Macdermott v Holidays Afloat Brooklyn Pty Ltd
[2023] NSWPICMP 615
•28 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Macdermott v Holidays Afloat Brooklyn Pty Ltd [2023] NSWPICMP 615 |
APPELLANT: | Sean Patrick Macdermott |
RESPONDENT: | Holidays Afloat Brooklyn Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 28 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of the appellant’s permanent impairment from injury to right shoulder and consequential conditions to the left shoulder and cervical spine; Medical Assessor (MA) made deduction under section 323(1) of 10% when assessing permanent impairment of the left shoulder and 100% when assessing permanent impairment of the cervical spine; whether in making those deductions MA erred; Held – Appeal Panel found MA erred; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 September 2023 Sean Patrick Macdermott, 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 14 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 (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 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with Holidays Afloat Brooklyn Pty Limited, the respondent, in 2014, working as a deckhand. His employment came to an end on
29 November 2019.On 17 June 2019 he suffered an injury to his right shoulder whilst he was lifting a large hatch on a houseboat. On 23 March 2022 orthopaedic surgeon Dr James Bodel examined the appellant, and in a report dated 22 July 2022 addressed to the appellant’s solicitors, Dr Bodel advised that he assessed the appellant had 27% whole person impairment (WPI) from his injury, comprising 7% WPI relating to the appellant’s right shoulder, 7% WPI relating to the appellant’s cervical spine (including a component for the effect that impairment had on the appellant’s activities of daily living) and 16% WPI relating to the appellant’s left shoulder and left wrist. Dr Bodel advised that the impairment he assessed the appellant had in his cervical spine and left upper extremity was a consequence of the injury the appellant suffered to right shoulder.
In his report of 22 July 2022 Dr Bodel also detailed under the title “Summary” an injury to the appellant’s left thumb. The appellant’s solicitors subsequently drew that to Dr Bodel’s attention and sought “clarification of that injury”. In a subsequent report dated 13 April 2023 Dr Bodel advised “there is no separate rateable pathology in the region of the left thumb and no change in the overall level 27% whole person impairment previously assessed”.
The Appeal Panel notes that the appellant had previously suffered an injury on
5 February 2005 to his lumbar, thoracic and cervical spine when employed by Wyong Golf Club, and had twice earlier claimed compensation from that employer for permanent impairment resulting from that injury. The appellant instituted proceedings in the former Workers’ Compensation Commission seeking determination of those claims. Medical assessments of the degree of the appellant’s permanent impairment resulting from that injury were conducted in those earlier proceedings.The earliest of those assessments was done by Approved Medical Specialist (AMS) Professor Robin Higgs, who in a MAC dated 24 October 2006 assessed the appellant had 13% WPI from his earlier injury, of which 5% WPI related to his cervical spine. AMS Higgs described the appellant’s earlier injury, insofar as it related to his cervical spine, as a “musculo-ligamentous strain” and an “aggravation to pre-existing, and co-existing, age caused degenerative cervical spinal intervertebral disc bulging that has been localised to the C5/6 and to the C6/7 levels”.
The most recent medical assessment of the appellant’s permanent impairment from his injury on 5 February 2005 was done by AMS Dr Roger Pillemer (as he was then called), who issued a medical assessment certificate on 28 October 2011 certifying the appellant had 16% WPI, of which 5% WPI related to the appellant’s cervical spine. AMS Pillemer described the injury that the appellant suffered on 5 February 2005 as being soft tissue injuries to his cervical, thoracic and lumbar spine, with possible internal disruption and/or facet joint damage.
The Appeal Panel notes that in his reports of 22 July 2022 and 14 April 2023 Dr Bodel described the appellant’s prior injury as a “previous back injury”. In earlier reports Dr Bodel authored on 7 July 2021 and 2 September 2021 he noted that the appellant had made a prior workers compensation claim “in regard to the lower back”. He also said in those earlier reports that appellant had a “previous injury to the lower part of the back in 2005”. It would seem then, that when Dr Bodel assessed the appellant’s permanent impairment from his injury on 17 June 2019, he was unaware that the appellant’s earlier injury on
5 February 2005 involved the appellant’s cervical spine.On 7 April 2023 the appellant’s solicitors wrote to the respondent’s insurer notifying it that the appellant claimed compensation against it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 27% WPI. They advised the insurer the appellant relied upon the assessment Dr Bodel made and provided the insurer with a copies of Dr Bodel’s reports dated 22 July 2022 and 13 April 2023.
The respondent’s solicitors then organised for the appellant to be examined by orthopaedic surgeon Dr Chris Harrington on 26 June 2023. In a report dated 3 July 2023 Dr Harrington advised that he assessed the appellant had 5% WPI relating to his right shoulder.
Dr Harrington advised that he did not believe the appellant’s injury to his right shoulder resulted in a consequential condition in the appellant’s neck, left shoulder, left wrist or left thumb.Following that report, the insurer wrote to the appellant on 19 July 2023 notifying him under
s 78 of the 1998 Act that it disputed he was entitled to compensation for permanent impairment for his injury on 17 June 2019. It also advised the appellant of its reasons for that, which were, in substance, that Dr Harrington had assessed he only had 5% WPI relating to his right shoulder, which did not exceed 10% WPI as required by s 66 (1) of the 1987 Act for him to be entitled to compensation for permanent impairment.A medical dispute consequently arose between the parties regarding the degree of the appellant’s permanent impairment from his injury on 17 June 2019. The appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. Upon that occurring, a delegate of the President of the Commission referred that medical dispute between the parties to the Medical Assessor to assess.
MEDICAL ASSESSMENT CERTIFICATE
The issue the appellant has raised in his appeal against the MAC relates to whether the Medical Assessor was correct when assessing his permanent impairment relating to his left shoulder and his cervical spine to make a deduction under s 323(1) of the 1998 Act for a proportion of his permanent impairment that was due to a pre-existing condition or previous injury. Neither party challenged the examination the Medical Assessor conducted of the appellant, the findings the Medical Assessor made from that examination, or the overall permanent impairment the Medical Assessor assessed the appellant to have based on his findings from his examination.
Relevant to the issue that the appellant agitates in his appeal, the Medical Assessor noted the appellant’s earlier injury and that in the earlier proceedings in the Workers Compensation Commission that injury (so far as it related to his cervical spine) correlated with DRE Cervical Category II.
The Medical Assessor also noted that subsequent the appellant had his right shoulder surgically repaired subsequent to injuring it on 17 June 2019 and that after that the appellant developed pain and loss of movement in his left shoulder and left wrist. The Medical Assessor noted that imaging demonstrated impingement in the appellant’s left shoulder and osteoarthritis at the first carpometacarpal joint of the appellant’s left wrist.
The Medical Assessor said that he was not able to review any imaging related to the appellant’s injuries. Bearing in mind what the Medical Assessor recorded about what the imaging demonstrated in the appellant’s left wrist and left shoulder, that reference necessarily must have been to the films of the imaging that appellant had done, rather than the reports on that imaging.
The Medical Assessor assessed the appellant's overall permanent impairment relating to his cervical spine was 6% WPI, and observed that was more than what it had been assessed in the earlier proceedings in the Workers Compensation Commission. The Medical Assessor assessed the appellant's permanent impairment relating to his right upper extremity was 8% WPI. He assessed the appellant’s overall permanent impairment relating to his left upper extremity was also 8% WPI. As said no issue has been taken by either party relating to those assessments.
The Medical Assessor expressed the view that the appellant had pre-existing conditions comprising degenerative disease in the cervical spine, impingement of the left shoulder, and osteoarthritis of the left first CMC joint. The Medical Assessor said that “injuries to the left upper extremity and cervical spine represents aggravation of previous injury or pre-existing degenerative condition”. The Medical Assessor said that the extent of the deduction to be made for the previous injury and pre-existing degenerative condition was “difficult or costly to determine” and he said he said that he applied the provisions of s 323(2) and assessed the deductible portion was one tenth.
The Appeal Panel observes that that is the deduction the Medical Assessor applied with respect to the appellant’s left upper extremity but with respect to his assessment of the appellant’s permanent impairment relating to his cervical spine the Medical Assessor made a deduction of 100% under s 323(1) of the 1998 Act. The Appeal Panel also observes that the Medical Assessor provided no explanation in the MAC for making a deduction of 100%.
The Medical Assessor upon making the deduction he considered ought to be made relating to the appellant’s left upper extremity, assessed the appellant had 7% WPI relating to his left shoulder from his injury on 17 June 2019. The Medical Assessor upon making a deduction of 100% when assessing the appellant’s permanent impairment relating to his cervical spine from his injury, obviously assessed the appellant had 0% WPI with respect to his cervical spine.
The Medical Assessor combined the 8% WPI he assessed the appellant had to his right upper extremity from his injury and the 7% he assessed the appellant had due to the consequential condition in his left upper extremity to achieve the result of 14% WPI, which he certified was the appellant's permanent impairment from his injury.
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 not necessary for the appellant to undergo a further medical examination. This is because, notwithstanding the Appeal Panel found, for reasons explained below, the MAC did contain a demonstrable error, neither party, as has been mentioned, challenged the findings the Medical Assessor made from his examination of the appellant or the overall permanent impairment the Medical Assessor assessed the appellant to have based on those findings. Consequently, the Appeal Panel could correct the error it found based on the material before it.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that there was no evidence before the Medical Assessor that he had a pre-existing condition in his left shoulder. The appellant highlighted that he had made no complaint of left shoulder symptoms prior to his injury. The appellant submitted that the pathology revealed by the ultrasound on his left shoulder could be explained by his overusing his left arm following the injury to his right shoulder. He submitted that investigation did not demonstrate pre-existing pathology.
The appellant submitted that the Medical Assessor was wrong to find that a proportion of his permanent impairment relating to his left shoulder was due to a pre-existing condition.
The appellant also submitted that there was no evidence of pre-existing degeneration in his cervical spine. The appellant submitted that the arduous work he had been undertaking before suffering injury on 17 June 2019 indicated at that time he had no impairment of function of his cervical spine. The appellant submitted that he only started to have a problem with his cervical spine after suffering the injury to his right shoulder. The appellant submitted that the Medical Assessor was wrong to make a deduction of 100% under s 323(1) of the 1998 Act when assessing his permanent impairment off his cervical spine.
In reply, the respondent submitted that the Medical Assessor considered all the available evidence and based his assessment on the history he obtained and his clinical examination. The respondent submitted that the deduction the Medical Assessor made under s 323(1) relating to the appellant's impairment of his left shoulder was consistent with the available evidence. The respondent submitted that it did not matter that Dr Bodel did not make a deduction when assessing the appellant's permanent impairment from his injury.
The respondent also submitted that the deduction the Medical Assessor made under
s 323(1) when assessing the appellant's permanent impairment relating to the cervical spine was consistent with the available evidence and consistent with the assessment that was made in the earlier proceedings in the Workers Compensation Commission.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Appeal Panel notes that there is no record within the material before it of the appellant having complained of any left shoulder symptoms prior to his suffering an injury to his right shoulder on 17 June 2019. The Appeal Panel also notes from that material that the only evidence of any investigation done on the appellant’s left shoulder is an ultrasound done on 12 August 2021, being more than two years after the appellant suffered injury to his right shoulder. The Appeal Panel notes that the evidence is that after the appellant suffered injury to his right shoulder he used his left shoulder more extensively.
Radiologist Dr N Masoudi reported the following on the investigation that was done on the appellant’s left shoulder:
“There is a 6mm partial thickness tear of the anterior supraspinatus
tendon.
The subscapularis and infraspinatus tendons are intact.
The long head of biceps tendon is intact.
There are features of subacromial bursa with pain at 90 degrees of
abduction.
There is no glenohumeral joint effusion.
COMMENT:
There is partial thickness tear of the supraspinatus tendon and
features of subacromial bursitis.”
It is the Appeal Panel’s view that it cannot be inferred from the report on that investigation that as at the time the appellant suffered an injury to his right shoulder on 17 June 2019 he had any pre-existing condition in his left shoulder. That inference is supported by there being no evidence of the appellant experiencing any symptoms in his left shoulder prior to the time he suffered the injury to his right shoulder. The Appeal Panel consequently considers the Medical Assessor was wrong to conclude that the appellant had a pre-existing condition in his left shoulder. It follows that the Medical Assessor was wrong to make a deduction under
s 323(1) of the 1998 Act.The MAC therefore contains a demonstrable error. The correction of that error is done by not making the deduction the Medical Assessor did under s 323(1) to the 8% WPI the Medical Assessor assessed the appellant had from his injury.
With respect to the assessment of the appellant's permanent impairment relating to his cervical spine, it is the case that the appellant suffered an injury to his cervical spine on
5 February 2005. The appellant's permanent impairment from that injury was most recently assessed by AMS Dr Pillemer on 28 October 2011 as 5% WPI. Dr Pillemer considered the injury the appellant suffered was a soft tissue injury.Some five years earlier on 24 October 2006 AMS Professor Robin Higgs also assessed the appellant's permanent impairment from that same injury to the appellant’s cervical spine was 5%.
AMS Higgs was the view that the appellant’s earlier injury to his cervical spine was musculo-ligamentous strain and an aggravation of a pre-existing and co-existing cervical degeneration.
The Appeal Panel observes that there is no evidence of any radiological investigation having been done on the appellant’s cervical spine at any time.
The Appeal Panel also observes that the appellant’s injury on 5 February 2005 occurred due to his being trapped beneath a ride on mower.
It seems to the Appeal Panel, noting the circumstances in which the appellant suffered injury in 2005 and the persistence of a permanent impairment from that injury at least until 2011, that it is likely that the injury the appellant suffered to his cervical spine in 2005 either initiated or progressed existing degeneration in his cervical spine.
The evidence is basically silent regarding the extent to which the appellant was restricted in his function or suffered symptoms from his injury to his cervical spine after 2011. The Appeal Panel notes however, that the appellant was employed by the respondent in an arduous job for a period of approximately five years before suffering injury on 17 June 2019, which indicates that his previous injury in all likelihood was only having limited effect upon his function during that time.
The Appeal Panel is satisfied that the appellant’s previous injury and the consequent degeneration from that, contributes to the permanent impairment from the injury he suffered on 17 June 2019. This is because without the pre-existing degeneration in his cervical spine, it is unlikely that his injury to his right shoulder on 17 June 2019 would have precipitated pain and symptoms in his cervical spine. Consequently, the previous injury makes a difference, and the Medical Assessor was correct to make a deduction under s 323(1) of the 1998 Act to the extent it did.
The evidence however does not enable an easy determination of the extent to which the appellant’s previous injury contributes to his present impairment relating to his cervical spine. It would be too difficult to determine that precisely. Accordingly, in accordance with s 323(2) of the 1998 Act, the Medical Assessor ought to have assumed that the deduction for the purpose of s 323(1) was 10%. That assumption is not at odds with the little evidence there is before the Appeal Panel regarding the degeneration that exists in the appellant’s cervical spine. By not making that assumption, the Medical Assessor erred, and the MAC contains a further demonstrable error due to that.
The Appeal Panel corrects that error by making a deduction of one tenth, in accordance with the assumption required under s 323(2) of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4614/23 |
Applicant: | Sean Patrick Macdermott |
Respondent: | Holidays Afloat Brooklyn Pty Limited |
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 Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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) |
| Right upper extremity | 17/06/2019 | Chapter 2 | Fig 16-40 Fig 16-43 Fig 16-46 | 8% | - | 8% |
| Left upper extremity | Chapter 2 | Fig 16-40 Fig 16-43 Fig 16-46 Fig 16-28 Fig 16-31 T 16-03 | 8% | - | 8% | |
| Cervical spine | Chapter 4 | T15-03 | 6% | 1/10 | 5% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
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