Lagana v MCBC Group Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Lagana v MCBC Group Pty Ltd [2024] NSWPICMP 755
APPELLANT:	Roy Lagana
RESPONDENT:	MCBC Group Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	4 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal in respect of a 100% deduction pursuant to section 323 for a pre-existing condition; parties agreed that worker had a consequential condition in the right shoulder following injury to the left shoulder on 17 December 2019; Medical Assessor (MA) determined that there was no consequential condition in the right shoulder and deducted 100% of the 11% whole person impairment assessed in the right shoulder; MA erred in determining there was no consequential condition in the right shoulder and also in failing to provide adequate reasons; Medical Appeal Panel reviewed the evidence and deducted one half pursuant to section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 July 2024 Roy Lagana (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 6 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 in the MAC of the Medical Assessor. 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).

RELEVANT FACTUAL BACKGROUND

The appellant suffered an injury to his left shoulder and back when he slipped on food scraps and fell during his employment with MCBC Group Pty Ltd (the respondent) on
17 December 2019. The appellant suffered a consequential condition in the right shoulder and developed a gastric ulcer and gastroesophageal reflux disease due to the medications taken after the injury on 17 December 2019.
Mr Lagana lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 7 February 2024 in which he claimed an amount of $156,540 in respect of 44% whole person impairment (WPI) of the left upper extremity, right upper extremity, digestive system and TEMSKI/scarring as a result of the injury on
17 December 2019.
On the 26 March 2024 proposed Consent Orders were filed as follows;
“1. Award for the respondent in relation to allegation of injury and/or consequential condition in relation to the applicant’s left elbow.
2. The matter is remitted to the President to assess:-
a) Injury to the left upper extremity/ shoulder on 17 December 2019
b) Consequential condition to the right upper extremity/ shoulder
c) Consequential condition to the upper digestive system
d) Scarring.”
The Medical Assessor examined the appellant on 23 July 2024 and assessed 23% WPI of the left upper extremity (shoulder) and then deducted one tenth for a pre-existing condition which resulted in an assessment of 21% WPI for the left upper extremity (shoulder). The Medical Assessor assessed 11% WPI of the right upper extremity and deducted 10/10ths for pre-existing condition which resulted in an assessment of 0% WPI for the right upper extremity (shoulder). The Medical Assessor assessed 17% WPI of the upper gastrointestinal tract and deducted one half for a pre-existing condition which resulted in an assessment of 9% WPI for the upper gastrointestinal tract. The Medical Assessor assessed 0% WPI for scarring. The total WPI, as a result of the injury on 17 December 2019, was 28%.

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 it was unnecessary for the appellant to undergo a further medical examination because there was sufficient information upon which to make a determination.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    the MAC contains demonstrable errors and /or the MAC is based on incorrect criteria in that the Medical Assessor has not appropriately determined the s 323 deduction;
(b)    there is no appeal in respect of the findings in the MAC regarding WPI assessment for the left upper extremity, upper gastrointestinal and scarring. The appeal is in respect to the Medical Assessor’s assessment in relation to the consequential left [sic] shoulder injury, as he has assessed 11% WPI but deducted 100% for pre-existing degeneration. This deduction has resulted in a 0% WPI in relation to the left shoulder [sic];
(c)    the role of the Medical Assessor is clearly defined by the Guidelines and in the assessment of WPI made by the Medical Assessor, he attempted to make a decision relating to liability in finding 100% deduction was attributable to pre-existing complaints;
(d)    the Medical Assessor stepped outside his role as a Medical Assessor in determining liability (Toll Pty Ltd v Ballantyne [2008] NSWWCCPD 46) and making a 100% deduction pursuant to s 323;
(e)    it is incumbent for a Medical Assessor to provide reasons for applying a deduction greater than 10%, and the 100% deduction is disproportionate with all available evidence;
(f)    the Medical Assessor has not provided any reasoning for his deduction and his reasoning fails to consider the relevant medical evidence and complaints including pathology as a result of consequential left shoulder injury and overuse due to the appellant having undergone right shoulder replacement surgery;
(g)    the Medical Assessor’s deduction is at odds with the available evidence including the appellant’s evidence regarding his consequential left shoulder injury arising from favouring his uninjured shoulder, that of Dr Millons and the clinical notes produced by the general practitioner (GP), and
(h)    the appellant seeks that the deduction of 100% for 11% WPI rating for the right consequential injury be revoked and the Appeal Panel assess a more realistic deduction of say 10% -20%, rather than 100%.
The respondent’s submissions include the following:
(a) there was no error by the Medical Assessor and the Medical Assessor was entitled to make a 100% deduction if he so considered it was appropriate on the evidence. There has been no application of incorrect criteria in accordance with s 327(3)(c) of the 1998 Act;
(b)    the Medical Assessor had before him the appellant’s historical clinical records and historical radiology reports. An ultrasound scan report of the appellant’s right shoulder confirmed the presence of the pre-existing pathology. The appellant had proceeded to cortisone injections to be right shoulder in June and September 2019;
(c)    the respondent acknowledges that the Medical Assessor does express an opinion that there was no consequential condition to the right shoulder complex. The respondent acknowledges that the expressing of this opinion by the Medical Assessor was outside of his role as the Medical Assessor. That being said, despite expressing this opinion, the Medical Assessor still performed his function and assessed impairment referrable to the right shoulder based on his physical examination findings;
(d)    the Medical Assessor had before him the historical material confirming the presence of pathology in the right shoulder and information relating to the treatment the appellant was undergoing for the pre-existing right shoulder condition. The Medical Assessor had before him sufficient material to determine the extent of the deduction that should be made;
(e)    the Medical Assessor was not in error in making the 100% deduction under s 323 as he considered there was extensive evidence of a pre-existing dysfunction at the right shoulder long before the December 2019 injury;
(f)    in the circumstances, the Medical Assessor has not made his assessment on the basis of incorrect criteria and was not in error in relation to his s 323 deduction. There was sufficient material before the Medical Assessor to arrive at the conclusions that he did in respect of the s 323 deduction;
(g)    there has been no demonstrable error by the Medical Assessor in terms of his reasoning for the s 323 deduction. The material before the Medical Assessor provided the historical clinical records, radiology reports and evidence as to the prior treatment the appellant had submitted to for his right shoulder. There was sufficient material available for the Medical Assessor to assess the extent of the pre-existing impairment of the right shoulder;
(h)    the Medical Assessor has set out in detail his reasoning for the s 323 deduction and concluded that the material before him confirmed extensive evidence of significant injury to the right shoulder occurring before the work-related injury in December 2019. The Medical Assessor noted that from his review there was no history of excessive use of the right shoulder (confirmed by the appellant during the assessment). The Medical Assessor commented that the right shoulder had also become to degenerate;
(i)    the MAC does disclose an adequate path of reasoning for the Medical Assessor’s determination to make a 100% deduction in terms of the right shoulder assessment, and
(j)    having regard to the above, the MAC discloses no application of incorrect criteria or demonstrable error on the part of the Medical Assessor. No error has been demonstrated by the appellant and that the MAC of 6 August 2024 should be confirmed.

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.

Ground 1 – Making a decision relating to liability

The appellant submits that the Medical Assessor stepped outside his role as a Medical Assessor in determining liability and making a 100% deduction pursuant to s 323 of the 1998 Act.
The Appeal Panel reviewed the MAC.
The Medical Assessor under “history relating to the injury” wrote:
“Mr Lagana related that on 17/12/19, he caught one of his feet at his workplace and fell forward, landing predominantly on his left shoulder complex.
He saw his doctor. Radiological investigations were taken, which identified a tear of the left supraspinatus tendon. He was off work for several weeks, then returned to work on light duties. He described that he was using mostly his right arm, since the left arm was still sore at the shoulder. Further treatment included physiotherapy. A cortisone injection was applied, which did not help. Due to the condition of the left shoulder continuing, he was referred to Specialist Orthopaedic Surgeon, Dr Ray Chin.
An MRI scan identified a supraspinatus tear. This was extensive and it was decided that the best approach at that stage was to carry out an arthroscopy with an attempted repair. This was conducted on 22 July 2020. Unfortunately, this attempted repair failed and the left shoulder condition continued. Due to the state of the shoulder complex, it was considered that the only reasonable option was to carry out a shoulder joint replacement. This was conducted on 20/01/21 with a left sided reverse total shoulder replacement, again under the care of Dr Ray Chin. This did give him some improvement, although later he believed that his condition might actually have been worse since the shoulder was still very painful.
He described that his right shoulder was also painful. Cortisone injections had been administered in both June and September of 2019 but did not give him benefit. An ultrasound scan of June 2019 demonstrated, ‘Known supraspinatus tear, new injury three weeks ago. Supraspinatus tear and sub-acromial bursitis’.
Subsequent radiological investigations of the right shoulder have demonstrated the continuing pathological condition where there is also associated extensive degenerative change. It has been recommended that his only reasonable treatment would be a shoulder joint replacement on the right side. So far there are no plans for this.”
Under “Present symptoms” the Medical Assessor wrote:
“He has pain in both shoulders, which is just about equivalent. There is also gross restriction of movement and power, which again is very similar. His sleep is disturbed, since he cannot lie on either side because of the condition of each shoulder”.
Under “Details of any previous or subsequent accidents, injuries or condition” the Medical Assessor wrote:
“Previous injury to his right shoulder has been documented in the file, particularly around mid-year 2019, which is some six months before this injury to his left shoulder. It looks as though some time before that, there had also been a “known tear” to the right supraspinatus tendon. There is no record of any associated surgery.”
Under “Summary” the Medical Assessor wrote:
”There is a claim for a consequential injury to his right shoulder, although there is extensive evidence which indicates that there has been a substantial pre-existing condition of the right shoulder well before this particular injury. The right shoulder has also become degenerate and it has been advised that his only reasonable treatment would be a shoulder joint replacement on that side as well. There have been no associated plans.”
Under “Evaluation of Permanent Impairment” the Medical Assessor answered the following questions:
“e. Is any proportion of loss of efficient use or impairment or whole person
impairment, due to a previous injury, pre-existing condition or abnormality?
Yes.
f. If so, please indicate which body part/system is affected by the previous injury,
pre-existing condition or abnormality.
Right Shoulder. There is extensive evidence of pre-existing dysfunction of both
shoulders with rotator cuff tearing and degenerative change”.
Under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” the Medical Assessor wrote:
“Right Upper Extremity. There is no evidence (at all) that there is a consequential injury of the right shoulder complex. There is no history of excessive use or event with this shoulder (this was confirmed verbally by Mr Lagana at this assessment). He advised that this condition seemed to come on gradually. There is, however extensive evidence of significant pre-existing dysfunction of the right shoulder long before this injury of December 2019. This pre-existing condition has been extensively demonstrated in the ultrasound scan of 12/06/19 where it was described that there was ‘Known supraspinatus tear, new injury three weeks ago’. This resulted in confirmation of the supraspinatus tear and subacromial bursitis. Therefore, there is extensive evidence of significant injury to the right shoulder occurring well before this specific event.”
The Medical Assessor assessed 11% WPI of the right upper extremity and deducted 10/10ths pursuant to s 323 which resulted in an assessment of 0% WPI for the right upper extremity.
In commenting of the other medical opinions, the Medical Assessor wrote:
“My assessment of whole person impairment of the left shoulder is not all that far from that of Specialist Orthopaedic Surgeon, Dr Frank Machart in his report of 14/04/23. I agree with his assessment that the right shoulder is not consequential.
Specialist Orthopaedic Surgeon, Dr David Millons in his report of 28/02/22 assessed whole person impairment of the left shoulder of 23%, which is exactly the same as mine. I am at variance with his assessment of the right shoulder. There is extensive evidence of significant pre-existing dysfunction of the right shoulder before this event.”
The parties agreed, as noted in the consent orders dated 26 March 2024, to refer the matter to a Medical Assessor for assessment of (i) an injury to the left upper extremity/ shoulder on 17 December 2019, (ii) a consequential condition to the right upper extremity/ shoulder, (iii) a consequential condition to the upper digestive system, and (iv) scarring.
The Appeal Panel agrees with the appellant that the Medical Assessor determined an issue of liability, namely, whether there was a consequential condition in the right shoulder. Indeed, the respondent conceded that the Medical Assessor did express the opinion that there was no consequential condition to the right shoulder complex and that in expressing this opinion on liability, he was outside his role as a Medical Assessor.
The Appeal Panel agrees with the appellant that the Medical Assessor made a demonstrable error in determining that there was no consequential condition in the right shoulder.
The Appeal Panel notes that the respondent submitted that there was no error in the Medical Assessor making a deduction of 100% for a pre-existing condition in the right shoulder despite expressing the opinion that there was no consequential condition in the right shoulder as a result of the injury to the left shoulder on 17 December 2019.
The Appeal Panel rejects this submission. The Medical Assessor concluded that there was no consequential condition in the right shoulder and this conclusion was part of his reasoning in the MAC and his decision to make a deduction of 100% for a pre-existing injury and condition.

Ground 2 – Inadequate reasons and failure to consider relevant medical information

The appellant submits:
(a)    that it is incumbent for a Medical Assessor to provide reasons for applying a deduction greater than 10%, and the 100% deduction is disproportionate with all available evidence;
(b)    that the Medical Assessor has not provided any reasoning for his deduction and his reasoning fails to consider the relevant medical evidence and complaints including pathology as a result of consequential right shoulder injury and overuse due to the appellant having undergone left shoulder replacement surgery, and
(c)    that the Medical Assessor’s deduction is at odds with the available evidence including the appellant’s evidence regarding his consequential right shoulder injury arising from favouring his uninjured shoulder, the evidence of Dr Millons and the evidence of his GPs.

The Appeal Panel reviewed the evidence in this matter.
In his statement dated 5 February 2023, the appellant wrote:
“8. I remained off work for a few weeks following the injury, and when I returned to work, I was placed on light duties. When I returned to work, I started to mainly use my right arm and shoulder to perform my duties as I was still experiencing a lot of pain and restriction of movement in my left shoulder.
…
20. Because of the injury to my left shoulder, I have also suffered a consequential injury to my right shoulder due to overuse. I have been having issues with my right shoulder for quite a while. I have been using my right arm a lot more to protect my left shoulder.
21 I have undergone a steroid injection into my right shoulder, although I did not find that this treatment brought about any relief of my pain and symptoms to that shoulder.”
Dr David Millons, consultant surgeon, in a report dated 28 January 2022 noted that the appellant told him that he had been having problems with his right shoulder because he was using that arm more to protect his left shoulder, and this had been present for some time.
Dr Millons expressed the opinion the appellant was using his right arm more to protect his left upper limb and has developed some subacromial impingement issues at the right shoulder. He made a diagnosis of consequential subacromial impingement problems in his right shoulder as a result of using his right arm more to protect his left upper limb. He assessed 11% WPI of the right upper extremity and deducted one tenth pursuant to s 323 which resulted in an assessment of 10% WPI of the right upper extremity.
Dr Frank Machart, consultant orthopaedic surgeon, in a report dated 21 April 2023, noted that the appellant developed pain in the left [sic] shoulder about a year ago. Dr Machart wrote:
“He was not sure exactly when. There was no specific injury. He was then not working. He had not worked since the time of injury. He reported that this was due to excessive use of the right shoulder. I asked Mr Lagana to give me details as to what he was doing that may have been excessive. He said that he was unable to conduct housework. He was not working. He was unable to cut the grass, which was cut by the insurance company. He said he would do occasional gardening with the right arm. The right shoulder was imaged and was diagnosed with rotator cuff disruption. He did not see specialist doctors about it. He had a steroid injection which did not help. There is no plan for surgery.”
Dr Machart made the following diagnosis:
“Mr Lagana sustained a rotator cuff disruption in the left shoulder on 17/12/2019.
Given the description of the pathology, it is likely that there was rotator cuff disease in the past. 2012 GP records indicated rotator cuff injury. It was not clear which shoulder.
…
I did not see evidence of left [sic] shoulder pathology related to the incident on 17/12/2019. ‘Overuse’ is a generic word that attempted to verify in the medicals. I intended to verify details. The details given to me are outlined in the body of the report and did not indicate overuse. He was not working. He was not contributing to housework. He was not cutting grass. The right arm was active [sic] than would have been in the absence of the left shoulder injury. Medical evidence is not in favour of overuse opposite shoulder when subjected to robust clinical studies documented in American Academy of Orthopaedic Surgeon Publication on the subject of causation, 2nd Edition. When considering the subject of overuse, I would have to be satisfied that there was excessive usage of the shoulder beyond what shoulder is capable of to verify situation outside of evidence-based medicine. Normal shoulder should be capable of gym based exercises without suffering overuse as a permanent condition. Mr Lagana's activities were far from it.”
In answer to the question “Whether you consider that the Worker has suffered a consequential condition to the right shoulder ‘resulting from’ the accepted left shoulder? Please provide your reasoning for your response”. Dr Machart responded: “No. I outlined my reasoning under paragraph ‘Opinion’.”
Dr Machart assessed 0% WPI of the right upper extremity/shoulder stating “No injury. 0% WPI as a result of index injury.”
In a report by David Elvish, independent physiotherapy consultant, dated 22 November 2021, Mr Elvish noted that there had been a left shoulder replacement. He wrote: “Right shoulder now causing a lot of pain due to overuse compensation for left shoulder.”
Dr Manohar, treating interventional pain physician, in a report dated 25 January 2022 noted that the appellant had pain in his right shoulder, left shoulder and left knee. He noted that examination of the right shoulder revealed abduction is 90 degrees, flexion is about 90 degrees laterally and rotary movements are restricted.
The clinical notes and records from Myhealth Edensor Park contained the following entries:
(a)    Under Active Past History, “06/2012 Rotator Cuff Injury”.
(b)    In an entry dated 19 June 2012, Dr Luigi Genua noted: “Left shoulder pain since a strain 4 weeks ago. Examination: weak infraspinatus.” Dr Genua referred the appellant for an ultrasound of the left shoulder.
(c)    In an entry dated 27 December 2018, Dr Belel Ejje noted: “right shoulder pain requesting right shoulder x ray … painful arc, pain on examination on external rotation and empty the can test positive, likely supraspinatus pathology.”
(d)    In an entry dated 24 January 2019, Mr Vinay Karamil, physiotherapist, reported: “Pt returned c/o R shoulder pain onset couple months ago whilst at work. Onset of pain due to a sudden movement of the shoulder, pain hasn't settled. Currently reports constant sharp pain in the R anterior shoulder aggravated by lifting and carrying. No neuro signs. Eased by rest”
(e)    In an entry dated 31 January 2019, Mr Karamil noted: “Pt reports improvement with taping. …Currently reports that pain has improved compared to last week.”
(f)    In an entry dated 31 January 2019, Dr Genua made no reference to the right shoulder.
(g)    In an entry dated 7 February 2019, Mr Karamil noted: “Pt reports improvements with taping. Was able to get good sleep over the last week. Currently reports that pain has improved compared to last week.”
(h)    In an entry dated 22 February 2019, Dr Ejje noted “Right shoulder pain …history of psoriatic arthritis…reduced abduction in right shoulder (old) “. He referred the appellant for right shoulder x ray and ultrasound.
(i)    In an entry dated 5 March 2019, Dr Ejje noted: “imaging results explained rotator cuff tear and bursal inflammation.”
(j)    In the entries dated 11 March 2019, 14 March 2019, 18 March 2019,
29 April 2019, no reference was made to the right shoulder.
(k)    In an entry dated 7 May 2019, Dr Ejje noted: “injury at work 3 weeks ago, pulling on something, heard crack in the right shoulder, no direct trauma, known supraspinatus tear in the right shoulder, reduced abduction due to pain, otherwise, good rom, nv intact distally, no bony tenderness”. The appellant was referred for an ultrasound of the right shoulder.
(l)    In an entry dated 13 June 2019, Dr William Nguyen noted: “right shoulder pain – 1 month ago, constant pain with abduction, US torn supraspinatus, discussed management options”. The appellant was referred for a cortisone injection.
(m)     In the entries dated 8 July 2019, 17 July 2019, 22 July 2019, 29 July 2019,
6 August 2019, 19 August 2019, 22 August 2019, no reference was made to the right shoulder.
(n)    On 5 September 2019, Dr Nguyen noted “ongoing right wrist and shoulder pain” and recommended that the appellant see a rheumatologist. The appellant was referred for ultrasound guided cortisone injection.
(o)    In the entries dated 19 September 2019, 23 September 2019,
26 September 2019, 10 October 2019, 4 December 2019 ,12 December 2019 and 16 December no reference was made to the right shoulder.
(p)    The next reference to the right shoulder was on 15 April 2020, when Dr Samihah Chowdhury noted: “Right shoulder also bothering him, wants a cortisone injection, has had injections previously, have helped him. Has never seen a specialist about his right shoulder.”
(q)    In a letter to the case manager, Dale, dated 16 April 2020, Dr Chowdhury noted that the appellant had a pre-existing condition in the right shoulder and right shoulder pain due to a supraspinatus tendon tear.
(r)    In an entry dated 7 May 2020, Dr Chowdhury noted that the appellant had a right shoulder cortisone injection which “didn’t help much.” Further, “Needs to see ortho about right shoulder too. Settle left shoulder first, then deal with right.”
(s)    In an entry dated 8 May 2020, Ms Linda Barca-Morgan noted that the appellant had bilateral shoulder issues and “marked MM atrophy upper traps deltoid and biceps and triceps loss of tone on RT”.
(t)    In an entry dated 11 May 2020, Ms Linda Barca-Morgan noted that the appellant had bilateral shoulder issues and “marked MM atrophy upper traps deltoid and biceps and triceps loss of tone on RT”.
(u)    In an entry dated 22 March 2021 Dr Chowdhury noted that the appellant was still unable to do anything with his left arm.
(v)    In an entry dated 22 April 2021, Dr Chowdhury noted that “right shoulder now bothering him more. Had supraspinatus tendon tear in 2019 in that shoulder, had cortisone injection. Need to repeat scan. May need cortisone again”.
(w)   In an entry dated 19 May 2021 Dr Chowdhury noted “USS right shoulder shows multiple tears and bursitis”.
(x)    In an entry dated 22 September 2021, Dr Chowdhury noted “wants to go ahead with right shoulder cortisone injection as he can’t wait for WC to approve it.”
(y)    In an entry dated 2 August 2023 Dr Chowdhury noted that the appellant needed a new scan of his right shoulder for physio and WC claim.
(z)    In an entry dated 7 August 2023, Dr Chowdhury noted that the scan results showed full thickness tears of all his right shoulder tendons and advised he discuss this with Dr Chin.
(aa)    In an entry dated 21 February 2024, Dr Chowdhury noted that the right shoulder was getting worse.
In a report of an ultrasound of the right shoulder dated 12 June 2019 from Wetherill Park Imaging Centre, Dr Dominic Collis reported “Full-thickness tear supraspinatus tendon tear. Subacromial bursitis. LHB tendon sheath effusion.”
In a report of an ultrasound of the right shoulder dated 31 January 2022, Dr Nazanin Zarerad reported “Bicipital tenosynovitis, subscapularis partial thickness tear, supraspinatus middle fibres partial thickness tear, infraspinatus calcific tendinosis.”
In a report of an X-ray of the right shoulder dated 7 August 2023, Dr Nick Masoudi, radiologist, noted “There is moderate AC joint arthropathy and early degenerative change of the glenohumeral joint. There is a subacromial spur. There is loss of the acromiohumeral space, compatible with chronic rotator cuff tear”.
In a report of an ultrasound of the right shoulder dated 7 August 2023, Dr Nick Masoudi, radiologist, noted:
“There is a largely full thickness (likely complete) tear of the supraspinatus tendon. There is apparent atrophy of the supraspinatus muscle.
There are further full thickness tears of the superior subscapularis and infraspinatus tendons.
There is thinning of the long head of biceps tendon. Sternotomy wires are noted.
Comment:
There is moderate AC joint arthropathy and early degenerative change
of the glenohumeral joint.
There are extensive rotator cuff tendon tears.”
The Appeal Panel notes that the appellant underwent ultrasound guided right shoulder corticosteroid injections in the subacromial subdeltoid bursa by Dr Niranjan Ganeshan on
19 June 2019 and 12 September 2019.
The Appeal Panel accepts that the clinical notes produced by the GP disclose that the appellant has made several complaints of consequential right shoulder worsening after the injury to the left shoulder on 17 December 2019. The appellant in his statement also referred to right shoulder complaints as a result of overusing his right shoulder due to his injured left shoulder.
The appellant underwent rotator cuff repair surgery to the left shoulder on 22 July 2020 which was not successful. The appellant then underwent a left reverse shoulder replacement on
20 January 2021. The Appeal Panel noted that the appellant had his left arm in a sling following those operations for at least a six-week period. The appellant had a poor outcome from the left shoulder replacement surgery and has gross restriction range of movement and pain in the left shoulder.
The appellant submits that the Medical Assessor has not provided any reasoning for his deduction and his reasoning failed to consider the relevant medical evidence and complaints (including pathology) as a result of consequential right shoulder injury and overuse due to the appellant having undergone left shoulder replacement surgery.
The Appeal Panel considers that the Medical Assessor failed to provide adequate reasons for making a 100% deduction pursuant to s 323 and in particular, did not properly consider the relevant medical evidence. The Medical Assessor failed to refer to the clinical notes of the treating GPs, who had not only recorded problems in the right shoulder from
15 April 2020 on, but also reported on the right shoulder complaints and treatment that occurred before the work injury on 17 December 2019. It was necessary in the view of the Appeal Panel, for the Medical Assessor to review this material in order to properly consider what deduction should be made in respect of the pre-existing condition in the right shoulder.
The clinical notes first report a problem in the right shoulder on 27 December 2018 and the appellant was referred for physiotherapy with a good result. It appears from the clinical records that the appellant continued throughout this period to work for the respondent as a labourer and truck driver. On 5 March 2019, Dr Ejje diagnosed a rotator cuff tear and bursal inflammation after looking at imaging results. It is significant that in the entries dated
11 March 2019, 14 March 2019, 18 March 2019 and 29 April 2019, no reference was made to the right shoulder. However, on 7 May 2019, Dr Ejje noted: “injury at work 3 weeks ago, pulling on something, heard crack in the right shoulder, no direct trauma, known supraspinatus tear in the right shoulder, reduced abduction due to pain, otherwise, good rom, nv intact distally, no bony tenderness”. Dr Nguyen, on 13 June 2019, noted: “right shoulder pain – 1 month ago, constant pain with abduction, US torn supraspinatus” and referred the applicant for a cortisone injection.
In the entries dated 8 July 2019, 17 July 2019, 22 July 2019, 29 July 2019, 6 August 2019, 19 August 2019 and 22 August 2019, no reference was made to the right shoulder. The Appeal Panel inferred that the cortisone injection was effective. On 5 September 2019,
Dr Nguyen noted “ongoing right wrist and shoulder pain” and referred the appellant for an ultrasound guided cortisone injection. However, in the entries dated 19 September 2019,
23 September 2019, 26 September 2019, 10 October 2019, 4 December 2019,
12 December 2019 and 16 December no reference was made to the right shoulder.
The Appeal Panel is satisfied that no complaint was made by the appellant to his GP in the period between 6 September 2019 and 15 April 2020. The injury to the left shoulder occurred on 17 December 2019 and the appellant stated that he had remained off work for a few weeks following the injury, and when he returned to work on light duties, he started to mainly use his right arm and shoulder to perform his duties as he was experiencing a lot of pain and restriction of movement in the left shoulder. Dr Millons noted that the appellant appeared to have worked until about July 2020 when he went into hospital for a repair of the left rotator cuff. The first complaint to his GP after the subject injury was on 15 April 2020, that is, after he had returned to work on light duties and was mainly using his right arm and shoulder. The Appeal Panel considers that this was consistent with the appellant having overused his right arm causing an aggravation of the pre-existing condition in the right shoulder.
While the Medical Assessor considered that there was extensive evidence of significant pre-existing dysfunction of the right shoulder before the injury to the left shoulder on
17 December 2019, he did not adequately explain why all of the impairment in the right shoulder assessed in his examination was due to the pre-existing condition, particularly, in circumstances where the appellant had continued to perform heavy physical work until the subject injury to the left shoulder. In view of the evidence referred to above, the Appeal Panel considers that the 100% deduction is disproportionate with the evidence.
The Appeal Panel notes that before the subject injury the appellant had pain with abduction and was diagnosed with a torn supraspinatus tendon and bursitis. However, the ultrasound of the right shoulder on 7 August 2023, revealed further full thickness tears of the superior subscapularis and infraspinatus tendons, that is, a progression in the pathology.
The Appeal Panel is satisfied that as a consequence of overuse following the injury to the left shoulder on 17 December 2019, the appellant sustained an aggravation and acceleration of the pre-existing condition in his right shoulder. The injury to the left shoulder clearly prevented the appellant from using the left arm and he had to rely on using his right arm and shoulder to perform all of the tasks that he had to do.
The Appeal Panel is satisfied that the second ground of appeal is also made out. The Appeal Panel is satisfied that the Medical Assessor failed to provide adequate reasons in considering whether a deduction should be made pursuant to s 323 of the 1998 Act. The failure to provide adequate reasons is a demonstrable error.
Section 323 of the 1998 Act provides:
“(1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section”.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29    ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30     Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31     ...That is a matter of fact to be assessed on the evidence led in each case.”

At [38] of Cole, Schmidt said:
“38. What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365Schmidt J referred to her decision in Cole, stating:
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion: ‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526Campbell J considered the legislative and authoritative history of s 323. He said at [42]:
“In the present context the critical question is the causation question which, expressed by adapting the terms of the statute is whether a portion of the 15 per cent whole person impairment Ms Ryder suffered as a result of her work injury was due to a pre-existing condition or abnormality i.e. degenerative disc disease. The argument advanced on behalf of Ms Ryder is effectively that the proportion must be capable of assessment in accordance with the WorkCover Guides for s 323(1) to be satisfied. With respect this overlooks the requirement that the section must be read as a whole and in its legislative context. ...
43. I acknowledge that the express words of s 323(1) require that some definite part, even if it is difficult or costly to assess in precise terms, of the impairment has been caused by, in this case, a pre-existing condition. But the interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.”
The Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality”.
The Appeal Panel is satisfied that the appellant had a pre-existing condition in the right shoulder, namely, a supraspinatus tear and subacromial bursitis. The Appeal Panel is satisfied that a proportion of the assessment of impairment in the right shoulder is due to the pre-existing condition. The question to be addressed is what proportion of the impairment assessed by the Medical Assessor is due to that pre-existing condition. The Appeal Panel is satisfied that the overuse of the right shoulder as a result of the inability to use his left shoulder significantly contributed to the development of symptoms and the speed of progression of the degenerative change in the right shoulder.
However, taking into account the pathology identified in the right shoulder before the work injury and the treatment that the appellant received before the work injury, the Appeal Panel considers that the pre-existing condition and injury significantly contributed to impairment assessed in the right shoulder. The Appeal Panel, after considering the investigations and clinical notes of the GP, decided that a deduction of one half is appropriate in light of the evidence.
The Medical Assessor assessed 11% WPI of the right upper extremity (shoulder). A one-half deduction is 5.5% which is rounded up to 6% WPI of the right upper extremity. The Medical Assessor assessed 21% of the left upper extremity and 9% of the upper gastrointestinal tract, which combine to total 28% WPI. The Appeal Panel therefore assesses impairment as 28% WPI plus 6%WPI for the right upper extremity which combine to total 32% WPI.
The appellant submits that the Appeal Panel assess a more realistic deduction of say 10% - 20%, rather than 100%. It is the opinion of the Medical Panel that a 10% deduction is at odds with the evidence as the appellant had a significant pre-existing condition in the right shoulder.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 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:	W961/24
Applicant:	Roy Lagana
Respondent:	MCBC Group 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 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 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.Left upper extremity (shoulder)	17/12/19	Chap 2 P10	P476 F16-4P477 F16-43 P479 F 16-46 P506 T 16-27 P439 T16-03	23	1/10^th	21
2.Right upper extremity (shoulder)	17/12/19	Chap 2 P10	P476 F16-4P477 F16-43 P479 F 16-46 P506 T 16-27 P439 T16-03	11	1/2	6 (5.5 rounded up to 6)
3.Upper gastrointes-tinal tract	17/12/19	Chap 16 P78	P121 T6-3	17	1/2	9
4.Scarring.	17/12/19	P74 T14.1	0	0	0
Total % WPI (the Combined Table values of all sub-totals)					32%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2024] NSWPICMP 755

4 November 2024