Islam v 199 George Street Hotel Pty Ltd t/as Four Seasons Hotel Sydney

DETERMINATION OF APPEAL PANEL
CITATION:	Islam v 199 George Street Hotel Pty Ltd t/as Four Seasons Hotel Sydney [2024] NSWPICMP 68
APPELLANT:	MD Kamrul Islam
RESPONDENT:	199 George Street Hotel Pty Ltd t/as Four Seasons Hotel Sydney
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	14 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in respect of his assessment of shoulder impairment, in his application of section 323, and failed to give adequate reasons in the deduction he made pursuant to section; the Panel agreed; re-examination was arranged; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 September 2023 MD Kamrul Islam (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
22 August 2023.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because we determined that the Medical Assessor erred with respect to his assessment of shoulder impairment and range of movement, and his application of s 323 of the 1998 Act.

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.
In addition, the Panel noted that there was an absence of medical records from various health providers between 2009 and 2012, just prior to the injury the subject of appeal. Accordingly, the Panel directed the appellant to provide full records of all medical providers to the Personal Injury Commission (Commission). These documents have now been provided, and have been taken into account in our determination.

Further medical examination

Medical Assessor Chris Oates of the Appeal Panel conducted an examination of the worker on 1 February 2024 and reported to the Appeal Panel.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in respect of his assessment of shoulder impairment, in his application of s 323 of the 1998 Act, and failed to give adequate reasons.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the left upper extremity (shoulder), the right upper extremity (shoulder) and the lumbar spine resulting from an injury on 29 February 2012.
The Medical Assessor obtained the following history:
“On 29/02/12, Mr Islam was carrying a tray of ice which he estimated weighed about 15kg. As he did this, he experienced pain in his right shoulder complex. The condition was initially managed conservatively.
At that stage he was only under his General Practitioner. He was able to continue at work on selected duties. Some time later, thought to be possibly in March 2012 or more likely in May 2012, he started complaining of lower back pain.
There seems to have been a lot of disharmony between Mr Islam, the Human Resources group at the hotel and also his insurer. In his accounts of his circumstances, he describes what appears to be some form of coercion into producing a certificate of fitness for full duties, together with a letter of resignation which took effect from 06/09/12. In this development, he describes a possible threat of deportation. His permanent residence in Australia came through in January 2013.
He described that the condition of his lower back and his right shoulder increased. Again, his clinical management remained conservative for several further years.
Cortisone injections were administered to both shoulders but this does not seem to have given him a great deal of improvement. Eventually he came under the care of Specialist Shoulder Surgeon, Dr George Murrell. On 27/04/21, an arthroscopic procedure was conducted on the right shoulder. In reviewing Dr Murrell’s operation reports, this was a repair of a partial thickness tear of the supraspinatus. At the same time there was an acromio-plasty. According to Dr Murrell’s reports, this appears to have given Mr Islam a fairly reasonable result. Cortisone injections were still administered to his left shoulder.
His lower back was managed conservatively. He was on one occasion, seen by Specialist Spinal Surgeon, Dr Ashish Diwan. No further specific management continued at that stage, although Mr Islam believes that it was suggested that he should have surgery to his lower back. This never went ahead.”
Present treatment was noted as follows: “He takes quite extensive analgesics and anti-inflammatories. These cause a gastro-intestinal irritation, for which he takes appropriate medication.”
Present symptoms were noted as follows:
“Pain in his lower back radiating down his right leg and to a lesser extent, the left leg.
Pain in the right shoulder with reduced movement and power. The right side is more affected than the left.
The activities of standing, bending and lifting are all grossly reduced and make his condition, particularly his lower back, worse.”
When asked to provide “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor said:
“On 18/05/18, he was moving a wheelie bin. He apparently slipped. This resulted in a fall in which he claims to have hurt his head, neck, right arm, wrist, shoulder, back and his left leg. Most of these conditions apparently resolved, although in trawling through the General Practitioner reports of the time, his back and right shoulder condition are described to have continued well into the very much latter part of 2009.”
The Medical Assessor then set out his findings on physical examination as follows:
“Physically he was very deconditioned and gave the impression of being very grossly dysfunctional and in a great deal of pain.
Cervical Spine. There was pain throughout the neck with tenderness in the para-cervical musculature on the right and to a lesser extent on the left. Movement of the head and neck was absolutely minimal. It was very obvious to see that there was a large absence of any reasonable effort being conducted.
Upper Limbs. No significant features were demonstrated with the elbows, wrists, hands or any of the digits, although earlier on there was a very voluntary restricted range of movement of the right wrist, although later this improved towards a normal response. No significant neurological features were identified, although sensation was perceived more on the left side than on the right. Reflexes were present and reasonably equivalent at the elbows (C5 and 7) and at the wrists (C6).
It was very obvious that at this part of the assessment that his voluntary effort at movement was very lacking.
Back. Pain was located throughout the lumbar spine, radiating towards the right. There was an excessive pain response to the gentlest of physical examination. The spinal curvatures were normal. There was no scoliosis or muscle spasm. On forward flexion he had gross restriction of movement, reaching only as far as the mid-thighs with a McRae-Wright movement of 1.5cm. This is very stiff. 5cm is the lower limit of normal. Lateral flexion and rotation to each side and extension were all very grossly reduced, again with a very clear demonstration of minimal effort.
Lower Limbs. He walked reasonably normally. He was unable to squat and could not effectively walk or stand on his heels or toes.
The legs were equivalent in length and in circumference at the thighs. For reasons which are not clear, there was a 1.5cm of circumferential reduction of the right calf. I have not seen this described elsewhere.
No significant features were demonstrated with the hips, knee or ankles. Power of the extensor hallucis longus (L5) was equivalent.
Sensation was globally reduced in the right leg and to a large part of the left leg. On the right side, this extended up to the level of the mid-abdomen.
Reflexes were present and equivalent at the knees (L4) and at the ankles (S1), although were quite difficult to demonstrate. Power of the extensor hallucis longus (L5) was equivalent.”
The Medical Assessor then set out details of the radiological material he had, to which we will refer more fully below.
The Medical Assessor summarised the injuries and diagnoses as follows:
“This was a particularly difficult case to unravel and to obtain an accurate and fair result for all sides of the equation. The history goes back to the early part of 2012 when Mr Islam was carrying a tray of ice. In the history there is no description of any kind of bending or bodily twisting. Initially it is his right shoulder which is described as being hurt. Nearly two years later, the same shoulder is described on the work capacity certificate by his General Practitioner at the time, Dr Nazma Alam in late November 2009. The available history suggests that the condition of the lower back did not arise until March or possibly May of 2012. I cannot find accurate details. Whilst Mr Islam probably did experience some form of dysfunction of his right shoulder in this event of February 2012, there is ample evidence of injuring his back and right shoulder nearly four years beforehand, in May 2008. As already mentioned, this has been amply described by his General Practitioner at the time on the work capacity certificates.
The condition of the left shoulder seems almost to have crept into the clinical picture, although I cannot find any specific detail to identify the mechanism of how this is involved. The earlier radiological evidence demonstrates relatively minor acromio-clavicular degenerative change and sub-acromial bursitis.
The situation is also very complicated by the way that Mr Islam presented. At this assessment he was extremely pain and disability focused and it was all too obvious that any and all physical movements requested of him were extensively diluted with gross lack of any reasonable physical effort. Nevertheless, at this assessment there was evidence of restriction of movement of the shoulders and limitation of movement and functional capacity of the lower back, although with no neurological features from any of these structural systems. Bearing in mind that this event occurred over eleven years ago, it would reasonably be anticipated that clinical assessments taken over the last six months would be reasonably consistent. This, however is far from the case when we compare the range of shoulder movement recorded by Specialist Surgeon,
Dr Sikander Khan on 08/03/23, Specialist Orthopaedic Surgeon, Dr Stephen Rimmer on 11/05/23 and this most recent assessment of 10/08/23. All of these recordings are vastly different.
For the most part, Mr Islam’s treatment has been conservative. An arthroscopy to the right shoulder was conducted in April 2021, some nine years after the event and seems to have given him limited improvement although at this assessment, the range of movement of this each side was surprisingly similar.
The lumbar spine condition tends to escape credibility with having anything to do with this particular event of February 2012.
One clinical finding which I demonstrated and which I cannot find anywhere else in the extensive clinical file was muscle wasting of 1.5cm circumference of the right calf in comparison with the left. The overall prognosis of Mr Islam’s condition must be fairly poor, particularly with his presentation stance of such a high index and focus of pain and disability.
Most regrettably, Mr Islam’s presentation was very inconsistent, as described. This was also extensively demonstrated by Specialist Orthopaedic Surgeon, Dr Stephen Rimmer in his four reports culminating in his most recent report of 11/05/23.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the Medical Assessor replied “Yes” adding:
“Attention is drawn to the previous injury to Mr Islam which occurred in mid-May 2008. In this, he slipped and fell, hurting his head, neck, right arm, wrist, shoulder, back and left leg. All of the issues settled down with the exception of his right shoulder and his back, as described by Dr Nazma Alam, who was his GP at the time in his report of 26/11/09. Therefore, it is assessed that there is a significant pre-existing component for Mr Islam’s right shoulder and lumbar spine which was pre-existing, and which should be taken into account.”
He added:
“There are two features which would very reasonably contribute to a deduction of impairment. The first and most obvious is the effects of the previous injury in May 2008, which affected Mr Islam’s lumbar spine and also his right shoulder.
The other factor is addressed in the SIRA Guidelines Page 7, Paragraph 1.36a and specifically looks at the issue of an inconsistent presentation which was the way Mr Islam very unfortunately presented at this assessment. This paragraph draws attention that measurements must be plausible and consistent. This subsection goes on that the assessor “may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing”. To that end, the inconsistency demonstrated by Mr Islam has been extensively mentioned in this report. Therefore, a deduction of one-half for the impairment of each shoulder is applied.
When it comes to the lumbar spine, there is no convincing clinical evidence or description as to how or why Mr Islam sustained a lower back injury specifically associated with this occasion in February 2012. There is however, extensive evidence that he experienced an injury to his lower back in May 2008, which went on to generate a whole person impairment of 5%. Bearing in mind the rather nebulous nature of injury to his lumbar spine associated with the event of February 2012, together with his inconsistent presentation and the previous injury to his lower back in May 2008, a deduction of that original 5%, (in this case described as a deduction of fivesevenths), is applied.”
The Medical Assessor assessed a total of 10% WPI. He assessed 7% WPI for the left upper extremity from which he deducted one-half, 8% WPI for the right upper extremity, from which he again deducted one-half, and 7% WPI for the lumbar spine from which he deducted 5/7ths.
The Medical Assessor then turned to consider the other medical evidence he had and said:
“When examined by Dr Sikander Khan, particularly in his more recent report of 08/03/23, Dr Khan advised that there was no evidence of abnormal illness behaviour (which was pleasing to see although was very different to the experiences of
Dr Stephen Rimmer and myself). He also advised that there was no pre-existing condition which would necessitate the application of a deduction. With great respect, I would draw attention to the previous injury of May 2008 where, in the final available General Practitioner records, it was still causing problems with Mr Islam in late November 2009.
Specialist Orthopaedic Surgeon, Dr Stephen Rimmer saw Mr Islam just over two months later. He had seen him on three previous occasions and on every occasion, has recorded that there were gross inconsistencies with extensive abnormal illness behaviour. I would agree with much of Dr Stephen Rimmer’s views on the presentation of Mr Islam, although I do believe that there is some evidence of continuing whole person impairment associated with this particular event, as opposed to a determination of 0%, which Dr Rimmer gave.”
The appellant makes the following submissions:
(a)     the Medical Assessor applied erroneous principles to his task in two respects. The first was in averaging the findings of himself and others as to the range of movement scores for shoulder impairment of assessment. His task was to form his own clinical assessment of the applicant as he presented on the day. It was not to decide between the competing assessments of Dr Khan and Dr Rimmer or to produce a compromise between them;
(b)     his obligation was to perform an examination and assessment in accordance with the Guidelines for the Evaluation of Permanent Impairment. If he did not accept the reliability of his own examination findings, it was open to him to say so and provide his evaluation in accordance with those Guidelines. He did not do so and therefore erred;
(c)     leaving aside this obvious error in his methodology he also appears to have been influenced by the opinions of Dr Rimmer, whose heavily punctuated and emphasized opinion disputed injury entirely (contrary to the concession made by the respondent). From a lay perspective the obvious outlier was Dr Rimmer. The Medical Assessor's own findings were much closer to those of Dr Khan. In taking the approach he did the Medical Assessor took into account irrelevant considerations and consequently applied incorrect criteria;
(d)     the application of s 323 of the 1998 Act has been the subject of a number of Supreme Court and Court of Appeal decisions. The Medical Assessor did not apply any of the principles articulated in those decisions. He did not even refer to the text of the section itself;
(e)     his approach appears to have been that the applicant had a previous injury, the nature of which he did not identify, which on his own account remained symptomatic until the very much latter part of 2009 (at least two years and some months prior to the subject injury of 29 February 2012). Therefore a deduction was warranted. This was not a correct application of principle and was a demonstrable error, not only in what he did but in his failure to expose his reasons;
(f)     it might be inferred that he concluded or assumed that the appellant was still symptomatic from his 2008 injury by February 2011. If he did, that was not a correct application of principle. His deduction of 5/7ths in respect of lumbar spine is apparently a deduction of what he assumed, believed or decided was the level of existing impairment at the time of injury. This much is clear from the decision in Cole v Wenaline [2010] NSWSC 78 which has been consistently applied ever since. See also Ryder vSundance Bakehouse [2015] NSWSC 526;
(g)     his failure to give reasons was of itself a demonstrable error; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254, and
(h)     the Medical Assessor's own evaluation is internally inconsistent to the point that it is evidently or demonstrably erroneous. He deducted 50% in respect of the right upper extremity assessment, because it had been the subject of an earlier injury. There is no explanation as to why he deducted the same proportion in respect of left upper extremity. This is either an error of principle in the application of the legislation or an error constituted by a failure to give reasons.

We have noted the respondent’s submissions but as we said earlier, because of the errors we identified in our preliminary assessment, a re-examination was arranged with Medical Assessor Oates.
He reported to the Panel as follows:
“● Brief history of the incident / onset of symptoms and of subsequent related events including treatment
Mr Islam said he is right hand dominant.
He said on 29/02/2012, whilst working in the kitchen setting up a buffet breakfast at the Four Seasons Hotel, he was carrying a heavy tray of ice, approximately 15kg, when he felt sudden right shoulder pain. He reported to his supervisor but continued to work with discomfort. It did not improve.
He attended Dr Nashed, GP at East Lakes, on 05/03/2012 with continuing right shoulder pain which was getting worse. He was sent for an x-ray and ultrasound and given a day off work. He returned to work on 06/03/2012 but could not continue working and was sent home by the employer.
He subsequently saw Dr Nashed and the ultrasound was said to show bursitis and he suggested either referral to a specialist or a trial of anti-inflammatory medication. He chose the latter.
He returned to work on normal duties on 10/03/2012 as a chef but had continuing shoulder pain. A week later he saw Dr Orphanides, GP, Mascot, as symptoms had spread from the shoulder to the right side of the neck and also down the arm to the elbow and wrist. The GP performed further scans and then recommended a physiotherapist.
He was then sent to the company doctor, Dr Rockman, Sydney, on 20/03/2012. He was told to attend Dr Rockman as his treating doctor. Thereafter, he saw another GP, Dr Choudhury at Ingleburn because he had developed low back pain without any specific incident whilst he was performing suitable duties, which involved prolonged standing and there was still lifting involved, although the lifting was restricted.
Dr Choudhury ordered a CT scan and told him he had an injured lumbar disc. He was told to see the company doctor regarding back pain and have the suitable duties, which involved prolonged standing and lifting, modified. Dr Rockman then diagnosed a rotator cuff tear in the right shoulder and that he required physiotherapy.
He underwent an ultrasound-guided corticosteroid injection to the right shoulder on the recommendation of Dr Rockman on 08/05/2012 which helped for a couple of weeks and then the shoulder returned to its usual state when he did repetitive work involving stirring, whisking and lifting.
He performed suitable duties for two months and then returned to pre-injury duties, which he did for two weeks, but had a flare-up of pain in the right shoulder and lower back.
He was sent for a lumbar spine MRI scan performed on 27/07/2012. Dr Rockman diagnosed a back injury from employment and that he was fit for suitable duties avoiding lifting over 5kg or work above shoulder height (on account of the right shoulder).
He continued suitable duties but in May 2012 he had an exacerbation of right shoulder and back pain. Dr Rockman recommended further investigations and continuation of physiotherapy, and that he should only do administrative duties. At work he walked around and checked supplies of hospitality materials.
His shoulder did not improve, so he saw another GP at East Lakes to have an MRI scan and a further corticosteroid injection.
In late July 2012, he noticed the development of symptoms in the left shoulder, which he thought was from over-using the left arm on account of continuing right shoulder pain. Dr Rockman recommended an ultrasound-guided corticosteroid injection to the left shoulder and this was done on 07/08/2012 which helped for a couple of weeks.
He continued on suitable duties and physiotherapy. He was sent to a rehabilitation provider.
In August 2012, he changed his treating doctor to a GP, Dr Alam at Rockdale, as he was having difficulty understanding Dr Rockman, so attended a Bangali speaking GP.
On 04/09/2012, he attended Dr Alam with the insurance case manager and rehabilitation case worker, and the insurer case manager told the GP she required a certificate certifying fitness for pre-injury duties. The GP gave him a trial of pre-injury duties certificate with review after one month, and in the meantime, he was to continue physiotherapy and analgesics.
When he went back to work, he was called in to see the Human Services Director who refused to accept the certificate for a work trial and she demanded that he return to the GP and tell him that he had fully recovered from his injuries and wanted a final certificate for pre-injury duties without any restrictions. He was also informed that he should bring a letter of resignation, otherwise he would be reported to immigration. As he was in the process of waiting for permanent residency at the time, he was fearful of being deported.
He returned to the GP and said he had trialled his pre-injury duties for two or three days and his back and shoulder were significantly improved and he wanted a final certificate. He did not tell the GP he had continuing shoulder and back symptoms at this time. He then resigned effective from 06/09/2012. At this point, the Human Services Director told him if he made any further claim to workers compensation, he risked being deported. He no longer discussed his continuing symptoms with GPs thereafter.
He changed GPs because of worsening shoulder pain to Dr Kolta and was referred for ultrasound scan of both shoulders in April 2013, given that his previous GP, Dr Alam, was now reluctant to treat him because of what had gone before. Bursitis was diagnosed in both shoulders and further corticosteroid injections were recommended, but he did not proceed as he had only got short-term effect from previous injections.
In 2013, he moved to Lakemba and started seeing Dr Shampa. He followed her when she moved her practice to Minto, as he had confidence in her. He had continuing bilateral shoulder pain and low back symptoms, and there was no further incident of injury. Dr Shampa organised further ultrasounds of the shoulders, and x-rays and CT scan of the lumbar spine performed on 26/04/2019, and she certified him unfit for all employment.
She referred him to Dr Trantalis, orthopaedic surgeon, but this examination was cancelled by the insurer.
He continued physiotherapy up until further treatment was declined by the insurer in October 2019 and over time, he had found that physiotherapy would help for one or two weeks but it did not settle his condition. He then had five treatments under Medicare and then paid for some treatment himself but could not afford to continue doing so.
He continued to see the GP monthly to obtain analgesics and was referred to Professor Murrell regarding his right shoulder and Dr Diwan for his neck and back in January 2020. He had an MRI scan of the spine and was recommended to have continuing physiotherapy and if this did not help, he advised surgery for the back firstly and then possibly neck surgery.
Professor Murrell recommended right shoulder surgery and he was booked on the public hospital waiting list in December 2019 because his claim had been declined following assessment by Dr Rimmer, IME.
He eventually had right shoulder surgery on 27/04/2021 at a private hospital but paid for by Medicare during the COVID restrictions. The operation helped the right shoulder initially for about six months, then the shoulder got sore again after he returned to work. Dr Murrell said there was no more treatment available for the right shoulder.
He ordered one or two further cortisone injections for the left shoulder but they did not help. He then offered surgery on the left shoulder as well but he did not take up that option. Thereafter, he continued regular medications.
·    Present treatment
He has Celebrex for about four days per week, during which he gets a 50-60% reduction in pain in the shoulders and back, and then has three days off this medication.
He will take Palexia once or twice a week if he has more severe pain. He takes Panadol almost every day. He has Pariet once daily whilst he is taking Celebrex for gastric side-effects. There is no other current treatment.
·    Present symptoms
He still gets pain in both shoulders, right greater than left, and low back pain radiating to the right posterior thigh down to the knee and part of the left thigh. There is a bit of numbness in the anterolateral right thigh and a sense of itchiness. There is no left leg numbness.
The shoulders are worse with lifting and carrying or repetitive use of the arms and actions such as holding the car steering wheel too long. His sleep is disturbed when he lies on either side because of shoulder pain. His back is worse with bending, standing and lifting. A heat pack and medications help his symptoms temporarily but are increasingly less effective.
·    Details of any previous or subsequent accidents, injuries or conditions
In May 2008, he slipped and fell backwards while pulling a large garbage bin when working part-time at Rydges. He injured his lower back and right shoulder and across the top of his back. He can’t recall if he had any time off work. He had scans and medications organised by the GP.
A dispute was raised with the Workers Compensation Commission. He received a 5% whole person impairment settlement for the lumbar spine. He worked for a further 12 months at Rydges.
In August 2011, whilst working for an agency as he recalls, he had sudden onset of right-sided neck pain but there was no specific incident. He thinks it may have been after doing work involving prolonged neck flexion. There was no radiation to the arms.
He went to the Emergency Department at Prince of Wales and was diagnosed with a muscle strain. This settled in one or two days with Panadeine Forte and he returned to work at agency jobs.
He has had no subsequent injury.
·    General health
This is good. He has had no prior surgery, no serious illness and was not on any regular medication.
·    Social activities/ ADL
His wife is not working. They have a daughter aged 17 and a son aged eight. He lives in an apartment with his wife and two children, and his brother-in-law.
He didn’t play any sport or do any hobbies before the injury and this is still the case. His wife and daughter do the housework. There is no yard work to do. He doesn’t smoke or drink alcohol.
He can usually manage activities of daily living of personal care OK but sometimes he has problems if extra pain is present.
FINDINGS ON PHSYCIAL EXAMINATION
He was shortish and of proportionate build with height 167cm and weight 66.3kg. He was of average slim build.
I explained to him the importance of demonstrating his best efforts so that an accurate assessment could be made for the basis of determining impairment and I feel that he was co-operative and gave a straightforward presentation.
Thoracolumbar spine
Lordosis was preserved. Flexion was two-thirds of normal with complaint of radiating pain to the right thigh. Extension full, lateral flexion to the right two-thirds and to the left three-quarters. Rotation in the thoracic spine was three-quarters of normal bilaterally.
Knee jerks were both of low amplitude and difficult to elicit. The ankle jerks were difficult to elicit in the standard position, but when kneeling on a chair the left ankle jerk was +2 and the right ankle jerk was absent, even with reinforcement. Plantar responses were both flexor.
Sensation was partially decreased to pin prick lateral right thigh and right leg. Power; right equals left.
Supine straight leg raising was positive on the right at 60° and negative on the left. There was no guarding. There was tenderness at the right sacroiliac area.
Thigh girth; right equals left equals 44cm at 10cm above the superior patellar pole. Leg girth; right 34cm, left 36cm at 14cm below the inferior patellar pole (maximal circumference).
Thus, there are three signs of radiculopathy on clinical examination, namely reduced right ankle jerk, positive Lasègue’s nerve stretch test on the right, and 2cm wasting of right calf.
Cervical spine
Full range of flexion and extension, lateral flexion two-thirds of normal bilaterally, and rotation two-thirds of normal bilaterally. No guarding. Slight tenderness right upper trapezius.
Reflexes, power and sensation in the upper limbs was normal. Upper arm girth; right equals left equals 26cm measured at 10cm above the elbow. Forearm girth; right 25.5cm, left 25cm measured at 5cm below the elbow.
Grip strength was equal bilaterally.
Right and left shoulders
There was no wasting. There was some tenderness over the right apex and to a lesser extent over the left apex. Active range of movement was measured with a goniometer. Flexion; right 130°, left 140°. Extension; right equals left equals 40°. Abduction; right 130°, left 150°. Adduction; right 40°, left 45°. External rotation; right equals left equals 90°. Internal rotation; right equals left equals 40°.
DETAILS AND DATES OF SPECIAL INVESTIGATIONS
The following investigations were available:
·    23/11/2010 – X-ray lumbar spine
·    30/11/2010 – CT lumbar spine
·    05/03/2012 – X-ray right shoulder
·    07/03/2012 – Ultrasound right shoulder
·    26/03/2012 – CT lumbar spine
·    20/06/2012 – MRI lumbar spine
·    27/07/2012 – X-ray and ultrasound left shoulder
·    07/08/2012 – Ultrasound-guided cortisone injection left shoulder
·    15/08/2012 – MRI scan both shoulders
·    10/04/2013 – X-ray cervical spine and ultrasound right shoulder
·    17/04/2013 – Ultrasound left shoulder
·    09/01/2015 – Ultrasound both shoulders
·    11/05/2015 – Ultrasound-guided injection right shoulder
·    25/05/2015 - Ultrasound-guided injection left shoulder
·   16/06/2017 – Ultrasound right shoulder and left shoulder, and x-rays of right shoulder and left shoulder
·    26/04/2019 – Ultrasound scan both shoulders
·    18/09/2019 – Ultrasound right and left shoulders for guided cortisone injections
·    10/01/2020 – X-ray cervical spine and lumbar spine
·    12/01/2020 – MRI scan cervical and lumbar spines and sacroiliac joints
·    19/05/2021 – Ultrasound left shoulder
·    21/11/2022- Ultrasound left shoulder
SUMMARY OF INJURIES AND DIAGNOSES
The injuries were to the right shoulder, lumbar spine and a consequential injury to the left shoulder.
The diagnoses are soft tissue injury to right and left shoulders with subacromial/subdeltoid bursitis and rotator cuff tendonitis, with partial-thickness supraspinatus tear.
For the lumbar spine, the diagnosis is L5/S1 disc protrusion.
PERMANENT IMPAIRMENT
Lumbar spine
There is evidence on clinical examination of three criteria for radiculopathy. These are (i) reflex asymmetry (ii) positive nerve root tension test (iii) calf atrophy. The impairment for lumbar radiculopathy is DRE Category III giving a range of 10-13% impairment of the whole person. Twelve percent is the appropriate impairment level, as there is interference with moderate to heavy activities of daily living.
Note is made of a previous permanent impairment award for the lumbar spine of 5% whole person impairment.
Right shoulder
For the right shoulder, there was measurable reproducible loss of active range of motion forming the basis for assessing an impairment.
Flexion 130° gives 3% upper extremity impairment, abduction 130° gives 2%, extension 40° gives 1% and internal rotation 40° gives 3%.
Adding these gives 9% upper extremity impairment, equivalent to 5% whole person impairment.
Left shoulder
For the left shoulder, there is also loss of active range of motion which forms the basis for assessing a permanent impairment.
Flexion 140° gives 3% upper extremity impairment, extension 40° gives 1%, abduction 150° gives 1% and internal rotation 40° gives 3%.
Adding these gives 8% upper extremity impairment, equivalent to 5% whole person impairment.
Apportionment
Note is made of a previous lumbar spine injury award of 5% WPI. He did resume normal duties as a chef for several years until the subject incident, hence justifying a one-tenth deduction for the effect of the previous injury, which did contribute to the currently assessed impairment.
12% minus 1.2% gives 10.8% rounded to 11% whole person impairment.
At the right shoulder, there is also evidence of a pre-existing injury and a one-tenth deduction is appropriate, as it was not at odds with the available evidence.
5% minus 0.5% gives 4.5% rounded to 5% whole person impairment.
There was no evidence of a pre-existing condition affecting the left shoulder, hence no indication for apportionment.
Combining 11% WPI from the lumbar spine with 5% from the right shoulder and 5% from the left shoulder gives 19% whole person impairment.”
The Panel agrees with the findings, detailed reasons and assessments made by Medical Assessor Oates.
It is noted that he referred to some 21 special investigations, as opposed to the nine documented by the Medical Assessor.
As the appellant pointed out, and we agree, the Medical Assessor’s reasons were inadequate in the context of what he described as a “a particularly difficult case to unravel…”
In addition, he failed to adequately explain the reasons for the deductions he made.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 August 2023 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:	W4975/23
Applicant:	MD Kamrul Islam
Respondent:	199 George Street Hotel Pty Ltd t/as Four Seasons Hotel Sydney

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 Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in 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. Left upper extremity (shoulder)	29/02/12	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	5%	Nil	5%
2. Right upper extremity	29/02/12	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	5%	1/10th	5%
3. Lumbar spine	29/02/12	Chap 4 P24	P 384 T 15-03	12%	1/10th	11%
Total % WPI (the Combined Table values of all sub-totals)					19%

[2024] NSWPICMP 68

14 February 2024