Nair v Westwise Recruitment Pty Limited
[2021] NSWPICMP 242
•20 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nair v Westwise Recruitment Pty Limited [2021] NSWPICMP 242 |
| APPELLANT: | Ramendra Nair |
| RESPONDENT: | Westwise Recruitment Pty Limited |
| APPEAL PANEL: | Member William Dalley Dr Drew Dixon Dr Tommasino Mastroianni |
| DATE OF DECISION: | 20 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Error alleged; Medical Assessor (MA) noted substantial variation in range of motion in right shoulder from previous measurements in evidence and assessed the worker by averaging his measurements upon examination with other earlier measurements in evidence; Held - averaging of earlier ranges of motion with current measurements was not considered to be an appropriate exercise of clinical skill and judgement and did not represent assessment of the condition at the time of examination (NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (Guidelines) 1.6); error established and worker re-examined; the parties noted that the referral to the MA had failed to include scarring which had formed part of the claim in part of the medical dispute; the parties agreed that the referral should be amended with the assessment to be determined by the Appeal Panel; observations on re-examination agreed with the assessment of the respective independent medical experts and scarring assessed in accordance with Table 14.1 of the Guidelines. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 April 2021, Ramendra Nair 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 31 March 2021.
The appellant relies on the following grounds of appeal under section 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 grounds 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 section 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).
RELEVANT FACTUAL BACKGROUND
The appellant, Mr Nair, was employed as a process worker by the respondent, Westwise Recruitment Pty Ltd. On 6 August 2018 Mr Nair was working at a business, “Actron Air”, when he suffered an injury to his left shoulder (the subject injury).
Mr Nair consulted his general practitioner and was diagnosed as having a partial thickness tear of the supraspinatus tendon and sub deltoid bursitis. The symptoms were not alleviated by cortisone injections and physiotherapy and Mr Nair was referred to an orthopaedic surgeon, Dr Duckworth.
Dr Duckworth performed an arthroscopy on the left shoulder on 8 November 2018, carrying out a supraspinatus tendon repair, biceps tenodesis and removal of a subacromial spur.
Mr Nair continued to have symptoms in the left arm and was referred to a pain specialist. He continued to see Dr Duckworth and further cortisone injections were undertaken. He continued with physiotherapy but started to develop painful symptoms in the right shoulder.
On 19 March 2019 Mr Nair was examined by a surgeon, Dr Lai, to assess Mr Nair for the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987. Upon examination Dr Lai concluded that Mr Nair had not, at that time, reached maximum medical improvement.
Dr Lai again examined Mr Nair on 5 November 2019. On that occasion he assessed Mr Nair as having 11% whole person impairment (WPI) in respect of the left shoulder and 4% WPI in respect of the right shoulder. Dr Lai assessed a further 1% WPI in respect of scarring to give a total of 16% WPI as a result of the subject injury.
Mr Nair’s legal advisers made a claim for lump-sum compensation in accordance with Dr Lai’s assessment. The insurer denied liability for the right shoulder, disputing that any condition in the right shoulder resulted from the subject injury.
Mr Nair was assessed by an orthopaedic surgeon, Dr Quain, at the request of the insurer on 11 February 2020. Dr Quain assessed Mr Nair as suffering 9% WPI in respect of the left shoulder and 1% WPI in respect of scarring. Dr Quain did not assess the right shoulder, having been informed by the insurer that liability for the right shoulder had been denied. Dr Quain did note that the right shoulder was “essentially normal”.
The medical dispute was subject of a determination by a Commission Arbitrator who determined that the alleged right shoulder condition resulted from the subject injury. The dispute was then referred for assessment to the Medical Assessor. The Medical Assessor examined Mr Nair on 15 March 2021.
The Medical Assessor assessed Mr Nair as suffering 11% WPI in respect of the left shoulder and 7% WPI in respect of the right shoulder. The Medical Assessor reduced the assessment of the left shoulder by one fifth and the right shoulder by one half pursuant to section 323 of the 1998 Act, in respect of pre-existing conditions in the respective shoulders.
Upon publication of the MAC it was realised that the referral to the Medical Assessor had failed to include scarring which the parties agreed had formed part of the claim and hence part of the medical dispute. An amended referral was issued by the delegate of the President to include the scarring but the Medical Assessor was not requested to reconsider his assessment, that task being left to the Panel.
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.
As a result of that preliminary review the Appeal Panel determined that the worker should undergo a further medical examination as the available material concerning range of motion in the shoulders varied and the Panel considered it appropriate to conduct its own assessment.
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
Dr Drew Dixon of the Appeal Panel conducted an examination of the worker on 8 November 2021 and reported to the Appeal Panel as follows:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | 6319/20 |
| Appellant: | Ramendra Nair |
| Respondent: | Westwise Recruitment Pty Limited |
| Date of Determination: | 5 February 2021 |
| Examination Conducted By: | Dr DREW DIXON |
| Date of Examination: | 8 November 2021 |
1. The workers medical history, where it differs from previous records
The medical history does not differ from the previous records. His general health has been satisfactory. He was working as a process worker in an air conditioning factory and he injured his left shoulder and subsequently required arthroscopic review and subsequently developed adhesive capsulitis, for which he had cortisone injections. He subsequently developed shoulder brachalgia due to over reliance on the shoulder while favouring the left.
2. Additional history since the original Medical Assessment Certificate was performed
There was no additional history provided.
3. Findings on clinical examination
On examination on 8 November 2021 he was 5’6” tall and weighed 97kg.
He had mild stiffness of his cervical spine with flexion and extension decreased by one third as was lateral rotation to the right and left and lateral flexion to the right and left decreased by one third. There was tenderness of the trapezius muscle on the left and upper trapezius muscle on the right and tenderness of the vertebra prominens spinous process. There was no neurological deficit of either upper limb. His reflexes were present and there was no objective sensory loss in his left hand. His intrinsic power, thenar power and grip strength were grade 5 out of 5 bilaterally.
There was wasting of left forearm measuring 28cm, 10cm below the elbow, compared with 27cm on the right.
There was restriction on elevation of his shoulders more marked on the left. Active abduction on the left was 90 degrees with forward flexion 120 degrees with extension 40 degrees, adduction 20 degrees, external rotation 60 degrees and internal rotation 50 degrees. Shoulder girdle power on the left was grade 4 out of 5 and there was tenderness at the AC joint and in the biceps groove and tenderness over the pectoralis muscle and anterolateral deltoid and trapezius muscle. There was 1cm of wasting of his left upper arm. There was impingement on abduction and he had difficulty taking off his shirt and putting it back on. There was mild stiffness of the right shoulder with flexion 140 degrees, extension 40 degrees, internal rotation 70 degrees, external rotation 70 degrees, abduction 120 degrees and adduction 40 degrees. There was tenderness of the upper trapezius muscle on the right.There was a 4cm anterior mini open arthrotomy scar which showed keloid formation and showed colour contrast and was readily localised by the claimant and was tender to percussion. The scar is readily visible with summer clothing such as a singlet and he remains conscious of the scar which he can readily localise. His arthroscopic portals posteriorly in the left shoulder have healed well.
He reports he tries to do exercises at home with therabands and a pulley to maintain some strength in his arm and has difficulty with overhead exercises.
4. Results of any additional investigations since the original Medical Assessment Certificate
Since the original assessment, nil.”
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.
In summary, the appellant submits that the Medical Assessor adopted a process of assessment contrary to the Guidelines. The appellant further submitted that the Medical Assessor had not provided adequate reasons for deducting one half of the assessment in respect of the right shoulder and one fifth in respect of the left shoulder. A further ground alleged that the Medical Assessor had failed to assess scarring.
The respondent submitted that the Medical Assessor was entitled to have regard to the opinion of other practitioners when exercising his clinical judgement. The respondent further submitted that the Medical Assessor had provided clear reasons for the deductions made pursuant to section 323 of the 1998 Act and those reasons accorded with the evidence. The respondent noted that the Medical Assessor had appropriately not assessed scarring because this item had not been referred.
Ultimately the parties agreed that the referral had omitted the item of scarring although it had clearly formed part of the claim and the respective independent medical experts had both agreed that there was 1% WPI in respect of scarring resulting from the subject injury.
FINDINGS AND REASONS
The procedures on appeal are contained in section 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 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.
Assessment in Accordance with the Guidelines.
[1] [2006] NSWCA 284.
The Medical Assessor performed a physical examination of Mr Nair. He assessed range of motion in the left and right shoulders as follows:
Movement
Right
Left
Flexion
140°
40°
Extension
10°
20°
Abduction
90°
40°
Adduction
10°
0°
Internal rotation
0°
0°
External rotation
20°
0°
The Medical Assessor recorded:
“Unfortunately, there is a lot of inconsistency in Mr Nair’s case. I have no doubt that he was doing his best to be helpful although his recollection of significant pre-existing conditions of both shoulders is very limited.
His range of movement of both shoulders at this assessment was the worst that has ever been recorded. Bearing in mind that there has been no further injury or significant condition to either shoulder for well over a year this begs the question as to why the range of movement should be so restricted at this assessment.”.
The Medical Assessor assessed the left shoulder as giving rise to 9% WPI and the right shoulder to 4% WPI. He explained his assessment:
“The impairment assessment of both shoulders arises from the restricted range of movement. At this assessment, this was recorded as the greatest restriction of movement recorded in the extensive file since the arthroscopic procedure to the left shoulder by Dr David Duckworth in November 2018. As already suggested, this begs the question as to why this should be. At this assessment, I was not convinced that the recorded range of movement of each shoulder accurately represents the realistic picture. I have therefore taken all of the recorded ranges of movement from the file from March 2019 to March 2021 (four records) and have averaged these in an attempt to achieve as accurate and fair an assessment as possible for Mr Nair. Where the figures do not give a range of movement the nearest 10° this is interpolated to Mr Nair’s favour so that the subsequent whole person impairment is also calculated to his benefit.”.
The Panel accepts that the ground of appeal with respect to the method of assessment adopted by the Medical Assessor has been made out.
It is clear from the MAC that the Medical Assessor did not accept his measurement of the various ranges of motion as an accurate assessment of the level of impairment. Paragraph 1.6 of the Guidelines provides:
“The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
·whether the condition has reached Maximum Medical Improvement (MMI)
·whether the claimant’s compensable injury/condition has resulted in an impairment
·whether the resultant impairment is permanent
·the degree of permanent impairment that results from the injury
·the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.”.
Paragraph 1.36 of the Guidelines provides:
“AMA5 (p 19) states ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assess or must use their entire range of clinical skill and judgement when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assess or may modify the impairment rating accordingly and then describe and explain the reasons for the modification in writing’ this paragraph applies to an inconsistent presentation only.”
It is not apparent from the MAC whether, on the day of examination, Mr Nair displayed inconsistent ranges of motion upon repetition at examination or whether the Medical Assessor simply relied on the lack of consistency between his observations and the earlier assessments.
The Guidelines require the exercise of clinical skill and judgement. The Panel does not accept that the averaging of earlier assessments represents that exercise. To the extent that there may be thought to be inconsistency in the respective ranges of motion measured by the Medical Assessor, the same may be true of earlier assessments.
The Panel is satisfied that averaging the range of motion measurements with those taken on earlier occasions does not represent “clinical assessment of the claimant as they present on the day of assessment”.
The Medical Assessor is required to assess an injured worker in accordance with the Guidelines[2]. The assessment by the Medical Assessor has not been carried out in accordance with the Guidelines and the Panel is satisfied that this ground of appeal is made out.
[2] 1998 Act, section 322 (1).
Error having been established, the Panel is required to review the evidence in order to assess the degree of impairment which is the subject of the medical dispute between the parties. The parties agree that the referral to the Medical Assessor should have included scarring as part of the medical dispute and it is appropriate that the Panel include assessment of scarring to the extent that it results from the subject injury.[3]
Reassessment of the left upper extremity and right upper extremity.
[3] Skates v Hills Industries Ltd [2021] NSWCA 142.
The report of the Medical Assessor member of the panel, Dr Dixon, who conducted the re-examination of Mr Nair on 8 November 2021, records the range of motion of the left and right shoulders measured in accordance with the Guidelines. Those ranges of motion compared with are set out in the report above and can be summarised, together with normal range of motion, as follows:
Movement
Right
Left
Normal
Flexion
140° (3)
120° (4)
180°
Extension
40° (1)
40° (1)
50°
Abduction
120° (3)
90° (4)
180°
Adduction
40° (0)
20° (1)
50°
Internal rotation
70° (1)
50° (2)
90°
External rotation
70° (0)
60° (0)
90°
Total upper extremity impairment
8% UEI
12% UEI
The figures in brackets represent the extent of upper extremity impairment (UEI) determined in accordance with Figures 16-38, 16-41 and 16-42 of AMA 5.
The Panel is satisfied that the respective ranges of motion assessed by Dr Dixon are reasonably consistent with earlier assessments and represent a reasonably accurate assessment of the relevant ranges of motion. Pursuant to Table 16-3, 12% UEI converts to 7% WPI and 8% UEI converts to 5% WPI.
Pre-existing condition, abnormality or previous injury
The Panel notes the history of pre-existing injury to both shoulders. The subject injury occurred 6 August 2018. The MAC sets out a number of earlier incidents which resulted in relevant injuries. It appears that in May 2011 Mr Nair suffered a dislocation of the left shoulder. In January 2012 the general practitioner, Dr Heang, appears to have recorded a further dislocation which had occurred on 28 November 2011[4].
[4] Reply, page 8.
In his supplementary statement, Mr Nair confirms that he suffered an injury in November 2011 but said that he did not recall any injury to his left shoulder. However, the medical records, including the report of Dr Heang and that of the orthopaedic surgeon, Dr Maniam[5], establish that Mr Nair was suffering painful symptoms in his left shoulder at that time. Dr Maniam recorded that an MRI scan showed: “acromioclavicular joint degeneration with inferior spurs, antero-inferior acromial spurs, bursal sided partial thickness tear of the supraspinatus and antero-inferior glenoid labral tear consistent with a Bankart lesion”[6]. Dr Maniam proposed surgery (decompression of the subacromial space and repair of the Bankart lesion[7]).
[5] Reply, page 9.
[6] The MRI report is in evidence at page 186 of the Reply.
[7] Reply, page 282.
An item in the notes of the Wentworthville General Practice on 30 November 2011 records “c/o R left shoulder injury dislocation last Sunday (3 days ago) due to slipped and fell onto bath tap and one of his friend relocated for him. Also left side of neck pain.” The general practitioner recorded that there was no previous history of left shoulder injury. An x-ray was reported as “not significant” Mr Nair was referred to the orthopaedic surgeon at that time. A note on 14 March 2012 records that Mr Nair wished to return to work on pre-injury duties:
“as he said left shoulder was fine, no pain, 100% normal. Had this left shoulder injury on November 2011 and saw Dr Maniam, the last visit with Dr Maniam was last week and he was told to see the LMO to give him med cert to be fit to return to his normal work. Left shoulder non-tender.”
The general practitioner recorded that he had confirmed with Dr Maniam that Mr Nair was fit to return to work.
On 1 November 2016 the general practitioner records “right sided shoulder pain-unable to move in all direction for last 4 – 6 weeks – gradually getting worse – works as a forklift driver – need to lift heavy things.” The general practitioner recorded “likely rotator cuff pathology/supraspinatus tendinitis”. The general practitioner noted “if nil improvement in two weeks/worsening symptoms – US shoulder.” Dr Hague referred Mr Nair for physiotherapy.[8]
[8] Reply, page 45.
On 3 November 2016 the general practitioner recorded: “had MVA about 2 months ago… Would like to go back to normal duty. Does weightlifting. Nil chest pain, nil SOB”. The general practitioner recorded a normal range of movement in the shoulders. Those observations are confirmed in a medical certificate issued by Dr Dewan on that date.[9]
[9] Reply, page 42.
The next entry concerning the right shoulder is a record of a discharge note from Blacktown Hospital on 7 September 2017 which noted “right grade 3 ACJ separation” with complaint of ongoing shoulder pain. On 8 September 2017 Mr Nair is noted as having been seen at hospital with a “grad 3 AC joint diasthesis” following an assault. On 13 September 2017 the general practitioner has recorded “he has grad 3 AC joint injury – right shoulder”. An x-ray report on 19 September 2017 showed evidence of “2 cm of superior displacement of the outer aspect of the right clavicle at the AC joint with AC joint ligament disruption.[10]”
[10] Reply, page 163.
On 9 October 2017 the general practitioner has recorded “persisting pain under orthopaedic specialist at Blacktown Hospital” and notes prescription of Endone.
On 4 December 2017 a general practitioner has recorded “persisting R shoulder pain. Awaiting ? surgery after MRI at Blacktown Hospital”[11].
[11] Reply, page 39.
On 3 April 2018 there is a record of complaint of “right shoulder pain – h/o right AC joint ligament disruption, caused dislocation – he said awaiting for surgery – Dr Sartor”. On 13 April 2018 Mr Nair apparently sought a Centrelink certificate. One of the general practitioners has recorded “there is no recent imaging evidence that AC joint dislocation [sic] – explained it is not a permanent condition so Dr Shimul Das certificate is wright [sic] it is a temporary condition – see Dr Das.”.
On 25 July 2018 Dr Singh[12] recorded one to two weeks of left shoulder pain with no identifiable cause. The record states that on examination of the left shoulder there was “limitation to movement in all directions.” A later entry dated 10 August 2018 [13] records that the entry on 25 July 2018 should have referred to the right shoulder. The entry on 7 August 2018 noting “right rotator cuff issues” is corrected to refer to the left shoulder.
[12] Application to Resolve a Dispute (ADR), page 36.
[13] ARD, page 35.
Although the general practitioner notes subsequently state that it was the right arm that was complained of on 25 July 2018, an x-ray on that date was carried out on the left shoulder showing no fractures or dislocations.
At surgery on 8 November 2018 Dr Duckworth observed:
“Identification was made of a frayed biceps tendon which was released. The articular surface of the cuff appeared to be intact. The arthroscope was then introduced subacromial Lee and a large spur was identified and removed with a burr. A deltoid split was performed and dissection was made down to the biceps. This was tendered east using a narthex button. There was a degenerate delaminated supraspinatus tear. The tendon was not of great quality. It measured 2 cm x 3 cm.”.
Mr Nair’s supplementary statement also refers to symptoms in the right shoulder experienced in October 2016 and described as a “pinching sensation”. He attributed this to heavy lifting at his then workplace. He said he was advised to rest and underwent physiotherapy. After a few days resting he said the pain went away and he had no difficulty with heavy lifting after that time.
Mr Nair also referred to an assault that he suffered on 7 September 2017 when he said he had been punched on the right side of the chest. He said this did not lead to any symptoms in his right shoulder. This incident had no impact upon his capacity to work. On 13 September 2017 he said he had suffered right shoulder pain which she attributed to his posture while sleeping. He said the pain lasted only a few days. He again suffered right shoulder pain in April 2018 which he said his general practitioner attributed to “high cholesterol”.
Mr Nair said that on occasions his general practitioner had confused left and right shoulders but acknowledged that he had prior episodes of right and left shoulder pain.
In his supplementary statement Mr Nair noted that he had been able to continue heavy manual employment despite shoulder symptoms.
In a letter to Dr Lai, Mr Nair’s solicitors summarised the relevant medical history as follows:
“• 30 November 2011-left shoulder dislocated when he fell a bath tap (page 127 of ARD)
• 12 December 2011 – kept left shoulder under arm sling (page 127 of ARD)
• 29 January 2012 – left shoulder still in pain
• 14 March 2012 – wasn’t (sic) left shoulder medical certificate clearance to go back to work. Fit for preinjury duties. ‘No pain, 100% normal’ (page 125 of the ARD)
• 1 November 2016 – Right shoulder pain (page 117)
• 3 April 2018-‘right shoulder pain’ ‘said he had before no problem’ (page 113)
• 6 August 2018 – Date of injury to left shoulder.
• 7 August 2018 – Right rotator cuff issues. This was corrected to “left shoulder” on page 110 (see GP’s note) ‘using right arm only’.
• Also in the GP report on page 26 of the ARD there is reference to being assaulted by his neighbour on 7/09/2017. This also needs to be addressed in the supplementary statement.”
That history omits the effects of the assault in September 2017 that plainly caused pathology in the right shoulder with symptoms continuing into 2018.
Dr Maniam supplied a further report confirming his opinion with respect to causation of the right shoulder condition but did not comment on the issue of previous injury or pre-existing condition or abnormality.
On the basis that evidence the Panel accepts that, prior to the subject injury, there was a pre-existing condition in both the left shoulder and the right shoulder. In the left shoulder it appears that there was an injury in November 2011 and there is also reference to an earlier injury in May of that year. This resulted in a referral to an orthopaedic surgeon, Dr Maniam, and the condition of the shoulder is shown in the report of the MRI.
There was onset of right shoulder pain in 2016, the cause of which is uncertain. In September 2017 Mr Nair suffered injury to his right shoulder. That pain was ongoing in December 2017 and was noted again in April 2018.
Section 323 of the 1998 Act provides:
“323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note : So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The Panel accepts that there were pre-existing conditions in both the left and right shoulders prior to the subject injury. The MRI scan in respect of the left shoulder and the x-ray following the assault in September 2017 involving the right shoulder establish that these were conditions which are likely to contribute to the degree of impairment assessed upon examination of the shoulders.
Although surgery involving the left shoulder was recommended in early 2012 by Dr Maniam, that surgery did not prove necessary and Mr Nair was able to undertake manual labouring jobs without evidence of further problems.
The evidence as to which shoulder was the subject of complaint in July 2018 (predating the subject injury) is unclear. Dr Singh recorded the complaint at that time as related to the left shoulder. An x-ray of the left shoulder was requested and carried out. It is difficult to imagine Mr Nair submitting to an x-ray examination of the left shoulder when it was the right shoulder which was the subject of his complaint. Although a different general practitioner in the same practice subsequently recorded that the complaint in July 2018 was in respect of the right shoulder, the Panel has difficulty in accepting this and prefers the contemporaneous record including the x-ray of the left shoulder. Nevertheless, it appears that Mr Nair was able to continue to perform his normal work tasks which involved frequent use of the arms[14]
[14] Suitable Duties Plan, Reply page 307 and 314.
The condition of the right shoulder following the incident in September 2017 also does not appear to have prevented Mr Nair from carrying out his normal work tasks.
Given the limited treatment following complaints of symptoms in the right and left shoulders prior to the subject injury and having regard to the limited imaging it is difficult to assess to what extent the pre-existing conditions in both the left and right shoulders contributed to the overall level of impairment assessed upon re-examination. The Panel accepts that Mr Nair appears to have made a recovery from his earlier complaints of shoulder symptoms and had the ability to perform reasonably heavy manual labouring tasks at the time of his injury. The Panel considers that a deduction of one tenth is not at odds with the available evidence.
Accordingly, in respect of impairment in the left and right upper extremities, the Panel is satisfied that it is appropriate to deduct one tenth in respect of pre-existing conditions in the respective shoulders.
Accordingly, the assessment of impairment in respect of the left upper extremity (shoulder) is reduced from 7% WPI to 6% WPI after rounding. The assessment of 5% WPI in respect of the right upper extremity (shoulder) remains at 5% WPI after rounding up.
Assessment of scarring.
Upon re-examination, Dr Dixon observed:
“There was a 4cm anterior mini open arthrotomy scar which showed keloid formation and showed colour contrast and was readily localised by the claimant and was tender to percussion. The scar is readily visible with summer clothing such as a singlet and he remains conscious of the scar which he can readily localise. His arthroscopic portals posteriorly in the left shoulder have healed well.”.
Those observations are consistent with the observations made by Dr Lai[15] and Dr Quain[16] and are accepted by the Panel.
[15] Dr Lai report ARD, page 42.
[16] Dr Quain report, Reply, page 20.
As noted by Dr Lai and Dr Quain, that description of the scarring is consistent with assessment of 1% WPI in accordance with Table 14.1 of the Guidelines.
The total impairment resulting from injury is accordingly assessed by the Panel as 12% WPI, comprising 6% WPI in respect of the left upper extremity, 5% WPI in respect of the right upper extremity and 1% WPI in respect of scarring.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 March 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 section 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) |
| 1. Left upper extremity (shoulder) | 6/08/18 | Chapter 2, 2.14 | Chapter 16 Fig 16-40 (page 476), 16-42 (page 477), 16-46 (page 479) and 16-03 (page 439) | 7% | 1/10 | 6% |
| 2. Right upper extremity (shoulder) | 6/08/18 | Chapter 2, 2.14 | Chapter 16 Fig 16-40 (page 476), 16-42 (page 477), 16-46 (page 479) and 16-03 (page 439) | 5% | 1/10 | 5% |
| 3. Scarring (TEMSKI) | 6/08/18 | Chapter 14, Table 14.1 | 1% | nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
Mr William Dalley
Member
Dr Drew Dixon
Medical Assessor
Dr Tommasino Mastroianni
Medical Assessor
20 December 2021
0
2
0