trying to lift a dishwasher, his left knee twisted and buckled. He immediately felt pain in his left knee and shoulder. He presented the following day to his doctor, who assessed his knee. He presented the following day to his general practitioner. Over the course of a month, pain in his right shoulder deteriorated although the pain in his left knee improved. He underwent an MRI of the shoulder and was referred to Dr Hughes, Orthopaedic Surgeon. An injection into the shoulder and possible surgery was discussed but Mr He elected to continue nonoperatively.
Interestingly, he says that after a year or so, the pain in his shoulder decreased. Mr He told me that he took annual leave and holidays but after a year or so, had a return to work on restricted duties. Mr He ultimately elected not to continue with his employment.
During his period of light duties, he noted he was relying more and more on his left arm and he started developing some pain over his left shoulder. He said around that time, he also started noticing pain, particularly on rotation of his neck.
With respect to current symptoms, he has ongoing pain over the right shoulder with restricted movement. He has lesser pain in the left shoulder but says he has good movement. He has pain on rotation and extension in his neck. He also reports pain in his lower back, extending into his right leg.
He no longer has any active physiotherapy. He does some light self-supervised exercises. He intermittently takes paracetamol.
Mr He said subsequent to his injuries and stopping work, he has become depressed. He reports disturbed sleep. He finds whilst he is tired, he finds it difficult to get to sleep and regularly is checking his phone. He says at times, his lack of sleep is a bigger issue for him than the pain in his shoulder. He also notes he has to get up multiple times a night to urinate, which he also says is disruptive for sleep. Mr He did not say that his disturbed sleep was due to pain.
He currently lives in a one bedroom apartment with his son. They moved here three years ago from another apartment, as they were unable to afford the rent. Mr He says the living situation was comfortable until his son’s girlfriend moved in. He sleeps on the sofa in the lounge room. He makes his bed and packs it away daily. He spends his day reading and watching TikTok videos. He does not actually play chess but he enjoys watching games of chess on his phone. Subsequent to stopping work, Mr He said he has become socially isolated. Visiting clients gave him the opportunity to talk to people. He does not have an established social network. He does go to the local library but finds it difficult to talk to people.
Mr He indicated that he goes for a 1km walk every evening.
Mr He is independent with personal care. He said most of the housework has always been completed by his son but he does contribute and did not indicate any restriction on the basis of injury to his neck.
2. Additional history since the original Medical Assessment Certificate was performed
Nil.
3. Findings on clinical examination
On examination Mr He was a well looking man in no obvious distress. Whilst taking the history, he had a rather animated fashion and was able to demonstrate the mechanism of original injury whilst lifting. During the history, Mr He was observed to have free and unrestricted movement in his neck.
On formal examination, Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Neurological examination of the lower limbs demonstrated symmetrical knee and ankle reflexes with no clonus. Upper limb reflexes similarly were symmetrical with a negative Hoffman test. There was generalised mild weakness in th right upper limb, which Mr He indicated was causing pain in his shoulder.
Range of motion in the cervical spine demonstrated normal flexion but restricted extension. Rotation was to two-thirds of the expected range bilaterally.
Range of motion in the shoulders was assessed as follows:
MOVEMENT RIGHT LEFT Flexion 90° 180° Extension 10° 40° Abduction 90° 180° Adduction 20° 30° Internal rotation 80° 80° External rotation 80° 80° 4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been undertaken.
With respect to assessment of impairment for restriction of activities of daily living per SIRA 28 4.34, the additional impairment for restriction of activities of daily living is “only to be added if there is a difference in activity levels recorded and compared to the worker’s status prior to injury”. Mr He did not indicate any significant alteration in his ability to undertake household tasks. Mr He did not engage in regular sporting or recreational activities either pre or post injury.
On this basis, 0% whole person impairment per SIRA 28 4.34 is assessed. I note this is consistent with the assessment of Dr Guirgis dated the 17th November 2023. In Dr Diebolds report dated the 24 January 2024, 1% WPI is assessed for restriction of ADL on the basis of ‘inhibition of outdoor activity’. Mr He did not report a reduction in his outdoor activities consequent to neck injury at the time of my review. With respect to the MAC by Assessor Croker dated the 3 March 2025, I note he assessed 1% WPI for restriction of ADL on the basis of ‘difficulty with “day to day tasks”’ and ‘sleep disruption as a consequence of pain’ although the source of the restriction and of the pain causing sleep disturbance is not further described. Mr He did not report sleep disturbance or restriction of ADL due to neck pain at the time of my review.”
The Appeal Panel adopts Medical Assessor Kuru’s report[3], but with the following qualification.
[3] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88]
Medical Assessor Kuru has identified that there has been no real practical impact on the appellant’s activities of daily living due to the appellant’s cervical spine injury. That is, nothing that the appellant did before his injury has been affected by the symptoms from his cervical spine injury. He remains independent with his personal care, he contributes to the housework, and he is able to make and pack away his bedding each day. Based on the history Medical Assessor Kuru obtained the appellant’s cervical spine injury does not impact adversely on his sleep. The appellant did not reveal to Medical Assessor Kuru or in his statement that prior to his injury he engaged in yard, garden, sport or recreational activities. The appellant presently is able to walk 1 kilometre a day. However, the fact that the appellant did not engage in any substantial outdoor activity prior to his injury, does not mean that he would not have done so at some future time. His opportunity to now do so would be adversely impacted by the pain he now experiences from his cervical spine injury and the restricted movement he has consequent upon that. For that reason, the Appeal Panel considers that 1% WPI should be added in accordance with paragraphs 4.33-4.35 of the Guidelines to the base rate of 5%WPI he has by virtue of his cervical spine signs meeting the criteria of DRE Category II. His cervical injury is not such that it could be rated above 1% WPI, noting that his injury has no impact on his ability to carry out home tasks or personal care.
Further, and merely for the sake of comparison and checking, the Appeal Panel notes that 1% WPI is more than what Dr Guirgis assessed and the equivalent of what Dr Rowe assessed. Hence, when the Appeal Panel corrects the demonstrable error, the same result is achieved.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 March 2025 should be confirmed.
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