Meira v Kimberley Kampers Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Meira v Kimberley Kampers Pty Ltd [2022] NSWPICMP 371
APPELLANT:	Stewart Meira
RESPONDENT:	Kimberley Kampers Pty Ltd
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Dr Margaret Gibson
MEDICAL ASSESSOR:	Dr J Brian Stephenson
DATE OF DECISION:	26 September 2022
CATCHWORDS:	wORKERS cOMPENSATION - Injury to shoulders; extent of appropriate section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction when there had been a long series of pre-injury dislocations described to doctors in the early stages of treatment supported by radiology; no adequate reasons given for two-thirds deduction for contalateral shoulder; reasons given with respect to scarring; Held – Medical Appeal Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 July 2022 Stewart Meira lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 July 2022.
Mr Meira relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) - that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, the ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 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

Mr Meira was employed by Kimberley Kampers Pty Ltd (Kimberley) to perform assembly and metal fabrication work. On 12 December 2016, as he was walking to put his tools away at the end of the day, he tripped and fell with his arms outstretched. His left shoulder took the weight of the fall and his right shoulder dislocated on impact. He injured both of his thumbs. He was taken to Ballina Base Hospital where the dislocation was relocated.
Mr Meira underwent surgery on 21 March 2017 and again on 28 May 2019.
Before the injury, Mr Meira’s right shoulder had dislocated on several occasions, though he said in his statement that he had no incidents in the 10 years before the injury.
The Medical Assessor was asked to assess Mr Meira’s upper extremities (shoulders) and TEMSKI scarring. He assessed 12% whole person impairment (WPI) as a result of the injury to the right shoulder from which he deducted one-third under s 323 of the 1998 Act, resulting in an assessment of 8% WPI. He assessed 12% WPI in respect of the left shoulder from which he deducted two-thirds under s 323. He assessed 0% WPI in respect of scarring. His total assessment was 12% WPI.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination. While the Medical Assessor made an error with respect to the application of s 323, we have the same information about Mr Meira’s medical history that the Medical Assessor did and can therefore determine the appeal on the papers.

EVIDENCE

We have 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.
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 we have considered them.
In summary and in submissions prepared by his solicitor, Mr Garling, Mr Meira submitted that the Medical Assessor had failed to apply s 323 properly. He said that the medical evidence did not disclose a pre-existing injury, condition or abnormality but only a history of multiple dislocations. He said that this did not establish that there was a pre-existing impairment, noting that he had successfully carried out a heavy occupation.
In the alternative, Mr Meira submitted that the evidence supported a one-tenth deduction at most.
With respect to the left shoulder, Mr Meira submitted that the Medical Assessor did not provide any reasoning to support a two-thirds deduction.
Mr Meira submitted that the Medical Assessor did not make any comment with respect to scarring.
In reply and in submissions prepared by its solicitor, Ms Davis, Kimberley submitted that a deduction of one-third was appropriate in respect of Mr Meira’s right shoulder, noting the evidence with respect to recurrent dislocations. Kimberley said that a deduction of one-tenth would be at odds with the evidence.
With respect to the left shoulder, Kimberley noted that the Medical Assessor referred to X-ray evidence in August 2018 of degenerative change and noted that there no corroborating evidence in the file as to the condition of that shoulder. Kimberley said that the deduction of two-thirds was an appropriate exercise of the Medical Assessor’s clinical judgement.
Kimberley submitted that the Medical Assessor set out his examination findings with respect to scarring and that they were consistent with the Guidelines.

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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284

Right shoulder

The Medical Assessor set out his findings on examination and recorded the range of movement. He said that there was an “obvious ruptured long head of biceps.” The Medical Assessor set out the scans that he reviewed.
The Medical Assessor assessed 20% upper extremity impairment (UEI) noting that the range of movement in each of Mr Meira’s shoulders was substantially the same. He set out his comments on the opinions of other doctors whose reports are in the file:
“Dr Ezekiel Tan in his first report of 22/02/17 identifies 25 previous occasions where there had been shoulder dislocations on the right side.
Specialist Shoulder Surgeon, Dr Desmond Bokor in his report of 22/01/19 advised of the further injury with dislocation to Mr Meira’s right shoulder in the surf in December 2018.
Specialist Orthopaedic Surgeon, Dr James Bodel in his report of 08/10/20 has relatively similar whole person impairments to mine (although the left shoulder has better functional capacity). He does not advise on any deduction, despite the history of extensive preexisting right shoulder pathology.
Specialist Orthopaedic Surgeon, Dr Richard Powell in his report of 22/12/20 also has similar whole person impairment findings. He advises that the left shoulder is not work related and that there should be a deduction of half for the condition of the right shoulder due to the pre-existing pathology. I believe this level of deduction is a little excessive, although there certainly should be a fairly substantial deduction. In my assessment there will be a deduction of one-third.”
The Medical Assessor gave reasons for the deduction he made:
“With the right shoulder, there has been extensive pre-existing dysfunction. Nevertheless, up until the time of this fall, Mr Meira was able to carry out a fairly active physical occupation very successfully. Therefore, whilst there should be a substantial deduction for the pre-existing pathology, I am persuaded that this should be one-third of the calculated whole person impairment. This would therefore reduce the 12% down to 8%.”

The evidence in the file

Mr Meira said in his statement:
“I have had dislocation issues with my right shoulder prior to the subject accident, in fact I first dislocated my right shoulder around twenty-five (25) years ago. At the time, I underwent a reduction in the Emergency Department and I was without incident for ten (10) to fifteen (15) years after.
I had a further recurrence of the right shoulder about ten (10) to twelve (12) years ago,
when I dislocated (half pop dislocation) my shoulder whilst playing tennis. I once again had a reduction at the hospital and returned to normal life.
Essentially I had no further incidents for the ten (10) years leading up to the subject accident and I would describe the right shoulder as strong and stable prior to the accident at work. In fact, I was surfing, actively playing sports and working physically hard, without incident prior to the subject accident.”
There are no reports which pre-date the incident in the file. There was no reference to Mr Meira’s right shoulder on his one visit to Mullumbimby Comprehensive Medical Centre before the injury.
Mr Meira attended Ballina District Hospital on the day of the injury. The notes begin:
“Triage Presenting Information: dislocated shoulder
Additional Presenting Information: right shoulder dislocation, recurrent
pt states tripped fell with outstretched arm”.
A referral to the “Ortho Clinic” reads:
“Right shoulder dislocation, recurrent dislocation.
pt states tripped fell with outstretched arm
clinically right anterior dislocation
pt has had numerous dislocations previously, He reduces the shoulder himself.
He works as laborer.
Right hand dominant.
Initially reduced the shoulder easily, however the shoulder dislocated spontaneously twice more.
placed in a shoulder immobiliser.
IMP unstable shoulder pt wants to leave, I insisted on post reduction film and strongly suggested a fracture clinic appt for consideration of glenoid repair.”
Mr Meira saw Dr Prodger who referred him for an MRI scan, which was undertaken on 22 December 2016. The clinical history on the report read: “recurrent dislocation right shoulder.” The scan showed “a large Hill-Sachs lesion with approximately 7 mm of depression.” Dr Prodger wrote to Mr Meira’s general practitioner on 25 January 2017 and described the injury and treatment in hospital. He said:
“This is on the background of recurrent dislocation of his right shoulder. His first dislocation was fifteen years ago when. he fell over sustaining a dislocation requiring reduction in the Emergency Department. His shoulder was quite good for the next seven years but then while playing tennis his shoulder dislocated again anteriorly for which again he needed reduction in hospital. Over the subsequent four years his shoulder dislocated multiple times with increasing ease. The last time Stewart dislocated his shoulder he said he was just stretching his arms above his head. In this stage he engaged in quite an aggressive rehabilitation program as he did after the first dislocation fifteen years ago. Stewart said that for the last four years his shoulder has not dislocated and has felt strong and stable.
…
Stewart needs surgical intervention to prevent ongoing instability about his shoulder. Given his previous history of dislocation then the best approach would be a honey procedure being a Latarjet, or an open stabilisation, of the right shoulder.”
On 8 February 2017 Dr Prodger wrote to the general practitioner and said:
“He has had an MRI scan of his shoulder which as well as the large Hill Sach's defect associated with recurrent anterior dislocation he has a massive supraspinatus tear.”
Dr Prodger referred Mr Meria to Dr Tan. In his referral letter he noted that Mr Meira had a “large cuff tear/recurrent instability right shoulder” Dr Tan reported on 22 February 2017 and said:
“He gives a history of right shoulder instability since the age of 35 when he had his first instability episode and he has had over 25 dislocations. He has never had any significant issues however with range of motion or ongoing pain after a dislocation episode. Since this latest dislocation, he reports inability to use the shoulder during the day and has pain at night, which he has not had with previous instability episodes.”
Mr Meira’s solicitor qualified Dr Woo who provided a report on 3 November 2018. He said:
“He had history of recurrent dislocation of the right shoulder.
The first dislocation was 20 years ago when he fell in the street. He was treated at St Vincent’s Hospital with closed reduction followed by immobilisation with an arm sling for 6 weeks.
He had a second dislocation 10 years ago while playing tennis when he was doing a smash at the net. He was treated at Prince of Wales Hospital with closed reduction.
He had a few episodes of subluxation and spontaneous reduction and did not require medical treatment.
He was able to continue his construction work and did not have any problem when he commencd employment with Kimberly Kampers in 2016.”
Dr Woo noted when reviewing the MRI scan dated 3 February 2017 that “there is a large Hill-Sachs lesion consistent with the history of recurrent dislocation.”
Mr Meira began to see Dr Bokor in mid 2018. On 7 November 2018 Dr Bokor said:
“He says he is getting symptoms in his shoulder, discomfort and we know from his MRI scan that he has a large bony Hill-Sachs defect. He has had a stabilisation and cuff surgeries, but his cuff is now thin. He demonstrates a reasonable range of motion though he does have some apprehension features.
He clearly states he has not had the shoulder slip out of joint he just feels uncomfortable and the shoulder was not normal.
My recommendation is to continue with his exercise program.
Should he have any further episodes of subluxation or instability which he currently denies he is having then he would benefit from a Laterjet procedure.
I am not convinced that going in and doing a second attempt at repairing the thinned rotator cuff is going to have a great degree of improvement since his primary symptoms are probably more instability related.”
In late 2018 Dr Bokor anticipated that surgery would be required if further episodes of subluxation or instability occurred. In December 2018, Mr Meira suffered a further dislocation in the surf and Dr Bokor recommended surgery which was carried out on 28 May 2019.
Mr Meira saw Dr Bodel at the request of his solicitor on 30 June 2020. Dr Bodel’s report is dated 8 October 2020. He said:
“Dr Prodger observed that this injury was in fact a recurrent dislocation as this gentleman had previously dislocated the shoulder about 15 years earlier. That had been treated in the Accident and Emergency Department with a closed reduction and he had done very well for the ‘next seven years’ but then while playing tennis his shoulder dislocated again anteriorly and he needed another reduction in hospital.
He has therefore had a number of these reductions and the fall at work was the most recent episode.”
Dr Bodel noted the presence of the Hill Sachs lesion. However, when assessing permanent impairment he said:
“In regard to the right shoulder, I am aware that this gentleman has had a history of recurrent dislocation in the region of the right shoulder. At the time that he commenced work at Kimberly Kampers Pty Limited, his shoulder was stable and had not dislocated for some years. He therefore had no history of any pre-existing impairment in the shoulder at that time as the shoulder was functioning in a stable manner. There is therefore no basis for a deduction for pre-existing impairment in accordance with Section 323 in this circumstance.”
Dr Bodel did not record a history of the dislocation in December 2018 which led to the surgery being undertaken in 2019. He did not comment on the findings on the MRI scan taken in 2017. Those findings are consistent with a long standing condition and recurrent dislocations.
Dr Powell saw Mr Meira at the request of Kimberley. He said:
“In summary, there is a 12% whole person impairment. There is clear evidence of pre-existing pathology that needs to be taken into account. Mr Meira has a long history of chronic instability, though the workplace incident caused the aggravation of his condition in association with rotator cuff pathology. The initial surgery addressed both the instability and rotator cuff tear. He was involved in further nonwork-related incidents and further investigation indicated that the rotator cuff repair was intact though the stabilisation had failed. Subsequent surgery performed by Dr Bokor addressed the latter with a Latarjet procedure. On the basis of above information, I would make a reduction of one half of the above figure to reflect the extent of pre-existing pathology. This leads to the final figure of 6% WPI.”

Consideration

We accept that Mr Meira may have been able to undertake his work duties at the time of the injury in early 2017. However, in the period immediately following the injury he provided a history to a variety of practitioners that he had suffered multiple dislocations before the injury. Those histories are at odds with the statement signed in April 2021 and we consider that the contemporaneous history is more likely to be accurate.
Importantly, the early radiology showed a large Hill-Sachs lesion, essentially a dent in the head of the humerus, and marked degenerative change. Those findings are consistent with the history of recurrent dislocations in the years preceding the injury.
In addition to a dislocation, Mr Meira suffered a rotator cuff injury at the time of the injury in 2016. He underwent surgery to repair the rotator cuff, performed by Dr Tan. Mr Meira underwent further surgery performed by Dr Bokor following another episode of dislocation in the surf in December 2018.
The Medical Assessor accepted that there should be a substantial deduction for pre-existing pathology but noted that Mr Meira was able to successfully carry out a physical occupation before the injury. He deducted one-third under s 323 and considered Dr Powell’s deduction of one-half excessive.
The pre-existing condition clearly contributed to the impairment resulting from the injury. The Hill-Sachs lesion and degenerative changes pre-dated the injury. The dislocations before the injury led to a break in the capsule attachment in shoulder from the head of the humerus. Once that occurred, Mr Meira’s shoulder would dislocate more easily.
Section 323(2) provides that if the extent of the appropriate deduction will be difficult or costly to determine, a deduction of one-tenth is to be applied unless it is at odds with the available evidence. A deduction of one-tenth is at odds the contemporaneous histories of recurrent, multiple dislocations and the degenerative changes shown on the MRI scan less than two months after the injury. A deduction of one-third was open to the Medical Assessor in the exercise of his clinical judgement.

Left shoulder

The parties agreed that the Medical Assessor should assess Mr Meira’s left shoulder. The Medical Assessor said:
“Mr Meira advised that he had always been concerned about the state of his left shoulder and had tried to get this looked at and had mentioned it to Dr Des Bokor but support for its investigation from the insurance company never came through. The only issue about his left shoulder appears to have been a plain x-ray in early August 2018 which only demonstrated degenerative changes in the acromio-clavicular joint.”

The Medical Assessor noted an almost identical range of movement in both Mr Meira’s shoulders and said they resulted in the same impairment assessment. He said:
“He has always claimed that he injured the left shoulder in the same event. Nevertheless, in perusing the detail in the clinical file, although the range of movement at this assessment was virtually identical to each shoulder, up until relatively recently the range of movement of the left shoulder has been fairly good. At this assessment it was virtually identical to the right shoulder. There is almost no clinical detail about the condition of the left shoulder. The only radiological investigation has been a plain x-ray in August 2018. This only demonstrates degenerative changes in the acromio-clavicular joint.”
The Medical Assessor assessed 12% WPI in respect of Mr Meira’s left shoulder. When assessing the deduction under s 323 he said:
“With the left shoulder, this is a very controversial issue. Mr Meira came across as a decent and hardworking man who is extremely worried about his current condition. I have no doubt that in this fall there would have been significant impact transmitted through to his left shoulder as well. The fact that the right shoulder was so badly dislocated and there was no dislocation of the left shoulder would naturally have resulted in the major focus of attention being on the right shoulder. The range of movement of the left shoulder seems to have been fairly good until around 2020, when it deteriorated initially as recorded by Dr James Bodel. It had deteriorated further when seen by Dr Richard Powell later in the same year. When I saw him at this assessment, the range of movement of the left shoulder was almost identical to that of the right. I am therefore persuaded that there has been a contribution from this fall to the dysfunctional state of the left shoulder. Therefore, in terms of deductions, it would see reasonable that with the left shoulder there is a deduction of two-thirds of the calculated impairment. This would reduce the whole person impairment of the left shoulder down to 4%.”
The referral to the Medical Assessor was made by consent and there are no findings as to whether the left shoulder condition was an injury or a consequential condition. Kimberley’s insurer disputed that it was an injury or a consequential condition. While that issue does not impact on the assessment of impairment, it may have shed light on the extent of the s 323 deduction which was appropriate.
Mr Meira said that his left shoulder took his weight as he fell and that it was painful for several months after the injury, though the focus of treatment was on his right shoulder. He said that his left shoulder was overlooked and that it started to present problems during his treatment by Dr Bokor in mid 2018, though his requests for treatment were again disregarded. Mr Meira said that he has relied on his left shoulder and that it is now more problematic.
The early medical reports in the file reflect the concern with Mr Meira’s right shoulder and do not refer to his left shoulder. On 20 June 2018 Dr Bokor noted that Mr Meira said that he suffered increasing pain in the left shoulder as a result of favouring the right. Dr Bokor noted that he needed formal approval before looking at Mr Meira’s left shoulder.
An X-ray was undertaken at the request of Dr Bokor on 1 August 2018, on the same day as an X-ray and an MRI scan and CT arthrogram of his right shoulder. The left shoulder X-ray was reported as showing:
“There is OA at the acromioclavicular joint. Glenohumeral joint appears normal. There are no calcifications in soft tissue at the rotator cuff tendon region. No other abnormality shown.”
Dr Bokor did not comment on the left shoulder X-ray in his report dated 22 August 2018 nor did he mention it again. No other investigations of the left shoulder have been undertaken or recommended.
In November 2018, Dr Woo said that Mr Meira’s left shoulder had improved with physiotherapy.
In October 2020 Dr Bodel accepted that Mr Meira had suffered a soft tissue injury to the left shoulder in December 2016. He observed a greater range of movement in the left shoulder than the Medical Assessor did in July 2022. He said there was impingement but no instability in both shoulders.
In December 2020 Dr Powell did not consider that Mr Meira’s left shoulder had reached maximum medical improvement and did not agree that he had suffered an injury or consequential condition. He considered that the left shoulder condition was degenerative. Despite that opinion, Kimberley agreed that Mr Meira’s left shoulder should be assessed by the Medical Assessor without any determination by the Personal Injury Commission.
It was open to the Medical Assessor to consider the likely causation of the condition and to make any appropriate deduction under s 323. He noted the deterioration since the examinations of Drs Bodel and Powell and the lack of investigation. He accepted that the range of movement observed was accurate. The Medical Assessor agreed that there was a contribution to the left shoulder condition from the fall but did not provide any reasons for making a deduction of two-thirds of the assessed impairment.
Two-thirds is a large deduction and detailed reasons were required to support it. It is larger than the deduction made in respect of the right shoulder even though there is no evidence that Mr Meira has suffered any dislocations of his left shoulder. The Medical Assessor did not explain why the deduction should be greater.
The Medical Assessor accepted that degenerative change contributed to the loss in the left shoulder and that finding was open to him. The 2018 X-ray report does not suggest that the degenerative change is substantial. In light of Mr Meira’s evidence of additional reliance on his left shoulder and in the absence of any other medical explanation for the deterioration in his range of movement, it was appropriate for the Medical Assessor to apply s 323(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.”
The appropriate assessment for the left shoulder was 12% WPI less one-tenth, rounded up to 11%.

Scarring

Mr Meira submitted that the Medical Assessor did not record his findings with respect to scarring. In fact, the Medical Assessor set out his observations of the scars and his reasons for failing to assess impairment resulting from them.
Mr Meira underwent surgery to his right shoulder on two occasions. The Medical Assessor said:
“There were also several small surgical scars associated with both surgical procedures. These had healed well and were quite difficult to see. They do not cause him any specific issue.”
When providing his reasons for assessment, the Medical Assessor said:
“The scars are uncomplicated surgical scars for a standard defined surgical procedure and as such, carry 0% WPI.”
In making his assessment, the Medical Assessor considered the criteria in Table 14.1 of the Guidelines, albeit in a truncated form. He had regard to paragraph 14 .6 of the Guidelines in making his assessment which was a valid exercise of his clinical judgement based on his recorded observations and do not disclose error.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 July 2022 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:	W1246/21
Applicant:	Stewart Meira
Respondent:	Kimberley Kampers 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 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)
Right upper extremity (shoulder)	12.12.2016	Ch 2 p 10	P 476 figure 16-40; P 477 figure 16-43; P 479 figure 16-46	12	One-third	8
Left upper extremity (shoulder)	12.12.2016	Ch 2 p 10	P 476 figure 16-40; P 477 figure 16-43; P 479 figure 16-46	12	One-tenth	11
Scarring	Ch 14, Table 14.1, p 79	0	0	0
Total % WPI (the Combined Table values of all sub-totals)					18%

[2022] NSWPICMP 371

26 September 2022