Philip Leong Stores Pty Ltd v Ngo
[2025] NSWPICMP 692
•9 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Philip Leong Stores Pty Ltd v Ngo [2025] NSWPICMP 692 |
| APPELLANT: | Philip Leong Stores Pty Ltd |
| RESPONDENT: | Phi Ngo |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 9 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); claim by employer that Medical Assessor (MA) erred by applying the contralateral provisions of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) (Chapter 16.4) and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (Chapter 2.20) as his finding was based on a consequential condition that had not been alleged; Held – MA doing no more than he was required to by the terms of both guidelines; causation a legitimate finding in these circumstances; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd applied; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 May 2025 Philip Leong Stores Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 April 2025.
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):
· 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 6 February 2025, this matter was referred for a WPI assessment of injury to the right upper extremity (shoulder), right lower extremity (knee), lumbar spine and cervical spine, which occurred on a deemed date of 7 July 2021.
Mr Ngo had arrived in Australia from Vietnam in 1992 and had been employed by the appellant/employer since October 2011. His duties were as a picker/packer and forklift driver and during the course of his employment, he developed problems with his right knee, his neck and his right shoulder.
There was an incident that aggravated his right knee symptoms in 2016 or 2017, and the pain in his neck, right shoulder, right knee, and lower back worsened as he continued to work until on 7 July 2021, he was unable to continue, his employment due to his symptoms
He underwent an arthroscopic procedure on the right shoulder on 4 October 2022.
The Medical Assessor found a combined table value of 17% WPI, which consisted of 6% for the right shoulder, 5% for the lumbar spine and 7% for the cervical spine. No impairment was found with regard to the right knee.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error was established by the appellant/employer.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered below by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The issue raised on appeal related to the assessment of the right upper extremity (shoulder).
The MAC
The Medical Assessor took a consistent history of the onset of Mr Ngo's symptoms in the referred anatomical areas of the body. In considering Mr Ngo's present symptoms regarding the right shoulder, the Medical Assessor said:[1]
· “Burning pain at night and in the morning, especially when sleeping on the right side for too long, pain will wake him up
· Pain can be severe, rated 6-7/10
· Pain is felt through the whole shoulder, front and back
· Right shoulder surgery in 2022 helped initially, but pain has since returned and is
· now worse than prior to surgery
· Left shoulder pain has developed since the surgery due to overuse.” (emphasis added)
[1] Appeal papers page 26.
The Medical Assessor made a number of findings on physical examination, including both the right and left shoulder.[2]
[2] Appeal papers page 29.
At [7] he summarised the history. He said relevantly:[3]
“He underwent right shoulder surgery in 2022 which provided some initial relief but symptoms have since returned and are now worse than prior to surgery. He also has developed left shoulder pain from overuse.” (Emphasis added)
[3] Appeal papers page 30.
In giving his comments as to other evidence before him at [10c] the Medical Assessor:[4]
“The clinical assessment is also similar to Dr Haig; However I have deemed the left shoulder as not normal and therefore unable to compare side-to-side….”
Submissions
[4] Appeal papers page 32.
The appellant employer submitted that the Medical Assessor had erred by providing an opinion on injury and causation. This constituted, it was argued, both incorrect criteria and a demonstrable error.
We were referred to the assessment by the appellant's expert, Dr Bodel. Chapters 16.4 and 2.20 were referred to, and kindly reproduced.
Reference was also made to the s 78 Notice dated 25 July 2024 and its reliance on the appellant employer's expert Dr Haig. Dr Haig's report of 8 July 2024 had only found impairment in the cervical spine. Dr Haig measured of both shoulders and did not record complaints related to the left shoulder.[5] It noted that Dr Haig said:
“In terms of the right shoulder there is no loss of range of motion compared to the contralateral (unaffected) side and hence, there is 0% WPI.”
[5] Appeal papers page 595.
The appellant/employer also referred to assessments by Dr James Bodel, the expert qualified by Mr Ngo, submitting that neither he nor Dr Haig disclosed any evidence of loss of motion of the uninjured left shoulder.
We were referred to the findings by the Medical Assessor, in respect of which the appellant employer acknowledged that the Medical Assessor had found there to be a left shoulder that was not normal.
In doing so, it was submitted, the Medical Assessor had “gone beyond the scope of his powers,” as that finding was an opinion regarding injury and causation.
No claim had been made regarding the left shoulder, it was argued, and it was not the subject of the medical referral.
The finding that the left shoulder had been “injured” as a consequential condition to the injury to the right shoulder had impacted on the methodology applied and, as we understood the submission, was impermissible. It was submitted that the Medical Assessor should have used the same methodology as had been applied by both qualified medical experts, and measured the contralateral joint on the basis that it had been uninjured. Accordingly, the assessment should have been 1%, calculated by deducting from the 6% WPI restriction in motion to the right shoulder the 5% WPI range of motion measured for the uninjured left shoulder.
Respondent
Mr Ngo submitted that the appellant employer's submissions were misconceived, as they demonstrated a misunderstanding of the methodology required by AMA 5 and the Guidelines.
We were referred to Chapter 16.4 C of AMA 5, and the requirement that the contralateral joint be a normal joint in order to employ the methodology therein set out.
Mr Ngo submitted that the reference to a “normal” contralateral joint was critical, as its purpose was to allow the Medical Assessor to assume that the condition of the injured joint would be the same as the contralateral uninjured joint but for the injury, and consistent with the expected age-related or genetic deterioration in both joints.
Mr Ngo submitted further than an uninvolved contralateral joint, whilst not being one of the body parts referred for assessment, may nonetheless not be “normal.” This was for a number of reasons, amongst which Mr Ngo said that the contralateral joint may have been injured prior to the subject injury and carry an impairment therefrom; or it may have been subject to a peculiar constitutional abnormality in that joint; or it may have been injured after the subject injury to the involved joint.
In any of those cases, it was argued, the measurement of the uninvolved joint as a baseline would be illogical and would not reflect the true extent to which the injured joint has been impaired as a result of the subject injury.
Mr Ngo submitted that the requirement for an Medical Assessor to explain the rationale for employing the guideline was there because otherwise its application would result in an adverse assessment of the true degree of the work-related impairment of the involved injured joint.
Mr Ngo submitted that the Medical Assessor had explained why he had not employed the guideline, including that the left shoulder condition had developed since the surgery which occurred as restated on 4 October 2022.
That conclusion, Mr Ngo submitted, was open on the evidence and indeed was the only conclusion that was available on the evidence. There was no evidence that prior to the deemed date of injury, 7 July 2021, Mr Ngo had any symptoms or dysfunction affecting his left shoulder.
Mr Ngo pointed out that he had not made any complaints about his left shoulder during the 10 years of performing demanding physical tasks and that therefore he could not conceivably have had the limited range of motion in the left shoulder at the date of injury that was later found in 2024.
Mr Ngo referred to the surgery of 4 October 2022, and that Mr Ngo post-operatively had his right arm in a - which, he argued, would have the tendency to increase the use of the contralateral left upper limb.
It followed, Mr Ngo said, that the right shoulder impairment was directly attributable to the injury of 7 July 2021. This, it was argued, had the effect of excluding the suggestion that there was an underlying constitutional conditioning affecting both upper extremities. Indeed, Mr Ngo said, there was no evidence of either that or any pre-injury symptoms or limitation of movement in the left shoulder.
Mr Ngo referred to clinical notes. They showed, he said, that as of 16 May 2024 his GP found (following an MRI of the left shoulder prompted by left shoulder complaints) that there was osteoarthritis present, together with rotator cuff tendinopathy with a small tear. The record showed that there was subsequently a suggestion there was likely an injury to the left shoulder secondary to overuse.
The suggestion that the Medical Assessor had determined that the left shoulder had an injury was misconceived, it was submitted. The Medical Assessor had confined his assessment to the terms of the referral and in complying with the terms it became necessary to consider whether the contralateral joint was normal or not.
This was, it was submitted, the only conclusion that could be reached on the undisputed evidence of late onset of left shoulder symptoms and dysfunction.
Discussion
Chapter 16.4c of AMA 5 provides:
“If a contralateral ‘normal’ joint has a 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.”
Chapter 2.20 of the guides provides similarly:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joints in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor's report (see AMA 5 section 16.4c, p543.)”
The appellant employer submitted not that the Medical Assessor had applied the wrong methodology, but that by applying the correct methodology, he had gone beyond the remit of the referral and provided an opinion on injury and causation. The left shoulder had not been the subject of the referral and indeed no claim had ever been made, but the Medical Assessor had, by finding that the range of movement in the contralateral left shoulder was not normal or uninjured, made a demonstrable error. The mischief done by such an approach, it was submitted, was that his finding impacted on his assessment as he had thereby given a benefit to Mr Ngo in effect of 5% WPI.
This would have had the result, we note, of reducing the 17% WPI assessment to 13% - with obvious implications for any work injury damages claim.
The difficulty with that submission is that the Medical Assessor was doing no more than complying with the methodology set out in the guidelines that he was required to apply. It is clear that no claim had been made for the left shoulder injury, but it is incorrect to submit that the incidental benefit accruing to Mr Ngo involved a finding of injury.
The finding went no further than to indicate that the methodology set out by Chapter 2.20 of the Guides and Chapter 16.4 of AMA 5 was applied.
The Medical Assessor explained that the range of movement in Mr Ngo's contralateral left shoulder could not be used because it was not normal or uninjured. He was required by the terms of the Guidelines to make that comparison, and it was within his clinical judgment, experience and expertise to do so.
As was pointed out by Mr Ngo, the evidence was before him that enabled him to reach that conclusion, notwithstanding it was within the function he was required to carry out.
In the oft-quoted decision of Wingfoot Australia Partners Pty Ltd v Kocak[6] the function of a Medical Assessor is described as being neither to choose between competing argents nor to opine on the correctness of other opinions on the medical question before him but to form and give his own opinion on the medical question referred to him by applying his own medical experience and his own medical expertise.
[6] [2013] HCA 43; 252 CLR 480; which applies also to the function of Medical Assessors see eg Western Sydney Local Health District v Chan 2015 NSW SC16 1968 at [13].
Matters of causation are accepted as being within the function of a Medical Assessor[7] and the appellant employer was accordingly incorrect, with respect, to claim that an opinion on causation was beyond the scope of a Medical Assessor's powers.
[7] See Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264.
We would note that the Medical Assessor did not give an opinion about injury. Although he attributed the restriction in motion in the left shoulder to overuse as a result of the surgery to the right shoulder, his purpose was to explain his rationale, as he was required to do.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 April 2025 should be confirmed.
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