Honey v Murray Constructions Pty Ltd
[2025] NSWPICMP 375
•29 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Honey v Murray Constructions Pty Ltd [2025] NSWPICMP 375 |
| APPELLANT: | Callum Honey |
| RESPONDENT: | Murray Constructions Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 29 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the cervical spine; worker appealed submitting insufficient findings and inadequate reasons for failing to find non-verifiable radiculopathy; Held – no error found by Appeal Panel; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 February 2025 the worker Mr Callum Honey (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 January 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).
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.
The appellant did not request that he be re-examined by a Medical Assessor who was also a member of the Appeal Panel. At least this is what was indicated in the formal part of the Appeal form. In his submissions he asked for re-assessment and it is not clear whether that meant re-examination was in fact being requested.
However, as a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
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 matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of injury: 20/08/2018 Deemed
Body parts/systems referred: Left upper extremity (shoulder)
Right upper extremity (shoulder)
Cervical spine
Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying permanent impairment as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | ||
| Left upper extremity (shoulder) | 20/08/2018 Deemed | P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 | 11 | 0 | 11 | |||
| Right upper extremity (shoulder) | 20/08/2018 Deemed | 2 | 0 | 2 | ||||
| Cervical spine | 20/08/2018 Deemed | P 392 T 15-5 | 0 | 0 | 0 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||||
The worker appealed.
There is no complaint on appeal about the assessment for the left and right upper extremities (shoulders). The appeal concerns only the assessment of 0% whole person impairment (WPI) for the cervical spine.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:
(a) failure to properly assess the cervical spine;
(b) did not acknowledge the history of radiation of symptoms from cervical spine into both arms;
(c) if he had made a proper assessment he would have found non -verifiable radiculopathy and assessed DRE category II (5%) and then made an allowance for ADLs;
(d) this is supported by the final records which include that he has had a left cervical injection at C5/6;
(e) both independent medical experts (IMEs) qualified on behalf of the parties assessed DRE category II - Dr Gher (qualified on behalf of the appellant assessed 5% with a 3% allowance for ADLs (8%)) and Dr Kong (qualified on behalf of the respondent assessed 5% with a 2 % allowance for ADLs (7%)), and
(f) his findings are against the weight of the evidence.
In summary, the respondent employer Murray Constructions Pty Ltd (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied. The Medical Assessor must be read as a whole to determine whether adequate reasoning has been provided.
The Medical Assessor recorded the following history:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On the date of injury, Mr Honey was at work lifting heavy steel plates over threaded bolts. When the plate did not seat, he went to pull it up and felt pain in his left shoulder. As he was sitting in the truck after the incident, he found he was unable to move his shoulder and arm. He reported his injury to his boss but was told to continue with his duties.
The following day, the pain was worse and he presented to either a Physiotherapist or General Practitioner (he was unable to recall which). He went on to have x-rays and ultrasound and an MRI.
He was referred to Dr Jackson, an Orthopaedic Surgeon. He diagnosed a rotator cuff tear and undertook a subacromial decompression and repair of the supraspinatus on 19/12/2018.
Mr Honey reports he was in a sling for a prolonged period of time after this and unfortunately went on to have ongoing pain and stiffness. He was diagnosed as having a frozen shoulder and underwent a revision procedure under Dr Jackson on 10/07/2019 in the form of a revision labral and cuff debridement and capsulectomy.
Unfortunately, this was not associated with significant improvement in his symptoms. He then presented to another Orthopaedic Surgeon, Dr Ek. On 10/02/2020 he undertook further arthroscopy involving further debridement and a biceps tenodesis.
Mr Honey reports this procedure also was of no benefit.He returned to work on light duties progressing to full duties with worsening pain in his left shoulder. He then started noticing getting similar pains in his right shoulder and then his neck.
A clinical letter from Dr Frawley, another Orthopaedic Surgeon, dated 03/08/2020 notes the onset of pain in the right shoulder earlier in 2020 when Mr Honey ‘was recovering from the third operation on his left shoulder’. Dr Frawley notes a relatively benign examination and x-ray of the right shoulder.
With ongoing neck pain and headaches, Mr Honey was referred to Dr Nair, Spinal Surgeon. Dr Nair surmised Mr Honey simultaneously had C5/6 and C6/7 disc protrusions and recommended a foraminal steroid injection.
· Present treatment:
For the left shoulder, Mr Honey has stopped rehabilitation. He intermittently takes ibuprofen, Lyrica and Amitriptyline.
For the right shoulder, he has not had a rehabilitation program. He has not had subacromial steroids.
For the cervical spine, he intermittently sees a Chiropractor. He has not been engaged in an isometric exercise program. He had no significant response to a steroid injection at C5/6.
· Present symptoms:
In the right shoulder, he has pain over the lateral half of the trapezius and lateral arm to the elbow. He is unable to lift his arm above 90°. He is uncomfortable driving, sitting or travelling any significant periods of time.
For the right shoulder, he has intermittent pain in the front of the right shoulder.
In the cervical spine, he has pain down the left hand side of his neck radiating to the shoulder. He has occasional tingles in all fingers of the left hand.
· Details of any previous or subsequent accidents, injuries or condition:
Mr Honey denies any previous injuries to his shoulders or neck. He did have a humeral fracture at 14 years of age.
· General health:
His general health is otherwise good. He takes no regular medications and has no allergies.
· Work history including previous work history if relevant:
Nil relevant.
· Social activities/ADL:
Mr Honey previously enjoyed motor bike riding, fishing, go-karting and snowboarding but is now restricted due to pain and restricted movement in his shoulders.”
The Medical Assessor made the following comment in relation to special investigations:
“I was able to review no imaging related to the injuries today.”
The Appeal Panel considers that this means that he did not view the films but he notes he has had regard to the material in the referral, which the Appeal panel notes included the imaging reports. The Appeal panel has reviewed the imaging reports.
The Medical Assessor conducted an examination and recorded his findings as follows:
“On examination, he was a well-looking young man in no obvious distress.
Romberg’s test is negative. Trendelenburg’s test is normal. Heel-toe stance is normal. Upper limb reflexes are symmetrical with a negative Hoffman test. Peripheral power is intact.
Range of motion in the shoulders is assessed as follows:
MOVEMENT
LEFT
RIGHT
Flexion
80°
160°
Extension
20°
40°
Abduction
80°
160°
Adduction
20°
30°
Internal rotation
40°
80°
External rotation
40°
80°
There were well-healed arthroscopic portals around the left shoulder. There is a 2cm scar anteriorly consistent with biceps tenodesis.
Mr Honey demonstrated a full, symmetrical range of motion of the neck without evidence of dysmetria.”
The Medical Assessor summarised the injury and diagnosis as follows:
“● Summary of injuries and diagnoses:
Mr Honey sustained an injury to his left rotator cuff lifting a heavy steel plate. Unfortunately, he has had multiple surgical procedures which have not been helpful for pain and restricted movement in his shoulder. He is subsequently developing pain in his right shoulder. He has also developed pain in his neck and headaches.
· Consistency of presentation
Mr Honey was co-operative throughout the assessment.”
The Medical Assessor explained that in making his assessment he has taken into account the following:
“A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.”
He explained his assessment of 0% for the cervical spine as follows:
“The cervical spine is assessed according to AMA-5, page 392, Table 15-5. On the basis of there being no significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment and no documented alteration in structural integrity the cervical spine was assessed as DRE Cervical Category I (0% whole person impairment).”
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“With respect to the report by Dr Doig dated 05/01/2021, I am in agreement with his assessment of impairment for both the left and right shoulders. Dr Doig has not assessed impairment for the cervical spine.
With respect to the report by Dr Gehr dated 07/06/2024, I found greater range of motion in both shoulders and hence have assessed lesser impairment. I did not make findings of asymmetrical movement or dysmetria in the cervical spine and have assessed it as DRE Cervical Category I as opposed to Category II.
With respect to the report by Dr Khong dated 06/06/2024, again I did not make findings of asymmetrical movement in the cervical spine and have assessed the cervical spine as DRE Category I rather than Category II.”
The appellant complains on appeal that the Medical Assessor did not adequately explain why he did not find a rateable impairment when the appellant complained of radiation of pain down the left arm.
The Medical Assessor recorded a history of present symptoms as follows:
“In the cervical spine, he has pain down the left hand side of his neck radiating to the shoulder. He has occasional tingles in all fingers of the left hand.”
The Medical Assessor is clearly cognisant of the appellant’s complaints. However the complaint of pain must be assessed in the context the clinical findings on the day of examination.
Moreover, the complaints of pain do not amount to non-verifiable radiculopathy.
AMA 5 Box 15-1 defines non-verifiable radicular root pain as pain that is in the distribution of a nerve root but has no identifiable origin; that is, there are no objective physical, imaging, or electromyographic findings.
Pain extending from the neck to the shoulder is not a non-verifiable radicular complain as it is not in the distribution of a nerve root.
Occasional tingling in all of the fingers of the left hand is also not a non-verifiable radicular complaint, as it is not in a radicular pattern. The skin areas innervated by the cervical nerve roots are demonstrated in Figure 15-2, AMA5 page 377.
The Medical Assessor is also clearly cognisant of the assessments by the IMEs qualified on behalf of the parties who each assessed DRE category II for the cervical spine.
The Panel further notes that neither of the IMEs qualified on behalf of the parties identified non-verifiable radicular complaints.
The Medical Assessor is entitled to rely on his clinical findings on the day of examination.
The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings.
The Medical Assessor is entitled to rely on his examination findings on the day of assessment and in respect of the cervical spine, there was a normal range of movement (ROM) found which was found to be symmetrical and dysmetria was not found to be present. This contrasts with the findings of the other IMEs but it is the clinical findings on the day of examination that prevail noting that the Medical Assessor has taken an adequate history and is cognisant of the other medial opinions and explained why his assessment differs.
The Medical Assessor has made clear when the MAC is read as a whole that there are no positive findings present when the cervical spine has been examined by him. There is a normal ROM, found which is symmetrical. There is no dysmetria found to be present. There are no neurological deficits found by the Medical Assessor. The Medical Assessor has had regard to the other opinions before him and explained why his findings differed. The Medical Assessor’s role is to conduct an independent assessment and he is entitled to rely on his clinical findings on the day of examination.
The Medical Assessor has clearly recorded his examination findings as set out above. The Appeal panel considers that the examination was adequate and covered all requisite aspects. The clinical finding is of full symmetrical range of movement no neurological deficits and with no dysmetria present.
He has explained adequately why his opinion differs from the other medical opinion that was in evidence before him.
What the Medical Assessor has found in accordance with his examination findings on the day of assessment is that there is no rateable impairment for the cervical spine. This is adequately explained when the MAC is read as a whole. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no error and the Appeal Panel considers that the reasoning given by the Medical Assessor was adequate.
For these reasons, the Appeal Panel has determined that the MAC issued on
8 January 2025 should be confirmed.
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