MSS Security Pty Ltd v Elsaidy

DETERMINATION OF APPEAL PANEL
CITATION:	MSS Security Pty Ltd v Elsaidy [2024] NSWPICMP 152
APPELLANT:	MSS Security Pty Ltd
RESPONDENT:	Nadine Chaar Elsaidy
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	15 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Injury to right shoulder and neck on 6 January 2021; appellant employer appealed on grounds of fresh evidence, the assessment being made on the basis of incorrect criteria and demonstrable error; fresh evidence admitted; worker re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 October 2023 MSS Security Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr S K Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
26 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The respondent (Ms Elsaidy) sustained an injury to her right upper extremity (shoulder) and cervical spine in the course of her employment with the appellant on 6 January 2021.
Ms Elsaidy lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 21 August 2023 in which she claimed 16% whole person impairment (WPI) of the right upper extremity and cervical spine as a result of injuries sustained on 6 January 2021 in her employment with the appellant.
The matter was referred to the Medical Assessor S K Cyril Wong, on 19 September 2023 for assessment of WPI of the right upper extremity and cervical spine and left upper extremity with the date of injury being 6 January 2021.
The Medical Assessor examined Ms Elsaidy on 22 September 2023 and assessed 10% WPI of the right upper extremity and 5% WPI of the cervical spine. The combined total was 15% WPI as a result of the injury on 6 January 2021.

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.
The appellant requested that Ms Elsaidy be re-examined by a Medical Assessor who is a member of the Appeal Panel. The appellant submitted it was in the interests of justice for
Ms Elsaidy to be re-examined because of the inconsistencies identified in the surveillance report.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Ms Elsaidy to undergo a further medical examination because fresh evidence was admitted and there was insufficient evidence on which to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) surveillance report of Procare dated 29 September 2023 (surveillance report).
If the surveillance report is admitted, Ms Elsaidy seeks to admit the following evidence:
(a) supplementary statement dated 14 November 2023.
The appellant submitted that the surveillance report was not available to, and could not reasonably have been obtained by the appellant at the time of the medical assessment on
22 September 2023 as it post dated the MAC. The appellant noted that the surveillance was only completed on 25 September 2023, after Ms Elsaidy attended the examination with the Medical Assessor. The appellant argued that accordingly the report, and the surveillance footage could not have been obtained prior to the MAC being issued.
The appellant submitted that the surveillance report was of of significant probative value as it demonstrated Ms Elsaidy’s functioning which was arguably inconsistent with the findings of the Medical Assessor. In particular, the report revealed Ms Elsaidy “was observed to pick up and rearrange several chairs and a table within the establishment” on 20 September 2023. On the same day, Ms Elsaidy was observed to have “raised her right arm above shoulder height and placed a handbag over her head” and later to have “reached with both hands above shoulder height, to collect serviettes and straws”. Ms Elsaidy “was observed carrying several bags on her left shoulder as she departed from the dwelling” on 22 September 2023.
The appellant submitted that these findings were significant in light of the range of movement elicited by the Medical Assessor during his assessment of Ms Elsaidy. The Medical Assessor concluded “there is no inconsistency found in this examination” at page 4 of the MAC. The appellant observed that the range of movements demonstrated in the photographs contained in the surveillance report were inconsistent with the findings of the Medical Assessor, in particular, the photographs showing range of movement of the right shoulder at page 13 of the surveillance report.
Ms Elsaidy opposed the admission of the fresh evidence, and submitted that if this evidence was allowed the considerations of procedural fairness and natural justice would warrant that her supplementary statement be allowed to be admitted as fresh evidence.
Ms Elsaidy noted that the the appellant said that the surveillance report ought to be considered as relevant information on appeal because it was not available, and could not reasonably have been obtained, before the medical assessment conducted on
22 September 2023. The explanation for this ground of appeal was simply that the surveillance report “post-dates the MAC”. This reasoning was insufficient given the surveillance activity and report could have been conducted and finalised well in advance of the medical assessment on 22 September 2023. Instead, the appellant's surveillance window from 19 to 25 September 2023, ending on a date after the medical assessment, suggested that there was not a reasonable attempt made to obtain the information, which could have reasonably been obtained prior to the medical assessment.
Ms Elsaidy’s injury was on 6 January 2021 and she submitted that the appellant had a period of over three years to conduct surveillance and obtain the surveillance evidence. The appellant had reasonable and ample opportunity to obtain such evidence even if it did not make any attempt for surveillance to be conducted and for a report to be obtained before the medical assessment. Therefore, the appellant should fail on this ground and the surveillance report should not be allowed into evidence.
Ms Elsaidy submitted that the evidence carried no probative value, for the reasons outlined in her supplementary statement dated 14 November 2023. Namely, the surveillance report did not show Ms Elsaidy to be performing any tasks which was against any of the medical evidence, or even her own stated capacity. The surveillance report was therefore of no probative value whatsoever and should not be allowed into evidence.
Ms Elsaidy noted that on page 2 of the MAC, the Medical Assessor listed her reported capacity and reported difficulties. These include that she “can drive for up to 30 minutes”, “can manage most self-care activities without help”, “needs assistance with domestic duties such as vacuuming and bed making and washing her hair and doing up zippers at the back”. (paragraph 2 on page 2 MAC). The photographs contained in the surveillance report were of no significance and did not hold any probative value.
In her supplementary statement dated 14 November 2023 Ms Elsaidy commented on the various photographs attached to the surveillance report. She denied exaggerating or misrepresenting her conditions.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
In State of New South Wales v Ali [2018] NSWSC 1783 (Ali), it was noted by his Honour Harrison J that s 327(3)(b) limited that right of appeal to circumstances where additional relevant information was available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“…section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite. That limitation suggests, as a matter of ordinary statutory construction, that an appeal with respect to an alleged reduction in the degree of permanent impairment is neither contemplated by the words of s 327 in general nor provided by s 327(3)(b) in particular.”
The surveillance was conducted on 19, 20, 22 and 25 September 2023. The examination by the Medical Assessor took place on 22 September 2023 and the MAC was issued on
26 September 2023. The surveillance report was dated 29 September 2023.
Ms Elsaidy argued that the appellant had had reasonable and ample opportunity to obtain such evidence prior to the Medical Assessor’s determination. The Appeal Panel accepted that no explanation was provided by the appellant as to why the surveillance had not been conducted at an earlier stage before the examination by the Medical Assessor. However, there is no earlier surveillance report. Instructions were given to Procare by the respondent’s solicitors, Hall & Wilcox Lawyers, to conduct surveillance of Ms Elsaidy on 28 August 2023. Surveillance did not commence until 19 September 2023. Two of the four days of surveillance took place before the examination by the Medical Assessor. The activities shown in the photographs are not unrelated to the medical exercise in which the Medical Assessor was required to engage. On balance, the Appeal Panel was satisfied that the surveillance footage and the surveillance report could not reasonably have been obtained by the appellant before the medical assessment appealed against.
The Appeal Panel considered that the photographs had substantial probative value because of the range of movement shown in the right shoulder. The surveillance material suggested some inconsistency or supported a different degree of permanent impairment.
Ms Elsaidy also submitted that the surveillance report and attached photographs had no probative value. The Appeal Panel was satisfied that the surveillance report and attached photographs were of significant probative value such that it was reasonably clear that it could change the outcome of the case. The photographs showed that Ms Elsaidy had a range of movement in the right shoulder that was inconsistent with the examination findings of the Medical Assessor.
The Appeal Panel determines that the following evidence, should be received on the appeal:
(a) surveillance report of Procare dated 29 September 2023 (surveillance report), and
(b) supplementary statement dated 14 November 2023.

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.

Further medical examination

Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 5 February 2024 and reported to the Appeal Panel.

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a)    ground A – additional evidence relied upon (see above under Fresh Evidence);
(b)    ground B - the Medical Assessor erred in his finding that Ms Elsaidy “has symptoms of pain and range of motion restrictions from over usage compensating for the right shoulder impairment and it could not be the basis for adjusting the right shoulder impairments”. In reaching this conclusion, the Medical Assessor went beyond the terms of the ‘medical dispute’ between the parties which was referred for determination (see Skates v Hills Industries Ltd [2021] NSWCA 142). In this case Ms Elsaidy claimed in the ARD that she had suffered a “soft tissue injury to her neck, shoulders and back” on 6 January 2021. The claim by Ms Elsaidy for permanent impairment compensation on 30 August 2022 for 16% WPI was based on the assessment of Dr Bodel in his report dated
30 August 2022;
(c)    the claim for permanent impairment compensation was limited to the cervical spine and right shoulder. Dr Bodel provided an assessment of 0% WPI for the left upper extremity;
(d)    Ms Elsaidy did not assert that she had suffered a consequential condition affecting her left shoulder. The left shoulder was not the subject of a “valid claim” for permanent impairment compensation made by Ms Elsaidy or the subject of a claim for an alleged consequential condition. The allegation of a consequential left shoulder condition was neither made by Ms Elsaidy, nor determined by the appellant;
(e)    accordingly, the Medical Assessor fell into demonstrable error in concluding
Ms Elsaidy presented with “symptoms of pain and range of motion restriction” from “over usage compensating for the right shoulder”. In reaching this conclusion, the Medical Assessor made a finding on causation and injury which was not open to him under the terms of the referral which was limited to a claim for permanent impairment compensation in respect of the right upper extremity and the cervical spine/neck;
(f)    specifically, the finding that Ms Elsaidy had symptoms of pain in the left shoulder due to ‘over usage compensation for the right shoulder’ was not a part of the medical dispute crystallized between the parties; and was beyond the scope of the ‘Referral for Assessment of Permanent Impairment’;
(g)    ground C – the Medical Assessor made a demonstrable error in failing to deduct the impairment for restricted range of movement in the uninjured left shoulder when providing an assessment of impairment for the injured right shoulder. In so doing, the Medical Assessor based his assessment on incorrect criteria;
(h)    the Medical Assessor erred in not subtracting the impairment in the uninvolved/uninjured contralateral left shoulder joint ‘from the calculated impairment for the involved joint’ as required by paragraph 2.20, at page 12 of the Guidelines;
(i)    the Guidelines required the Medical Assessor to compare the measurements in both shoulder joints. The Medical Assessor did not do this;
(j)    the Medical Assessor erred in failing to provide adequate reasoning for his decision to not subtract impairment in the contralateral “normal/uninjured” left shoulder from the impairment assessment of the right shoulder. The Medical Assessor also erred in failing to provide the range of movement measurements for the left shoulder elicited during his examination of Ms Elsaidy. These two failures both individually and in conjunction constituted a demonstrable error in the MAC as well as a failure to provide reasoning;
(k)    the provision of range of movement measurements for the left shoulder would have allowed the parties to ascertain whether the range of movement in the left shoulder was restricted, and any impairment due to this restriction ought to be deducted from the right shoulder impairment. This was likely to have resulted in a material difference in the assessment of impairment. The failure to provide the range of movement measurement for the left shoulder and to deduct any impairment assessment for the left shoulder from the right shoulder impairment means the MAC was not based on a fair climate, and
(l)    the MAC should be revoked and Ms Elsaidy re-examined.
The respondent ‘s submissions included the following:
(a)    ground A – fresh evidence (see above under Fresh Evidence);
(b)    ground B –the Medical Assessor has not gone beyond the limits of his jurisdiction in terms of medical assessment referral. The Medical Assessor noted the impairment to the left shoulder as it relates to the method of assessment of the right shoulder. The Medical Assessor had not assessed the left shoulder as such, but has simply noted that the range of motion in the left shoulder cannot be used as the baseline;
(c)    the evidence contained in the ARD is that Ms Elsaidy did in fact sustain an injury to her left arm and shoulder (left upper extremity) as well as her right upper extremity (shoulder) and as well as her cervical spine (neck) in the work accident. However, she did not make a claim for permanent impairment in relation to the left upper extremity as the worker’s medical evidence was that there was a 0% WPI related to the left upper extremity. Therefore, the Medical Assessor was not asked to assess the left upper extremity, because the worker’s medical assessment found 0% WPI, and therefore no claim for impairment was made in relation to the left upper extremity;
(d)    the Medical Assessor had evidence before him which indicated that Ms Elsaidy did sustain injury to the left shoulder which was not being assessed. Reference is made to the ARD as follows:- (i)Ms Elsaidy’s statement at page 2 of the ARD in which she stated that she is experiencing pain and restriction of movement in her neck and shoulders (paragraph 23 of statement). (ii) On page 12 of the ARD,
Dr Bodel’s report also noted that Ms Elsaidy is complaining of pain in both shoulders- worse on the right. Page 14 of the ARD: Dr Bodel’s report noted the history of the injury which involves the left arm and hand. (iv) Page 42 of the ARD: Ultrasound report of Left Shoulder, dated 13 April 2022, which noted a history of left shoulder pain;
(e)    the Medical Assessor has therefore correctly identified that the method of assessment, which is being proposed by the appellant, which required subtracting the impairment in Ms Elsaidy’s uninjured left shoulder and calculating impairment assessment of the right shoulder, was not appropriate in the circumstances. The Medical Assessor has explained his reasons clearly for not utilising this method of assessment and has provided in detail the method of assessment which he believed to be appropriate in the circumstances. This was a determination for the Medical Assessor to make alone in terms of which method of assessment he believed was appropriate to use in the circumstances;
(f)    the Medical Assessor did not fall into demonstrable error by assessing her injury in this way and there was no sufficient basis for an appeal against the Medical Assessment Certificate based on this ground;
(g)    the Medical Assessor had not made any findings in relation to the uninvolved left shoulder, other than to use his clinical judgement and make a decision that it could not form the basis of comparison with the right shoulder which was being assessed for permanent impairment. The Medical Assessor did not provide an assessment rating of impairment for the left shoulder;
(h)    ground C – assessment was based on incorrect criteria. The Medical Assessor provided his explanation in accordance with the requirement in paragraph 2.20 of the Guidelines. The assessment was not made based on incorrect criteria;
(i)    the appellant suggests that the Medical Assessor failed to apply the Guidelines. That is not true, as the Medical; Assessor clearly explained why the method of assessment was not appropriate in the circumstances;
(j)    the method of assessment used by the Medical Assessor was reasonable in the circumstances;
(k)    the decision as to which is the best method of assessment is a decision to be made by the Medical Assessor and he was within his rights to do so. He has not misapplied any of the Guidelines, and
(l)    the MAC should be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 327(2) of the 1987 Act was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In Queanbeyan Racing Club v Burton [2021] NSWCA 304, Basten JA, with whom Leeming JA and McCallum JA agreed, said at [22]: “…it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made”. At Basten JA said:
“32…It would have been impermissible for the Appeal Panel to reconsider an element of the assessment which had not been the subject of the appeal to it.
33. To suggest that once the Panel has determined to set aside the certificate, it was “required to undertake a fresh assessment of the plaintiff’s whole persom impairment in accordance with the Guides” is also erroneous. The fact that the Panel decided to set aside the certificate did not expand the scaope of its appeal function: rather, setting aside the certificate was the necessary consequence of the proper exercise of the appeal function.”

Ground A –availability of additional relevant information

This ground is dealt with above under “Fresh Evidence”. The surveillance report of Procare dated 29 September 2023 and the supplementary statement of Ms Elsaidy dated
14 November 2023 are received as evidence in this matter.

Ground B

The appellant submitted that the Medical Assessor erred in his finding that Ms Elsaidy “has symptoms of pain and range of motion restrictions from over usage compensating for the right shoulder impairment and it could not be the basis for adjusting the right shoulder impairments”. In reaching this conclusion, the Medical Assessor went beyond the terms of the ‘medical dispute’ between the parties which was referred for determination.
In the MAC, the Medical Assessor under “Present symptoms” wrote:
“Ms Elsaidy complains of constant severe pain at the right shoulder.
She has stiffness at the right shoulder and the right arm becomes swollen and painful on and off. One year after the injury, Ms Elsaidy developed pain and stiffness the left shoulder attributed by her to over usage compensating for the right shoulder injury. The neck has intermittent pain on waking up and after a day’s activity. The neck pain radiates up the back of the head and to the right shoulder girdle and whole of the right arm.”
In the MAC, the Medical Assessor under “Findings on Physical Examination” wrote: “The left shoulder has symptoms of pain and range of motion restrictions from over usage compensating for the right shoulder impairment and it could not be the basis for adjusting the right shoulder impairments”. The Medical Assessor did not provide a range of motion restrictions for the left shoulder.
In the ARD under “injury details”, Ms Elsaidy “…alleges she sustained soft tissue injury to her neck, shoulders, and back…” Under “Permanent Impairment/Pain and Suffering” she claimed 16% WPI in respect of the right upper extremity and cervical spine.
Ms Elsaidy based her claim for permanent impairment compensation on the assessment of Dr Bodel in his report dated 19 August 2022. Dr Bodel noted that she had sustained injuries to right shoulder, neck and both arms. He reported that on 6 January 2021 she fell forward while travellig on an escalator and landed on her outstretched arms. He noted that she had continuing pain at the base of the neck and over the top of both shoulders but the right was worse than the left. On page 5, Dr Bodel wrote:
“Ms Elsaidy had a trip and fall event on an escalator at her workplace at the UTS, on 06 January 2021. She fell on her outstretched hands and jarred her neck and shoulders and her back. Most areas have settled but she still has neck and right shoulder girdle pain and a ganglion on the volar surface of the left wrist”.
Dr Bodel provided an assessment of 0% WPI for the left upper extremity but that assessment related to the left wrist and hand. In response to a question about likely future treatment needs, Dr Bodel wrote:
“She does require further treatment including rest and analgesic medication and physiotherapy. She may require further injections of cortisone into the subacromial space of each shoulder as there is evidence of bursitis at least in both shoulders and probably a partial thickness tear in the rotator cuff in the right shoulder and surgery is still a distinct possibility in the right shoulder but this has not been done and she is not keen to do it, as I understand it.”
In a report dated 28 August 2021, Dr Con Kafataris, Injury Management Consultant, noted under “Mechanism of Injury” that “The worker developed left and right shoulder injuries in a fall at work”.
Page 453 of AMA 5 at 16.4c provides:
“The measurements reported in the impairment tables and pie charts reflect the accepted average active range(s) of motion for each joint. However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities.
If a contralateral “normal” joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report.”
Page 2 of AMA 5 at paragraph 1.2 defined “normal” as:
“a range or zone representing healthy functioning and varies with age, gender, and other factors such as environmental conditions…Multiple factors need to be considered when assessing whether a specific or overall function is normal. A normal value can be defined from an individual or population perspective.
…
When evaluation an individual, a physician has two options: consider the individual’s healthy preinjury or preillness state or the condition of the unaffected side as ‘normal’ for the individual if this is known, or compare that individual to a normal value defined by population averages of healthy people. The Guides use both approaches. …In other circumstances, for example where population values are not available, the physician should use clinical judgment regarding normal structure and function and estimate what is normal for the individual based on the physician’s knowledge or estimate of the individual’s preinjury or preillness condition.”
The Appeal Panel agree that the left shoulder was not the subject of a “valid claim” for permanent impairment compensation made by Ms Elsaidy and that the allegation of a consequential left shoulder condition was neither made by Ms Elsaidy , nor determined by the appellant.
The appellant submitted that the Medical Assessor fell into demonstrable error in concluding Ms Elsaidy presented with “symptoms of pain and range of motion restriction” from “over usage compensating for the right shoulder” because in reaching this conclusion, he made a finding on causation and injury which was not open to him under the terms of the referral which was limited to a claim for permanent impairment compensation in respect of the right upper extremity and the cervical spine/neck.
The Appeal Panel did not consider that the Medical Assessor made a finding on causation and injury that was not open to him under the terms of the referral. The Medical Assessor only assessed impairment in the right shoulder and cervical spine. The findings in relation to the left shoulder were only relevant to the question of whether the left shoulder should be used as a baseline in the assessment of impairment in the right shoulder. The Medical Assessor found that Ms Elsaidy had pain and stiffness in the left shoulder. Regardless of the cause of that pain and stiffness, it was not appropriate for the left shoulder measurements to be used as a baseline in the assessment of impairment in the right shoulder where the Medical Assessor did not regard the left shouder as being “normal”.
Having admitted fresh evidence in this matter, the Appeal Panel considered that it was necessary for Ms Elsaidy to undergo a further medical examinationin order.
As noted above, Medical Assessor Roger Pillemer re-examined the appellant on
5 February 2024. Medical Assessor Pillemer provided the following report:
“1. The workers medical history, where it differs from previous records.
I read Ms Elsaidy the history that she gave to Dr S K Cyril Wong on 22 September 2023 and she confirmed that this history was correct, and she does say that at the moment she does feel very slightly better.
As far as treatment is concerned, Ms Elsaidy informs me that she continues to take Mobic, Panadol Osteo and Tramadol, and uses Voltaren cream.
She informs me that arrangements are being made for her to see a pain specialist and she has also started seeing a psychologist.
2. Additional history since the original Medical Assessment Certificate was performed.
Ms Elsaidy’s main concern is with her right shoulder and upper arm where she has constant pain with symptoms ranging between 5-8/10. She still gets neck discomfort a few times a week but this is not really a problem for her and it also worries when she is sleeping or after activities such as rehabilitation.
She also gets numbness in her right arm two to three times a week which can last for up to 15 minutes at a time.
Her symptoms are aggravated by most activities using her right arm and when she was doing her rehabilitation and her gym, or carrying out any forced movements. She cannot sleep on her right side. She does get relief by resting and using heat packs, and taking her tablets.
As mentioned she does feel her neck is ‘a little bit better’ and her shoulder region has not improved.
As far as her limitations are concerned, she can walk for an hour to an hour and a half, and she can still drive but not for too long. She lives at home with her two sons and what would normally take her an hour of housework would now take her a few hours. She uses the vacuum with her left arm and cannot clean windows with her right arm.
When she goes shopping she will not carry anything heavy on the right side.
She manages with her self-care but sometimes her sons have to ‘help at the back’, and she manages her hair with her left hand and sometimes gets the hairdresser to come to her.
On direct questioning she does not have any particular problems with activities at bench top level such as typing or using her mobile phone, but she is simply unable to lift anything heavy on the right side.
1. Findings on clinical examination
Ms Elsaidy is a shorter than average adult female with a mild increase in her body mass index with a very straight forward and open presentation.
She has a full range of cervical movement today with only mild discomfort on rotation, and has a full range of left shoulder movement.
She does however have a restricted range of right shoulder movement.
Right Shoulder Movements

Movement

Range

Flexion

90°

Extension

30°

Abduction

90°

Adduction

40°

Internal rotation

70°

External rotation

70°

Please note that at the end of the consultation I pointed out to Ms Elsaidy that her range of movement on the surveillance report showed a far greater range than she exhibited today, and she gave me numerous explanations for this.
Firstly, she has been told to use her arm otherwise she would ‘lose it’. She feels when she takes her tablets that these certainly help and that ‘some days are better than others’.
She says when she is in public she tries to ‘hide it – hold the pain’, and at other times she will ‘force myself’.
I then asked her to elevate her right arm using her left hand to do this, and she was able to elevate to 150° but with significant discomfort.
Reflexes are present and equal, and importantly good grip strength was present bilaterally.
2. Results of any additional investigations since the original Medical Assessment Certificate
Ms Elsaidy has not had any further investigations carried out.”

The Appeal Panel has adopted the report and findings of Medical Assessor Pillemer. The Appeal Panel noted that Medical Assessor Pillemer considered that Ms Elsaidy presented on re-examination in a very straight forward and open fashion. Medical Assessor Pillemer found that with encouragement and using a passive range of movement with her left arm,
Ms Elsaidy was able to get to 150° of elevation.
The range of movements in the right shoulder resulted in the following assessment by the Appel Panel of upper extremity impairment:
“ Right Shoulder Movements

Movement	Range	% Upper extremity impairment
Flexion	90°	6
Extension	30°	1
Abduction	90°	4”
Adduction	40°	0
Internal rotation	70°	1
External rotation	70°	0
Total	12%

Therefore, the Appeal Panel finds that Ms Elsaidy is entitled to 12% upper extremity impairment for the reduced range of shoulder movement, which in turn equates with 7% WPI. The Appeal Panel combines this with the 5% WPI asseement of the cervical spine which results in a total of 12% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
26 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W6100/23
Applicant:	Nadine Chaar Elsaidy
Respondent:	MSS Security Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor S K Cyril Wong and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Right upper extremity	6/01/2021	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	7%	Nil	7%
2. Cervical spine	6/01/2021	Chapter 4 Page 24-29	Chapter 15 Page 392 Table 15-5	5%	Nil	5%
Total % WPI (the Combined Table values of all sub-totals)					12%

[2024] NSWPICMP 152

15 March 2024