Marsh v Newcastle Stevedores Pty Ltd
[2022] NSWPICMP 1
•10 January 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Marsh v Newcastle Stevedores Pty Ltd [2022] NSWPICMP 1 |
| APPELLANT: | Robert William Marsh |
| RESPONDENT: | Newcastle Stevedores Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Dr David Crocker Dr Brian Noll |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deductions of 100% for whole person impairment (WPI) to the right shoulder for the presence of osteoarthritic degenerative changes, and 40% WPI to the left shoulder for further impairment caused by a subsequent injury; Held - the pre-existing condition in the right shoulder was asymptomatic when the appellant injured it by falling through a hatchway on a ship in 2010, and a review of the evidence demonstrated that the aggravation thereby suffered was transient; the right shoulder (which came to replacement surgery in 2018) subsequently became symptomatic some five years later; thus the injury in 2010 caused a temporary aggravation of the right shoulder, which resolved, and accordingly did not result in any WPI; the Medical Assessor (MA) erred in applying the provisions of section 323 of 1998 Act; Cole v Wenaline applied, but assessment confirmed; the review of the evidence demonstrated that a subsequent motor vehicle accident aggravated the condition of the left shoulder, which had been injured in the 2010 subject injury; Johnson and Oakley considered; the MA erred in applying the provisions of section 323 of the 1998 Act to a subsequent impairment; 2nd category of Johnson and Oakley applicable; Medical Assessment Certificate revoked and full amount assessed for the left shoulder (which had also had replacement surgery in 2017) applied. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2020 Robert William Marsh, 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 (MA), who issued a Medical Assessment Certificate (MAC) on 17 June 2021.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 4 September 2020 this matter was referred to the MA for assessment of WPI caused to injury of the left lower extremity (knee), right upper extremity (shoulder) and left upper extremity (shoulder) caused by injury on 12 September 2010.
The referral followed Consent Orders made on 17 August 2020.
The appellant was employed as a stevedore when he fell through a hatch on the deck of a ship on 12 September 2010. He arrested his fall with his arms, and his left knee hit a steel bar underneath the hatchway. He was managed conservatively until he came to an arthroscopy on his left knee in March 2015. This procedure improved the use of his knee, but it did not return to normal.
Mr Marsh was the victim of a road rage incident on 8 August 2012, where he was a passenger and suffered further injury. We shall refer to this event as the “road rage” incident. Mr Marsh eventually came to shoulder joint replacement surgery, the left in 2017, and the right in 2018.
The MA assessed 1% WPI for the left lower extremity, and 22% WPI for each upper extremity. Pursuant to s 323 of the 1998 Act, the MA deducted 10/10ths for the right upper extremity, and 7/10ths for the left upper extremity, leaving a combined total of 8% WPI.
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 WorkCover Medical Assessment Guidelines 2006.
The appellant sought to be re-examined by a MA who is a member of the Appeal Panel. The issues raised in the appeal, being concerned with the deductions, may be assessed on the evidence that was before the MA. A re-examination would not assist in deciding the issues that have been raised and the application is refused.
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 which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant took the unusual step of relying on observations made by Principal Member John Harris on 8 June 2021 during the application made by the appellant for a reconsideration the Certificate of Determination (COD). The COD followed the issue of the present MAC as part of the appellant’s successful application for an extension of time to lodge this appeal. The basis of the appeal was a challenge to the manner in which the MA applied the provisions of s 323.
The MAC
The MA listed the following table of investigations before him:
| DATE | INVESTIGATION | RESULTS |
| 26/11/10 | MRI scan left knee | No meniscal pathology. Chondromalacia. |
| 31/01/11 | Ultrasound scan left shoulder | Tendinopathy of the supraspinatus and subscapularis. Extensive degenerative changes in the gleno-humeral joint. Labral tears. |
| 17/03/11 | MRI scan left shoulder | |
| 04/07/16 | Plain x-ray shoulders | Extensive degenerative changes in the gleno humeral joints on each side. |
| 02/08/16 | MRI scan left shoulder | Severe degenerative changes in the gleno-humeral joint with bone on bone. |
| 16/03/17 | Plain x-ray left shoulder | |
| 29/03/17 | CT scan left shoulder | |
| 22/05/17 | Plain x-ray left shoulder | Satisfactory shoulder joint replacement. |
| 22/08/17 | MRI scan right shoulder | Extensive degenerative changes in the gleno humeral joint. Tendinopathy and intrasubstance tears. |
| 13/12/18 | Plain x-ray right shoulder | Satisfactory shoulder joint replacement. |
| 18/03/19 | Plain x-ray shoulders | Shoulder joint replacements on each side in satisfactory positioning. |
In answering the templated questions regarding the evaluation of WPI at [8], the MA indicated that the “extensive degenerative changes of both shoulders” had affected the assessment of the whole person impairment. The MA also advised that the subsequent road rage event in August 2012 was a subsequent injury that had caused additional impairment.[1]
[1] Appeal papers page 40.
In his summary the MA said[2] :
“The situation is quite extensively complicated by two other major issues. The radiological investigations demonstrate extensive degenerative changes in both shoulders, mostly in the gleno-humeral joints. This has been described in some quarters to be the major precipitating factor of his bilateral shoulder joint dysfunction.
The other issue of concern was the road rage event which occurred on 08/08/12. There is a dramatic history of another vehicle intentionally ramming Mr Marsh’s vehicle where he was a front seat passenger wearing a seat belt. The accounts of impact identified that this occurred on each side and also in the rear. Following this event, even by Mr Marsh’s own accounts, there was severe deterioration of his condition. This event is also seen in some clinical quarters to be a greater precipitating influence to his left shoulder condition than the fall down the hatchway.
There is very little detail about the condition of his right shoulder until several years after this event with the hatchway. It is therefore most likely that the condition of the right shoulder is due to pre-existing degenerative changes.”
[2] Appeal papers page 39.
With regard to the opinion of other experts, the MA only considered the “very detailed and excellently structured” report of Dr Dan Posel, Specialist Orthopaedic Surgeon dated 25 May 2020.[3] Dr Posel had been retained on behalf of the insurer.[4] The MA said:
“…. Each anatomical part is very carefully analysed, together with the precipitating features causing current dysfunction. Specifically, with the shoulders, attention is drawn to the extensive pre-existing degenerative changes. Also with the right shoulder, the lack of evidence of significant dysfunction for several years after this injury. With the left shoulder, attention is specifically drawn to the road rage event of August 2012….”
[3] Appeal papers page 41.
[4] Appeal papers page 303.
He said[5]:
“ …. In general, I am in close agreement with Dr Posel’s analysis.
[5] Appeal papers page 41.
In considering the application of s 323, the MA said at [11]:[6]
“As advised, there have been extensive degenerative changes of both shoulders which pre dated the fall down the hatchway. There has also been extensive dysfunction of the left shoulder due to the road rage event. With the right shoulder, the only feature which appears to be significantly contributing to the current condition is the extensive pre-existing degenerative changes. There is no convincing evidence of significant dysfunction associated with either the fall through the hatchway or the road rage incident of August 2012.
…... With the left shoulder, 3/10ths is attributed to the fall down the hatchway, 3/10ths is attributed to pre-existing degenerative conditions and 4/10ths is attributed to the road rage event of August 2012.
With the right shoulder, there does not appear to be any component of injury from either the fall down the hatchway or from the road rage incident. All of this condition is therefore attributed to pre-existing degenerative changes.”
SUBMISSIONS
The appellant
[6] Appeal papers 41 – 42.
As indicated, the appellant relied on the observations made by Principal Member Harris on 8 June 2021.
It was firstly submitted that the MA had fallen into error when he included the 2012 road rage incident in his s 323 deduction. However, the appellant submitted further that there were no adequate reasons given by the MA for the apportionment of 4/10ths impairment, in any event.
With regard to the deduction of 10/10ths in relation to the right shoulder, the appellant submitted that there were a number of issues:
· Injury to the right shoulder had been admitted, and was established by a contemporaneous entry in the clinical notes and other evidence.
· It was for the respondent to establish the existence of any pre-existing condition, and the contribution of that condition to the impairment. The MA did not discuss how the pre-existing condition contributed to impairment.
· There was no discussion regarding the 2017 MRI scan of the right shoulder, nor any medical analysis, as to how it revealed a condition that pre-existed the 2010 injury.
· If the first complaint recorded regarding the right shoulder was that recorded by Dr Kleinman in either 2014 or in 2017 resulting in the MRI scan, the finding by the MA that the entirety of the impairment was due to a pre-existing condition had not been explained.
· The MA had given no adequate reasons as to how the unknown pre-existing right shoulder condition entirely contributed to the impairment.
The respondent
The respondent firstly reviewed the decision to extend the time to appeal. The submissions were addressed to the delegate of the President. Leave was given and we put that issue to one side.
It was submitted that the appellant’s submissions relied wholly on the observations made by the Principal Member - particularly that there were no adequate reasons given to explain how the pre-existing right shoulder condition entirely contributed to the current whole person impairment.
The respondent contended that consideration of the MAC showed that the appellant’s history had been particularly complicated. It was argued that the imaging showed there had been extensive degenerative changes seen in both shoulders, and that they were a precipitating factor in the appellant’s dysfunction. We were referred to the remarks by the MA which we have reproduced above. The respondent argued that, as the MA had used an assumption that Mr Marsh did not report significant dysfunction in the right shoulder prior to the injurious event (because there was little documentation about the right shoulder), this could be used as a “yardstick” to conclude that the “injurious event” aggravated that underlying condition.
This submission may be dealt with shortly. We had some difficulty in grasping the meaning of the respondent’s submission that because there was no documentation with respect to the right shoulder that predated the injurious event, and because Mr Marsh did not report significant dysfunction, it could therefore be inferred that the injurious event aggravated that underlying condition. In fact there was no report of any dysfunction in the right shoulder prior to the fall down the hatch on 12 September 2010. The reference by the MA to a “yardstick” was in the context of Mr Marsh’s knees, and it would appear that the respondent conflated that analogy with the injury to the right shoulder. We do not accept the respondent’s proposition that because there was no evidence of a pre-existing condition, we could infer that the injury aggravated it.
With regard to the submission that the employer had accepted that the right shoulder had been injured in the subject incident, the respondent argued that indeed the MA had accepted that such an injury had occurred, but that he had found that no whole person impairment had been caused by it, as it wholly related to the pre-existing degenerative changes. This, it was argued, had regard to the lack of reporting of symptoms for a number of years which included the intervening motor vehicle accident of 2012.
We were then referred to Secretary, New South Wales Department of Education v Johnson[7] and a case discussed therein, State Government Insurance Commission v Oakley.[8] The respondent submitted that the road rage incident in 2012 would “likely give rise to a consideration of the apportionment of the injuries pleaded by the applicant”. It was argued that we would be required to consider whether the initial work injury contributed to the injuries arising out of the motor vehicle accident, or whether those injuries were causally unrelated to the work injury.
[7] [2019] NSW CA 321 (Johnson).
[8] (1990) 10 MVR 570 (Oakley).
DISCUSSION
There are three issues that fall for determination in this appeal. The first relates to the claim for injury to the left shoulder and the deduction made by the MA of 40% (we prefer to discuss the proportions in percentage terms) for the additional impairment caused by the unrelated road rage incident of 8 August 2012.
The second issue concerns the deduction made pursuant to s 323 of the 1998 Act of 30% in respect of the left shoulder, for the contribution made to the assessed impairment by the pre-existing degenerative changes.
The third matter relates to the s 323 deduction in respect of the right shoulder of 100% for the contribution made to the assessed impairment by the pre-existing degenerative changes.
The left shoulder: subsequent impairment
The MA deducted 40% from the assessed impairment as he found that the road rage incident of 8 August 2012 had caused a “severe deterioration” which was seen to be “a greater precipitating influence” than the subject injury on 12 September 2010. Although the MA erred by including that deduction as one that was permissible pursuant to s 323, seen, it would seem that he was relying on the terms of the templated question [8g] within the MAC.
That templated question provides:
“g. Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.”
It can be seen that the question presumes that every subsequent impairment caused by further injury should be excluded from the WPI assessment, and this assumption is no longer correct in the light of the clarification of the relevant legal principles by the Court of Appeal in Johnson.
In Johnson Simpson AJA set out the competing views available in the case of a further injury following a compensable injury. At paragraph 126 Her Honour said:
“126. In support of the second proposed ground the appellant invoked, and placed heavy reliance on, the decision of Malcolm CJ in State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003. In that case, the Chief Justice identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury (or, perhaps more accurately, the assessment of damages consequential upon an earlier injury). The observations were made in the context of proceedings at common law in which negligence is alleged, but are equally applicable to the assessment of the degree of permanent impairment resulting from injury under no-fault legislation such as the WC Act. His Honour identified the three categories as:
‘(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first.’
……
130. In my opinion there is considerable substance in the appellant’s reliance on the three categories stated by Malcolm CJ in Oakley. Those categories have been adopted by this Court in Jefferies v Roads and Traffic Authority of NSW [1997] NSWCA 167 (NSW Court of Appeal, 28 November 1997, unrep);Caltex Tanker Co (Aust) Pty Ltd v Robert Kerr [1999] NSWCA 115; Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396; [1999] Aust Torts Reports 81-531.….”
Her Honour stated at [135] that the task required of an Appeal Panel was a careful analysis of all of the evidence, and we would agree, with respect, with her observation that the task is of some complexity.
Before turning to the task it is appropriate to consider the legal principles that pertain to the application of s 323 of the 1998 Act, as they too require an analysis of the evidence.
Section 323
Section 323 provides relevantly:
“(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.”
It follows that the MA erred by including the subsequent impairment caused by the road rage incident of 8 August 2012 in the s 323 deduction, as the section only applies to conditions that pre-existed the date of injury, 12 September 2010.
It is trite law that the basis of the s 323 deduction must not be hypothesis or assumption, but have regard to all the evidence as to the actual consequences of the earlier pre-existing condition.[9]
[9] Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [30] per Schmidt J. See also analysis of current law regarding s 323 in Jenkins v Coastwide Steel..[2021] NSWPICMP by Principal Member Harris 39 from [39].
The templated heading at paragraph [10c] of the MAC provides:
“c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:”
As indicated, the MA only mentioned Dr Posel’s report, and did not make any comment about the other medical opinions before him. An MA is not expected to refer to all the evidence before him/her, and in appropriate cases an inference may be drawn that no comment was made because the MA did not consider the material to be relevant. However, where there is more than one conclusion raised by the medical evidence, an MA has an obligation to give reasons, as we noted above when referring to Vegan.
The MA gave no explanation as to why he did not consider the medical opinions and findings that were before him. The period of time between the subject incident and the date the MA made his assessment covered a period of over 10 years, during which time Mr Marsh had seen a number of medical practitioners, some of whom held a different opinion as to causation.
The failure by the MA to consider all the medical evidence and to give adequate reasons why he did not, we find to be a demonstrable error. An analysis of the evidence before the MA thus also becomes necessary with regard to the proper application of the provisions of s 323.
THE EVIDENCE
The medical evidence
Following his fall, Mr Marsh was admitted to Calvary Mater Emergency Department at 12.49 on 12 September 2010. The history recorded was:[10]
“Presenting Problem: Male aged 53 years, 6 months presents with Pain, Injury, Unspecified, pt wheeled into department with L knee pain, states fell between 2 containers on ship last night. Able to weightbear. Pain+++ on palpation. Analgesia taken with good effect.”
[10] Appeal papers page 233.
The handwritten notes indicated that the left leg was x-rayed and no obvious fracture was detected. We note that there was no mention of shoulder symptoms. The diagnosis was of soft tissue injury as the cause of left knee pain.
Mr Marsh saw his GP Dr Attlee Clarke on 20 September 2010.[11] The entry in Dr Clarke’s notes was:
“LEFT FOOT INJURY
Fell down a hatch at work on 12/9/2010 and was treated at MMH and discharged same day with a diagnosis of soft tissue injury. Also hurt both shoulders which currently hurt. Being treated with panadeine forte at present. lnfrapatellar bursa! area of left knee hot and tender. Also shoulders tender with crepitus. Treat with mobic and work cover cert given.. .”[11] Appeal papers page 223.
On 25 October 2010, Dr Clarke referred Mr Marsh to Dr Chris Harrington, Orthopaedic Surgeon. By that time, Dr Clarke recorded only left shoulder problems, and no further mention of the right shoulder was noted. Dr Harrington saw Mr Marsh in November 2010.[12] The presentation to Dr Harrington at that time was a problematic left knee and left shoulder.
[12] Appeal papers page 199.
On 4 November 2010 Mr Marsh underwent with Dr Harrington a left shoulder injection of local anaesthetic and an MRI scan was performed because of continuing symptomatology on 17 March 2011. The MRI confirmed that there was no rotator cuff tear, and that arthritis was present in the shoulder. Dr Harrington thought when he last saw him on 16 January 2012 that there was not much that could be done for an arthritic shoulder.
Dr Stephen Kemp, Hand and Upper Limb Surgeon reported to Dr Clarke on 23 August 2012, and took a consistent history of the subject injury. Mr Marsh complained of injuries to both shoulders and the left knee, with the worst pain on the left-hand side. Dr Kemp diagnosed a work-related aggravation of underlying glenohumeral arthrosis, in relation to the left shoulder. Beyond an allusion to the right shoulder in the expression ‘both shoulders’, Dr Kemp did not mention the right shoulder. We accept that his comments relating to ‘the shoulder’ related to the more serious left shoulder condition.[13]
[13] Appeal papers page 195.
On 13 November 2012 Dr Kemp reported in answer to a query from the insurer that on 27 September 2012, Mr Marsh said that he had neglected to mention the road rage incident. The history taken was as follows:[14]
“….he informed me that he had neglected to mention that he had been involved as a front seat passenger in a motor vehicle accident on 8 August 2012. He alleged that the other vehicle rammed the vehicle in which he was travelling at least six times. On at least two occasions the vehicle ran into the front passenger door. At this stage I very carefully obtained a specific history in relation to Mr Marsh's shoulder symptoms. He assured me that prior to the injury onboard ship in September 2010, he was not aware of significant discomfort in either shoulder. After that injury he was troubled by ongoing discomfort particularly on the left hand side. The discomfort had partly settled but would continue to cause intermittent problems under load with a dull constant ache most of the time up to the motor vehicle accident of August 2012. Since involvement in the
motor vehicle accident, his overall pain experience was at least twice as bad as that to which he had been used. He noticed in particular more clicking and catching with the use of the shoulder than prior to the motor vehicle accident.”[14] Appeal papers page 197.
As to the causal issue, Dr Kemp said: [15]
“I confirmed an x-ray report from October 2010 which identified severe established glenohumeral arthrosis. It was clear then that the initial injury onboard ship resulted in a post traumatic flare of glenohumeral arthrosis which had been ongoing but which over a period of time slowly mediated to a level that Mr Marsh could work around.' The recent motor vehicle accident had dramatically further exacerbated the problem. It was my impression that whilst there was a mild ongoing aggravation of Mr Marsh's shoulder condition from the injury onboard ship, the more recent aggravation from the motor vehicle accident was predominant.”
[15] Ibid.
The appellant was seen by Associate Professor Leon Kleinman, qualified by the appellant, on 16 March 2012. He did not take a history of any complaint regarding the right shoulder, apart from noting that Mr Marsh struck ‘both shoulders’ in the initial fall. He examined only the left shoulder and the left lower extremity. In his later report of 1 May 2012 A/Prof Kleinman considered the MRI scan of 17 March 2011, and said:[16]
[16] Appeal papers page 188.
“An MRI scan of his left shoulder was performed on 17/03/2011. This shows that he has glenohumeral osteoarthritis in his left shoulder. He has an intrasubstance tear of the supraspinatus tendon and subdeltoid bursa! effusion. He possibly has some loose bodies in his left shoulder joint.
I have reviewed the copy of the report, dated i 7/03/2011, of Dr Stuart Slater, Radiologist, on the MRI scan of his left shoulder which you have provided and I note his comment that the scan shows:-
• "Severe glenohumeral osteoarthritis with degenerative tear of the posterior labrum and to a lesser
extent anterior and superior labrum.
• Supraspinatus, infraspinatus and long head of biceps tendons appear intact.
• Small partial tear of the subscapularis tendon measuring approximately 8mm ".I agree with this report.”
(As written).
On 26 February 2015 Dr Clarke referred Mr Marsh for an ultrasound of the right shoulder and ultrasound guided right shoulder injection. The clinical history was given of “right shoulder bursitis.” The report noted AC joint deterioration, and the comment was:[17]
“Supraspinatus, infraspinatus and subscapularis tendinopathy with associated [obscured – small?] partial thickness tear in the subscapularis and supraspinatus tendons as described. No full-thickness tear is seen. Subacromial/subdeltoid bursitis..”
[17] Appeal papers page 231.
A/Prof Kleinman next reported on 19 February 2016.[18] He referred to an earlier report of 2 April 2014, but it was not before us. He did not take any history of the road rage incident of 8 August 2012. He said that in his 2014 report the appellant continued to complain of left shoulder pain. Mr Marsh was due to have surgery in June 2016.
A/Prof Kleinman said:“Initially he injured both his shoulders in the fall but he was more concerned about his left shoulder but about two years ago he developed a severe increase of the pain in his shoulders. He feels that his right shoulder is now as bad as his left shoulder”.
[18] Appeal papers page 201.
With regard to the right shoulder, A/Prof Kleinman said:[19]
“Some of his right shoulder condition is attributable to the incident at work in September 2010 because since this incident he has had ongoing pain in his right shoulder but he has not paid much attention to his right shoulder because of the severity of his left shoulder conditions.
His right shoulder needs to be further investigated radiologically. It is foreseeable that he will come to surgery of his right shoulder.”
[19] Appeal papers page 208.
On 4 July 2016 an X-ray of Mr Marsh’s right shoulder was carried out at the request of
Dr Benjamin East, whom we presume was from the same practice as Dr Clarke, as it appeared within his clinical notes.[20] X-rays were also taken of the left shoulder, and in respect of both shoulders, the radiologist simply reported:“There are degenerative changes seen in the glenohumeral joint.”
[20] Appeal papers page 127.
On 9 January 2020 Dr James Bodel, Orthopaedic Surgeon, issued a medico-legal report.
Dr Bodel advised that he had previously reported on 29 September 2015, but that report had not been lodged. Dr Bodel took a consistent history of the injury, noting that Mr Marsh had injured both shoulders in the subject incident. He also noted:[21]“Unfortunately this gentleman had a further injury since I saw him last on 08 August 2012. He was involved in a motor vehicle accident. He has had a minor further aggravation of the left shoulder and the left knee but the main area of injury in the motor vehicle accident was the neck….
……
Eighteen months ago he also was involved in a motor vehicle accident and injured his neck but did not injure the other areas of any great significance at that time.”
[21] Appeal papers page 214.
We assume that when he reported on 29 September 2015, Dr Bodel did not take any history of the road rage incident of 8 August 2012. It is also relevant that Dr Bodel’s assertion that the road rage incident occurred since Dr Bodel last saw Mr Marsh, which we assume to be 29 September 2015, appears to be incorrect.
Dr Daniel Posel, Orthopaedic Surgeon, reported to the respondent’s solicitors on 25 May 2020.[22] He took a consistent history of the hatchway fall. He then recorded:
[22] Appeal papers page 303.
“SUBSEQUENT INJURIES
In 2012 Robert Marsh was involved in a motor vehicle accident. He was a front seat passenger in a 4WD ute which was turning left. He explained that this vehicle was
involved in a road rage incident.
Robert Marsh explained that a car came up beside their vehicle, initially on the driver’s side and scraped the driver’s side of the ute.
The ute then turned left and was hit by the car once again, now on the passenger side and then again on the driver’s side.
The vehicle then hit the ute from behind.
The “offending” car attempted to ram the ute into a pole.
The ute rolled onto its side and then back onto its wheels.The ute was a write off in this accident. Robert Marsh explained that most of his discomfort was felt in his neck. An injury to his left shoulder was also documented by
his general practitioner, Dr A. Clarke.
Dr Stephen Kemp, orthopaedic surgeon, in his letter of 27 September 2012 stated that (the left shoulder pain) “remains much more significant than prior to the motor
vehicle accident”.
He also stated: “the recent motor vehicle accident has dramatically further exacerbated the problem” (the left shoulder).”
Dr Posel’s diagnosis was:[23]
“1. Underlying constitutional osteoarthritis of the left shoulder for which a total shoulder replacement has been performed with a minor aggravation of this underlying left shoulder degenerative change with a fall through the hatch on the 12 September 2010 and a more significant aggravation of such with a motor vehicle accident in 2012 for which a Third Party claim is ongoing.”
[23] Appeal papers page 313.
He said:
“2. Presumed similar underlying constitutional right shoulder glenohumeral joint osteoarthritis for which a similar total shoulder replacement has been performed with a possible minor aggravation in the fall through the hatch on 12 September 2010 which did not require radiological investigation nor treatment over the ensuing four and a half years.”
With regard to the ultrasound, which we presume Dr Posel was referring to, Dr Posel said:[24]
“Ultrasound right shoulder, 26 February 2015 - significantly reduced external rotation, mild bicipital tendonitis, small partial tear of supraspinatus and AC joint degenerative change. (The Radiologist attributed the reduced external rotation to early adhesive capsulitis (frozen shoulder) but no right shoulder x-ray was performed, presumably such would have identified glenohumeral joint degenerative change as the cause of the joint stiffness.)”
[24] Appeal Papers page 310.
Dr Posel was of the opinion that the left shoulder had suffered a mild aggravation in the subject injury, and a more severe aggravation in the road rage incident. As to the right shoulder, Dr Posel said:[25]
“Robert Marsh may have suffered a mild aggravation of his presumed underlying constitutional glenohumeral joint osteoarthritis with the injury on 12 September 2010, however apart from the initial mention by his general practitioner at the first consultation following this fall, on 21 September 2010 at eight days post injury, I find no subsequent mention of the right shoulder until 2015 and no radiological investigations appear to have been performed on this right shoulder from the time of the injury until an ultrasound examination in 2015.
…
If this hatch fall did aggravate the right shoulder, this aggravation was very short lived and did not result in any further investigation until 2015.”
Appellant’s evidence
[25] Ibid.
Mr Marsh gave three statements dated 3 November 2010,[26] 8 September 2015[27] and 30 June 2020. [28]
[26] Appeal papers page 76.
[27] Appeal papers page 101.
[28] Appeal papers page 106.
The first statement took the form of a record of interview. From page 76 the following questions and answers were recorded:
“Q.67: The injury for which compensation is sought is described as a soft tissue injury ..
MARSH:Yeah.
Q 68:.. to the left knee and left and right shoulders. Is that true?
MARSH:Um soft tissue, yes, to my knee um and initially I guess that's what they thought with my shoulder. Um tomorrow I've got to go and get a steroid put in my shoulder, needle here.
Q69. For the purpose of the electronic recording, you're gesturing towards your left shoulder.
MARSH: Yeah. Now, I hurt both of them but there's .. and at the time I didn't care about the shoulders because the pain was in the knee um and I didn't realise how bad this left shoulder was.
…..
Q71.You’re speaking of the left shoulder. Is that right shoulder also an issue?
MARSH:No. Right shoulder’s okay.
Q72.Okay. So the injury for which compensation is sought is the left knee and the left shoulder arising from an event the 12 September 2010. Is that true?
MARSH:Yeah.
….
Q 198Have you now recovered from the right shoulder discomfort?
MARSH:I think my right shoulder’s fine.”
Although Mr Marsh stated on 8 September 2015 that he had a steroid injection in his right shoulder under Dr Harrington,[29] it is apparent that the treatment was afforded to the left shoulder[30].
[29] Appeal papers page 102
[30] Appeal papers pages 199 and 123.
At paragraph 6 of that statement Mr Marsh advised of the road rage incident of 8 August 2012, saying that he suffered “a temporary aggravation of the pre-existing condition” to his left shoulder, which settled back down to his previous condition.
Mr Marsh said at paragraph 10 that the injuries he suffered in that event were to his neck when his head hit the roof, and to his back and left hip when the car was rammed. He said:
“… I also injured both shoulders and in particular my left shoulder. I had pre—existing problems in that shoulder….”
Mr Marsh made no mention of his right shoulder in his statement of 30 June 2020.
ANALYSIS
The right shoulder
The only contemporaneous record of any complaint involving the right shoulder was that recorded by Dr Clarke on 20 September 2010, who noted that “both shoulders hurt”.
There was no further mention of a right shoulder condition in Dr Clarke’s notes, until a copy of an ultrasound and an ultrasound guided injection was included, showing that these procedures were undertaken on 26 February 2015.
In the meantime, Mr Marsh had been under the management of Dr Harrington from 4 October 2010 until 2012, when it appears that his treatment was taken over by Dr Kemp. Both Dr Kemp and Dr Harrington were concerned with treatment for the left shoulder, and the right shoulder was neither examined, nor mentioned, although Dr Kemp recorded a complaint of ongoing pain in “both shoulders” in his report of 23 August 2012.
No investigations were conducted on the right shoulder until 26 February 2015, a fact that was overlooked by the MA, who assumed the first investigation of the right shoulder did not occur until 4 July 2016.
Associate Professor Kleinman noted on 19 February 2016 that Mr Marsh’s right shoulder had become worse than the left two months earlier. He recorded a history that there had been no investigation of the right shoulder, notwithstanding that Mr Marsh had been experiencing ongoing pain, and therefore some of his right shoulder condition was attributable. As indicated, A/Prof Kleinman did not take any history of the road rage incident of 8 August 2012. He was also unaware of the investigations of 26 February 2015.
Associate Professor Kleinman’s earlier reports of 16 March 2012 and 1 May 2012 made no mention of the right shoulder, and his report on 19 February 2016 of the recent increase in symptomatology suggests a more recent onset of symptoms than the history he took of ongoing pain since the subject incident. The ultrasound of 26 February 2015 also tends to confirm that impression, notwithstanding that A/Prof Kleinman was unaware of it.
In Mr Marsh’s own contemporaneous statement of 3 November 2010, the right shoulder was “okay” and “fine”. No further complaints were recorded about the right shoulder following the initial complaint to Dr Clarke on 20 September 2010, one week after the subject incident.
Dr Bodel’s opinion was of little probative value. It was given almost 10 years after the subject incident and the earlier report he referred to of 29 September 2015 was not before us. As indicated, Dr Bodel did not take a full history, and in any event did no more than note that
Mr Marsh injured both shoulders in the injurious event. His diagnosis of rotator cuff pathology in both shoulders was undoubtedly correct, but he made no useful comment as to causation.[31][31] Appeal papers page 217.
Dr Posel’s opinion we find to be of some assistance. His advice that the subject incident possibly caused a minor aggravation to a presumed underlying constitutional right shoulder glenohumaeral joint osteoarthritis is consistent with the evidence. His observation that the shoulder did not require radiological investigation nor treatment for the ensuing four and a half years we take to be a reference to the ultrasound of 26 February 2015, and we endorse his opinion that an x-ray would probably have identified glenohumeral joint degenerative change.[32] However, we concur with Dr Posel’s opinion that the aggravation caused by the subject incident was short lived.
The left shoulder
The road rage incident
[32] Appeal papers page 310.
We note the different emphases placed on this event.
Dr Kemp was told in 2012 by Mr Marsh that his neck and left shoulder were injured, and that the left shoulder was ‘twice as bad’ as it had been prior.
Dr Posel considered the circumstances of the road rage incident in the most detail. He concluded, as already indicated, that the arthritic left shoulder condition, having already been aggravated by the subject incident, had suffered a more significant aggravation in the road rage incident.
Dr Posel also noted that a Third Party claim was ongoing in respect of that incident, and we note that no documentation regarding that claim is before us.
The opinion of A/Prof Kleinman may be put to one side, as he did not take any history of the subsequent road rage incident of 8 August 2012.
Dr Bodel, whilst taking a history of the road rage incident, failed to observe that it had already occurred when he had seen Mr Marsh on 29 September 2015: his comment that the incident had happened since that time was confusing, and affected the probative value of his comment that the road rage incident had caused a “minor” aggravation of the left shoulder and left knee, the main injury being to the neck.
The descriptions given to both Dr Kemp and Dr Posel were consistent. Dr Kemp recorded that the left shoulder condition was aggravated by the event, noting that the shoulder was catching and clicking more, to the extent that his “pain experience” was twice as bad as he had become used to prior to the road rage incident.
Dr Posel referred to that description and diagnosed that Mr Marsh had suffered a minor aggravation to his underlying constitutional osteoarthritis in his left shoulder in the subject injury, which had been significantly aggravated by the road rage incident.
We note Mr Marsh’s statement on 8 September 2015 that his left shoulder condition had settled down, but that assertion was not supported by Dr Kemp on 13 November 2012, nor Dr Posel on 25 May 2020. Mr Marsh’s unsupported assertion must be approached with some caution, in view of his somewhat colourful background.
The s 323 deduction
The deduction of 30% pursuant to s 323 was not the subject of any submissions from the appellant, and we accordingly confirm it. The available evidence demonstrated that the subject incident caused a significant aggravation to the pre-existing asymptomatic degenerative changes in Mr Marsh’s left shoulder.
DISCERNMENT
The left shoulder subsequent impairment
Applying the principles in Oakley, we do not find that the first category is applicable, noting that these principles were found by the Court in Johnson to be applicable in cases decided under the no-fault liability scheme under which the Commission practices. The road rage incident was entirely independent of Mr Marsh’s physical condition at the time.
Similarly, the third principle is not applicable either, as the damage sustained was an aggravation of the earlier injury.
As to the second principle, the additional impairment caused by a subsequent injury cannot be excluded where that impairment is in the nature of an aggravation of the subject injury.
It can be seen that the medical specialists who had taken a correct history, Dr Kemp and
Dr Posel, both advised that the left shoulder was aggravated in the road rage incident. Those opinions are consistent with the imaging, which showed in the MRI scan of March 2011 that there was already extensive osteoarthritic and other pathology indicative of a significant condition. The imaging before the MA also showed that the degenerative changes had become more severe, and the shoulder joint was bone-on-bone by 2016/2017.[33] Accordingly, we are satisfied that the impairment caused by the road rage incident aggravated the condition of Mr Marsh’s left shoulder, which had already been injured in the subject incident. The injury on 12 September 2010 consisted of the aggravation of pre-existing constitutional degenerative osteoarthritic changes, and the road rage incident of 8 August 2012 aggravated that injury. Accordingly the employer is liable for the additional WPI caused by that event. The MA was wrong at law to have deducted the additional WPI.
The s 323 deduction
[33] Appeal papers page 38.
Right shoulder
The basis of the assessment of 22% WPI for each shoulder was the conclusion by the MA that the extensive pre-existing degenerative changes were ‘significantly’ contributing to the ‘current condition,’ that is, the condition on the date of assessment.
Chapter 1.6a of the Guides provides that the claimant is to be assessed as he presents on the day of assessment, and this is clearly what the MA has done. On the date of assessment on or about 22 October 2020, the MA found that there was a 22% impairment in the right shoulder, which was then resulting from his extensive pre-existing degenerative changes, and the consequent shoulder replacement surgery in 2018. He found no ‘significant’ dysfunction causally associated with the subject incident, and yet made a deduction of 100% because the assessed impairment was due to a pre-existing condition.
His finding accordingly accepted that there was a causal relationship between Mr Marsh’s pre-existing condition and the condition with which he presented to the MA on or about 22 October 2020. This raises two questions.
Firstly, what was the MA’s basis for making such a causal connection? Secondly, depending on the answer to the first question, was the subsequent aggravation of the pre-existing condition causally connected to the subject incident?
Question 1: What was the basis for the MA’s finding?
With regard to the first question, the finding by the MA was not explained. It was based on an assumption that there had been pre-existing degenerative changes which he described as “extensive”.
We accept that by the time Mr Marsh came to surgery, the pre-existing changes could be so described, but there was no explanation from the MA as to why he found the changes to be pre-existing at all, let alone their being “extensive”. He adopted Dr Posel’s finding that there was a lack of evidence of any significant dysfunction in the right shoulder for several years following the subject incident – which we find to be an accurate observation – and yet found that Mr Marsh’s pre-existing changes were extensive. This opinion, with respect, was inconsistent with the lack of complaint or treatment following the subject incident on 12 September 2010 until some unidentified complaint caused the shoulder to be investigated by ultrasound on 26 February 2015.
It is also probable that both shoulders were asymptomatic at the time of the fall through the hatch, as there was no evidence of any shoulder symptoms prior to the injury. The fact that the condition of both shoulders was asymptomatic is not necessarily a bar to a deduction being made.
In Vitaz v Westform (NSW) Pty Ltd[34] the Court of Appeal held that if a pre-existing condition were a contributing factor to the impairment caused by the subject injury, even if it had been asymptomatic, an MA would be entitled, no doubt on an intuitive basis, to make a deduction without giving an explanation. However, at [43] Handley AJA gave a rider that no reasons would be required where the evidence did not present an alternative conclusion. In the present case the evidence clearly did.
[34] [2011] NSWCA 254.
As noted, the contemporaneous material did not disclose involvement of the right shoulder of any significance. It was mentioned generally as being part of “both” shoulders by Dr Clarke on 20 September 2010 but did not receive any medical attention for some years.
However, the MRI scan of the left shoulder on 17 March 2011 showed pathology that was consistent with the presence of asymptomatic degenerative change at the time of the subject injury on 12 September 2010. The medical experts on the Panel note that it is common for both joints to be affected where a person suffers from a constitutional osteoarthritic condition such as that of Mr Marsh, and accept that there was probably a similar condition in his right shoulder prior to the injury.
However whether the right shoulder was as badly affected as the left shoulder in the fall on 12 September 2010 is another matter. The MA appears to have assumed that, because “there did not appear to be any component of injury” from the subject incident, the whole of the condition of the right shoulder could be attributed to the pre-existing changes. He did not, however, explain the lack of attention given to the right shoulder until February 2015 and the alternative conclusion available on the evidence before him.
Dr Posel’s opinion that the fall into the hatch was a “possible minor aggravation” of the pre-existing condition we find to accord with the evidence.
Question 2: Was the subsequent aggravation of the pre-existing condition causally connected to the subject incident?
The answer to the second question thus depends on whether that minor aggravation was causally related to the subsequent deterioration of Mr Marsh’s right shoulder from February 2015, which is the earliest objective record of any investigation. We note the opinion of
Dr Posel that the findings on the ultrasound of 26 February 2015, although being diagnosed as a “frozen shoulder” by the radiologist, would probably have been caused by the underlying degenerative condition, had an x-ray been taken.In any event, it is relevant to note that when Mr Marsh was admitted to the Calvary Mater ED shortly after the incident on 12 September 2010, he made no complaint regarding his shoulders. The first complaint came eight days later, at which time the complaint of pain in both shoulders was treated by panadeine forte. Whilst the left shoulder condition progressed to the point where the MRI was taken in March 2011, the right shoulder settled down. The next involvement of the right shoulder did not occur until 26 February 2015, which is broadly consistent with the history taken by A/Prof Kleinman, who on 19 February 2016 recorded that the pain in both shoulders had severely increased over about two years, and that the right shoulder by February 2016 was worse than the left.
We are accordingly satisfied that the minor aggravation of Mr Marsh’s pre-existing condition on 12 September 2010 was of a transient nature, and that it settled down. It did not re-occur until about February 2015.
That being the case, the causal chain between the fall down the hatch and Mr Marsh’s right shoulder condition is broken. There is a strong causal connection between the pre-existing condition and Mr Marsh’s current state, but the incident of 12 September 2010 was no more than a transient episode which briefly made symptomatic Mr Marsh’s pre-existing condition. It was no more than a temporary aggravation.
Accordingly, whilst Mr Marsh suffered an injury on 12 September 2010 to his right shoulder, it took the form of a transient aggravation of his pre-existing right shoulder condition, which was of a temporary nature, and which did not cause any permanent impairment. It follows that, for different reasons, the finding of the MA regarding the right shoulder must be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 June 2021 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
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 Dr 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) |
| Left lower extremity | 12/09/10 | Chap 3 P 13 | P546 T17-33 | 1% | 0 | 1% |
| Right upper extremity | Chap 2 p 10 | P476 F 16-40 | 0% | 0 | 0% | |
| Left upper extremity | 22% | 3/10th | 15% | |||
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
John Wynyard
Member
Dr David Crocker
Medical Assessor
Dr Brian Noll
Medical Assessor
10 January 2022
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