Programmed Skilled Workforce Ltd v Farrar

DETERMINATION OF APPEAL PANEL
CITATION:	Programmed Skilled Workforce Ltd v Farrar [2024] NSWPICMP 789
APPELLANT:	Programmed Skilled Workforce Limited
RESPONDENT:	Catherine Farrar
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	22 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred because no deduction was made for any previous injury or pre-existing abnormality or condition; the MA did not set out in the statement of reasons or the Medical Assessment Certificate (MAC), the actual ranges of motion that were measured by him and he did not adequately explain the modification of the findings to arrive at the impairment of 11% for the right upper extremity, and failed to apply clause 1.36 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, 1 March 2021 to modify the findings on examination of the cervical spine in the face of observed inconsistencies; the Medical Appeal Panel agreed with some of the appellant’s submissions; re-examination; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 July 2024 Programmed Skilled Workforce Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr James Bodel, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 June 2024.
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, 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).

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 the worker should undergo a further medical examination because we concluded that the Medical Assessor erred in the manner in which he made his assessments with respect to the cervical spine and the right upper extremity, particularly having regard to some noted inconsistencies.

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 Mark Burns of the Appeal Panel conducted an examination of the worker on
13 November 2024 and reported to the Appeal Panel.

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 erred as follows:
(a)    no deduction was made for any previous injury or pre-existing abnormality or condition;
(b)    the Medical Assessor did not set out in the SOR or the MAC, the actual ranges of motion that were measured by him and he did not adequately explain the modification of the findings to arrive at the impairment of 11% for the right upper extremity, and
(c)    the Medical Assessor failed to apply cl 1.36 to modify the findings on examination of the cervical spine in the face of observed inconsistencies.
In reply, the respondent submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of WPI in respect of the cervical spine and the right upper extremity (right shoulder, right elbow, right wrist) resulting from a deemed date of injury of 30 March 2022.
The Medical Assessor obtained the following history:
“I have referred to the claimant’s three and a half page signed Statement from
28 November 2023. She confirms that she obtained work through Programmed Skilled Workforce on 30 March 2022 and started work that afternoon at 2.00pm at Goodman Fielder.
Initially, she worked on a line which was packing slices of garlic bread which was quite fast and repetitive. She worked on a conveyor line with her head in a bent forward position.
She took a break after about three hours and was then transferred to a different section of the garlic bread line, where the garlic bread is packaged in plastic wrap. She had to perform quality assurance as the packaged product went past her on a conveyor system. She had to determine whether there is any gas inside and if there was, it has to be rejected. She did that for about three hours, again with her head in a bent forward position.
At about 9.30pm, she had been told that they would be finishing up at 10.00pm. She told her supervisor that she was developing increasing neck pain, right shoulder and arm pain, but the supervisor ‘was dismissive.’
About 10-15 minutes later, at about 9:40 9:45pm, she felt ‘an intrusive pain in my neck and pain in my entire right arm. I was very overwhelmed and stressed by the pain and this was making me shake and feel very dizzy. I was worried that I may be having a seizure.
The claimant has a past history of epilepsy which was diagnosed many years ago. She has been on Tegretol for the management of this but to the best of her recollection and her husband’s recollection, the last definitive seizure that she had was in 2006.
Ms Farrar indicates that some of the symptoms that she felt at that time were similar to seizures that she has mentioned in the past. She was, however, conscious throughout, which is unusual, and she did experience numbness and tingling down the right arm, but she has never had pain with a seizure before and she had severe pain on this occasion.
There was some concern that she had a fall at some stage. She states that that was not the case. She went and sat down and then eventually lay down because of the severity of her pain.
An ambulance was called as she just couldn’t see clearly and she was shaking, terrified and in severe pain. She was transported by ambulance to the Liverpool Hospital just after midnight. She was kept for observation till the morning and discharged.
No seizure was observed during her stay at Liverpool Hospital, although she did “shake violently” after the onset of the pain at the workplace.
She sought treatment from her treating neurologist, Dr Watson whom she had seen for many years and he did various investigations and tests, including an MRI scan of the cervical spine showing evidence of disc pathology in this region, but no apparent spinal cord or nerve root compromise. Dr Watson was of the view that this episode was not typical of a seizure for her and felt that it was more likely a stress-related matter and a panic attack.
She stopped driving a motor vehicle after this episode until Dr Watson re-assured her that it was safe for her to drive.
Dr Watson has not recommended any change in her medication. She is taking Panamax for the management of the pain
A CT scan of the neck shows disc pathology but she has not been referred to a spinal specialist to have this assessed because the insurer has denied liability.
She describes the pain in the arm as ‘like a toothache,’ the pain extends down the whole of the right arm but mainly to the thumb and Panamax seems to relieve the pain. Dr Watson has nothing further to offer.
Up until 21 November 2023, she had not had the opportunity to return to any form of work, but her husband found her a position at a chemical warehouse where he also works. The company processes chemicals mainly used in agriculture and she did this work for about 12 months. She was doing process work and bottling chemical compounds but unfortunately there has been a downturn in the work available and she has been stood down.
There has been no further accident or injury, but she still has pain in the neck, right shoulder and arm, the right elbow, wrist and hand pain.”
The Medical Assessor then set out details of Ms Farrar’s present treatment, symptoms, general health and the impact of her injuries on her social activities and activities of daily living (ADL’s), and said:
“She is not engaged in particular sports or hobby activities, although she does enjoy an outdoor lifestyle and walking.
She does hold a driver licence and has now returned to driving her car.”
When asked to provide: “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor said: “She suffers with epilepsy. In the past she did have a left arm injury when she fell off a step at a previous place of employment, working in an orange juice factory, and that settled with conservative care.”
Findings on examination were reported as follows:
“Ms Farrar is 57 years of age. She is 150cm tall and weighs 76kg. She is right-handed.
She is anxious in her manner and she rises from the chair slowly.
Careful measurement of the arm above the elbow and the arm below the elbow on the right side is 0.75cm greater in circumference above the elbow and 0.5 cm greater in circumference below the elbow on the right side when compared to the left.
She actively holds her right arm in a semi-flexed position and gentle palpation of the arm muscles above the elbow and in the forearm show that there is active muscle contraction in both agonist and antagonist muscle groups. On the left-hand side there is no increased muscle tone in the extensor or flexor surface of the forearm.
She complains of tenderness in the trapezius muscle at the base of the neck on both sides. There is evidence of guarding on the right side. She has a reduced range of neck flexion, extension and rotation in all directions and this is grossly restricted in all directions, and there is an active restriction to no more than about 20% of the expected range of rotation to the right or left, or up and down in flexion or extension.
At a later stage, when she was redressing, I noticed 50% range of motion to the left and right while putting on her puffer jacket.
She also had a grossly restricted range of shoulder movement, elbow and wrist movement on the right-hand side. At a later stage again, when redressing, she put her good arm (her left arm) into the jacket initially and then with some help she was able to demonstrate a better range of shoulder, elbow, wrist and hand movement on the right-hand side to put the injured arm back into the puffer jacket.
The recorded ranges of movement therefore do not accurately reflect the true active range of motion that is available in the right upper limb and they exhibit significant inconsistency. The lack of wasting on the dominant right arm also is inconsistent with the grossly restricted range of movement that she presents with.
I am aware of the inconsistency presentation directive in the Guidelines at Item 1.36. This is an extract from page 19 of AMA5 and reads as follows:
‘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 Assessor 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.’
I have done this to the best of my ability here today, and the ranges of motion that I have recorded in the tables which follow are greater than the observed ranges of motion at the time of formal testing with the goniometer, and they reflect a greater observed range of motion when she was redressing at the end of the examination.
I am satisfied that there is a genuine restriction of shoulder, elbow, wrist and hand movement on the right-hand side, but the range of movement which was allowed to occur actively at the time of the assessment is less than is the true range of active movement in this circumstance.
The reflexes are present and equal and there is no neurological abnormality in the upper limbs.”
The Medical Assessor then said:
“Unfortunately, there are no x-rays or other tests available for review today.
There are multiple reports of various investigations in the documentation provided, but none of the hard copy films or digital copies of the films on CD or in an app on the phone have been available for me to review.”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“The claimant has suffered a soft tissue injury to the neck, a probable rotator cuff injury to the region of the right shoulder, mild lateral epicondylitis in the region of the right elbow, and a soft tissue injury to the region of the right wrist as a result of the incident that occurred at work on 30 March 2022.
He added:
“As I have indicated above, there are inconsistencies in the clinical presentation and I have referred to the directions in the Guidelines as to how to deal with this.
I am satisfied that the recorded findings that I have recorded accurately reflects the true active range of motion that is available in this circumstance.”
The Medical Assessor assessed a total 17% WPI, being 7% for the cervical spine and 11% for the right upper extremity.
He explained his calculations as follows:
“The claimant has a DRE Cervical Category II level of assessable impairment in accordance with the description in Table 15-5 on page 392 of AMA5. There is asymmetry of movement and guarding but no clinical sign of radiculopathy. There is a 5% base rating for this category.
Her Activities of Daily Living have been moderately compromised and in accordance with Item 4.34 and Item 4.35 on page 28 of the 4^th Edition Guidelines, giving a 2% loading and a 7% Whole Person Impairment because of interference in sport and leisure activities, and household maintenance and cleaning activities.
As I have indicated above, the recorded restricted shoulder, elbow and wrist movement is slightly greater than that obtained during formal assessment because of the inconsistency that I have referred to above.
The rateable range of motion for the shoulder is assessed using Figure 16-40 on page 476, Figure 16-43 on page 477 and Figure 16-46 on page 479. The elbow is assessed using Figure 16-34 on page 472 and Figure 16-37 on page 474. The wrist is assessed using Figure 16-28 on page 467 and Figure 16-31 on page 469.
There is a 13% Upper Extremity Impairment for the shoulder, a 2% Upper Extremity Impairment for the elbow, and a 5% Upper Extremity Impairment for the wrist. These are combined in descending order (13, 5 and 2) to give a 19% Upper Extremity Impairment using the Combined Value Charts on page 604 of AMA5. The 19% Upper Extremity Impairment becomes an 11% Whole Person Impairment using Table 16-3 on page 459.
The two ratings are combined (11% and 7%) using the Combined Value Charts on Page 604 of AMA5.
The claimant has a 17% Whole Person Impairment in this case.
There is no indication clinically that there is any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment.”
He then documented in some detail the other medical opinions and evidence. We do not intend to set this out in detail at this point, but we will refer to it where relevant in our determination.

The appellant’s submissions

These are as follows:
(a)    The Medical Assessor failed to take a correct history of a previous injury, pre-existing condition or abnormality in respect of the right upper extremity and the cervical spine.
(b)    The history obtained by the Medical Assessor in respect of “previous or subsequent accidents, injuries or conditions” omitted an injury to the right elbow following a fall at the gym onto her right side on 4 January 2021. The clinical note entry for that date from Dr Akram Moussad is recorded as follows: ‘had a fall at the gym, landed on right side right, elbow ache, Blacktown ED reviewed, right elbow old fracture, still has some swelling, good range of motion.’
(c)    The worker returned to see Dr Moussad on 14 January 2021 and his clinical note for that day recorded the following: “right elbow pain, swelling improving, ROM improving, analgesia, home exercise explained, physiotherapy [sic] referral.”
(d)    The Medical Assessor did not refer to this evidence of a prior incident and prior pain and swelling of the right elbow. He also did not refer to the right elbow fracture history recorded in the clinical note. It is not possible in such circumstances to be confident that the Medical Assessor considered whether there was any contribution to the current impairment of the right upper extremity by a past injury, condition or abnormality to/in the right elbow.
(e)    It follows that the Medical Assessor failed to consider evidence which demonstrated the existence of a previous injury or pre-existing condition or abnormality in both the right upper extremity and the cervical spine.
(f)    The Medical Assessor also failed to consider the evidence of pre-existing degenerative changes and stenosis in the cervical spine.
(g)    Following the subject injury on 30 March 2022, the worker was referred for a CT scan of the cervical spine. This was not referred to by the Medical Assessor, nor was it considered in respect of the statutory task pursuant to s 323.
(h)    The CT scan dated 7 April 2022, taken one week after the subject injury, demonstrates degenerative processes and foraminal stenosis, which must be considered to be pre-existing because the injury only occurred one week prior to the CT scan.
(i)    The Medical Assessor expressed the view that “at most, she has aggravated some underlying degenerative changes in the neck and the rotator cuff” and that this aggravation “has led to her ongoing symptoms”, yet he did not consider evidence of the underlying degenerative changes in the neck in the context of s 323 and made no deduction for any pre-existing condition.
(j)    Even if he considered that there ought to be no deduction made, the Medical Assessor was obliged to explain and provide reasons for this conclusion.
(k)    All the Medical Assessor said by way of explanation was that “There is no indication clinically that there is any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment.”
(l)    The Medical Assessor failed to provide adequate reasons and failed to explain why he assessed 13% UEI for the right shoulder, 2% UEI for the right elbow and 5% UEI for the right wrist in the context of observed inconsistencies.
(m)     The Medical Assessor noted “significant inconsistencies” between how the worker presented and his observations of her while getting re-dressed. He applied cl 1.36 which permits him to modify the recorded findings. However, he has not provided the recorded findings and has not explained how he has modified those findings.
(n)    This is particularly problematic because the Medical Assessor reported that “the recorded ranges of movement” “exhibited significant inconsistency” but at page 7 of the MAC, he stated that the recorded restricted shoulder, elbow and wrist movement is “slightly greater” than that “obtained during formal assessment”. This in itself is an inadequate explanation because it is internally inconsistent.
(o)    Even if this final impairment assessment of the right upper extremity is based on clinical skill and judgement or the Medical Assessor’s intuition, the Medical Assessor is still required to provide an explanation and to expose his process of reasoning so it can be determined whether there is an error.
(p)    The Medical Assessor also failed to modify the findings on examination in respect of the cervical spine by applying cl 1.36 of the Guidelines in the face of observed inconsistencies. The Medical Assessor reported at page 5 of the MAC that there was a difference in the range of motion of the neck to the left and right. On examination he reported no more than 20% of the expected range of rotation to the right or left, but later when the worker was re-dressing, he observed 50% range of motion to the left and right.
(q)    The Medical Assessor did not modify the assessment, in the face of this inconsistency, and did not explain why he did not apply cl 1.36.

The respondent’s submissions

These are as follows:
(a)    The evidence of the injury on is recorded in a clinical note dated 4 January 2021, and indicates trivial symptoms.
(b)    The clinical notes of Dr Moussad do not, following the above entry, refer again to any complaints in relation to the worker’s right elbow resulting from the fall at gym in January 2021. Subsequent consultations concern complaints entirely unrelated to her right elbow, thus confirming complete recovery from the minor complaints noted in January 2021.
(c)    There is an absence of any forensic opinion as to the contribution of pre-existing factors to the impairment of the worker’s cervical spine in the wake of the subject injury.
(d)    The appellant submits that the Medical Assessor “has not provided the recorded findings and has not explains how he has modified those findings” That complaint can be readily and expeditiously addressed by referring the matter back to the Medical Assessor to enable him to provide his recorded findings and his explanation as to how he modified those findings.
(e)    The appellant does not present any medico-legal case of its own as to the relevant DRE category applicable to the worker’s condition.
(f)    The appellant makes out no case that the inconsistencies observed by the Medical Assessor are such as to require modification of the applicable DRE category from II to I.
(g)    Clinical judgment by a Medical Assessor of a worker as they present on the date of assessment is of material relevance.

Discussion

The Panel agreed with the thrust of the appellant’s submissions particularly given the absence of reasons by the Medical Assessor in the context of some noted inconsistencies.
Medical Assessor Burns of the Panel re-examined Ms Farrar on 13 November 2024 and reported to us as follows:
“1.The workers medical history, where it differs from previous records.
Mrs Farrar attended with her husband, Mr Wayne Farrar.
I read the history obtained by the Medical Assessor on 7 June 2024. Mrs Farrar confirmed the history as reported and did not recommend any changes.
2.Additional history since the original Medical Assessment Certificate was performed.
Mrs Farrar reported that there had been no change since she was assessed in June 2024. She reports having ongoing pain and discomfort, mostly in the right side of her cervical spine radiating down into her right arm. She states that that there is pain over the right shoulder, elbow and wrist regions.
Current symptoms:
She reported marked stiffness in her neck, especially on the right hand side. The pain was mostly right sided but occasionally also included the left side of her neck. She stated that the pain was constant. Associated with the neck pain there was radiation down towards her right shoulder. She also reported pain over the anterior, lateral and posterior aspects of the right shoulder as well as in the right elbow and right wrist.
Associated with the pain in her right arm she reported stiffness in all regions as well as a degree of weakness through the entire right arm.
Current treatment:
She reported that she is not seeing any GP on a regular basis for her neck and arm pain. She is currently not attending physiotherapy or other treatment. She continues to take Panamax tablets and has mostly ceased doing her exercise at home. She is not having any formalised physiotherapy.
3.Findings on clinical examination
Cervical spine:
Examination of the cervical spine reported tenderness over the right paravertebral muscles with a degree of muscle guarding. There was no evidence of muscle spasm. Flexion and extension were markedly decreased with one third predicted in both. They were symmetrical. Rotation to the left was markedly less than rotation to the right. Lateral tilt to the right was slightly less than to the left side. All ranges of movement were decreased due to reported pain.
Neurological examination of both upper limbs revealed slightly less power in a global basis in the right arm. This appeared though to be associated with pain. Tone in both upper limbs was normal. Reflexes were normal in both sides including the biceps, triceps and brachioradialis reflexes. Sensation was reported as being symmetrical and normal in both upper limbs.
The circumference of the right upper arm was 37.5cms and equal to the left side. The circumference of the right forearm was 31.5cms compared to 31cms on the left. There was no evidence of muscle atrophy.
Upper extremity:
Examination of both shoulders revealed no evidence of tenderness on the left side but global tenderness on the right side. Active range of movement in both shoulders was measured on multiple occasions. Mrs Farrar was initially reluctant to move her shoulder in all planes due to reported significant pain. After repeated attempts I believe that the range of movement found in her right shoulder and left shoulder was the best she could do on the day. Active range of movement both shoulders was measured using a goniometer.
She confirmed that she had never injured either shoulder before the injury at work on 30 March 2022 to her right shoulder only.
Examination of both elbows revealed no evidence of localised tenderness. There was no tenderness anteriorly or superiorly or over either lateral or medial epicondyle. Active range of movement in both elbows was measured using a goniometer.
On the right side she was initially reluctant to move her elbow fully but after several attempts she was able to have a normal active range of movement. At the end of the examination of the right elbow she reported that she was developing some global numbness over the palmar aspect of the right forearm. This was not consistent with the distribution of any peripheral nerve.
Examination of both wrists revealed mild tenderness over the right side but no tenderness over the left side. She was initially reluctant to move the right wrist at all but with multiple testing she did eventually get to a reasonable range of movement. Active range of movement was measured using a goniometer.
Mrs Farrar was noted to make a fist on both sides, which was equal and pain free. She was also noted to have negative provocation tests for medial or lateral epicondylitis in the right arm. She also a negative Tinel’s sign in the right elbow for ulna neuritis and a negative Tinel’s sign in the right wrist for Carpel tunnel syndrome.
At the end of the examination she reported that she had tension down her entire right arm, which goes up into her neck. She feels that this tension is present all the time.
Discussion:
Following my review of her documentation as well as the history I obtained from Mrs Farrar and her physical examination I believe that the following diagnoses are appropriate.
·    Aggravation of pre-existing cervical spondylosis. Her CT scan of the cervical spine completed on 7 April 2022 (8 days after her injury) revealed disc osteophyte complexes at C4/5 and C5/6 potentially irritating the transverse nerve roots in the spinal cord. At C4/5 there was a right foraminal stenosis potentially impinging the exiting right C5 nerve root and at C5/6 there was right foraminal stenosis potentially impinging the exiting nerve root at C6. Even though Mrs Farrar reported no previous pain or discomfort in the neck there is evidence of pre-existing degenerative change, which was significant.
·    With respect to the right shoulder she has aggravated pre-existing rotator cuff injury in the shoulder. I note that an ultrasound of her right shoulder on 25 May 2022 revealed a focal full thickness supraspinatus tear, partial subscapularis tear, subacromial bursitis and impingement, and AC arthrosis. These conditions would certainly have pre-existed the injury on 30 March 2022 but would have been aggravated by the work she was doing for that single shift. She reports being asymptomatic in the right shoulder before the one shift but her investigations reveal pre-existing degenerative change and pre-existing rotator cuff injuries. These may have been asymptomatic but the pathology was already present.
·    With respect to her right wrist I believe that the De Quervain’s tenosynovitis may have developed due to the repetitive nature of her work on 30 March 2022. This diagnosis is confirmed by an ultrasound of her right wrist on 24 June 2022, which revealed a moderately marked De Quervain’s tenosynovitis with thickening of the tendon sheath of APL and EPB. There is no objective evidence that these changes were pre-existing.
From the documentation it appears that no investigations have been carried out of her right elbow. I could find no documentation supporting investigations of the elbow and Mrs Farrar was unable to remember any investigations being done.
Conclusion:
Cervical spine:
Mrs Farrar aggravated pre-existing cervical spondylosis during her workday on 30 March 2022. From Table 15-5 of AMA 5 her cervical spine would be classified as DRE Category 11 or 5% whole person impairment. On discussion she reported restrictions in activities around the house but was able to carry out her own self-care. I believe a further 2% whole person impairment should be added to the 5% whole person impairment to give 7% whole person impairment. Taking account of her CT scan findings about 8 days after the injury I believe that she did have pre-existing degenerative change. I believe a one tenth deduction would be appropriate. This would give her 6% whole person impairment.
Right upper extremity
Whilst Mrs Farrar was reluctant to move her right arm including her shoulder, elbow and wrist with multiple attempts she was eventually able to have a reasonable range of movement. I believe that the range of movement, especially in her shoulder and wrist was consistent with her underlying pathology in those areas.
With respect to her right shoulder the range of movement found from Figures 16-40, 43 and 46 would give 11% upper extremity impairment. I note though that in her left shoulder she did have some mild decrease in range of movement in flexion, abduction and adduction. Whilst she reported that her left shoulder was asymptomatic there was certainly a decrease in range of movement. This decrease would give 4% upper extremity impairment in the left shoulder. As I have used the left shoulder as a baseline, I believe that to make a deduction for a pre-existing injury or condition would be double dipping. I therefore have made no deduction.
With respect to the right elbow, I noted that after she had multiple attempts at movement, especially in flexion that her range of movement was normal. It was also equal to range of movement in the left elbow. From Figures 16-34 and 37 she would have 0% upper extremity impairment for range of movement in the right elbow.
With respect to her right wrist I note that from Figures 16-28 and 31 that she would have a 5% upper extremity impairment for decreased range in flexion, radial deviation and ulnar deviation. Her left wrist range of movement was normal. With respect to the right wrist there is no objective evidence of a pre-existing injury or condition.
A combination of 7% upper extremity for the shoulder with 5% upper extremity for the wrist and 0% upper extremity for the elbow would give 12% upper extremity impairment. This would be converted to 7% whole person impairment.
Finally, a combination of 7% whole person impairment for the right upper extremity with 6% whole person impairment for the cervical spine would give 13% whole person impairment.”
The Panel agrees with the detailed examination, findings and assessments made by
Medical Assessor Burns, and his explanation as to how he calculated the impairments.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 June 2024 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:	W1605/24
Applicant:	Catherine Farrar
Respondent:	Programmed Skilled Workforce Limited

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 James Bodel 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. Cervical spine	30 March 2022 (deemed)	Chapter 4	DRE Cervical Category II, Table 15-5, Page 392 of AMA5	7%	1/10th	6%
2. Right Upper Extremity (right shoulder, right elbow and right wrist)	30 March 2022 (deemed)	Chapter 2	Figure 16-40, Page 476 Figure 16-43, Page 477 Figure 16-46, Page 479 Figure 16-34, Page 472 Figure 16-37, Page 474 Figure 16-28, Page 467 Figure 16-31, Page 469	7%	Nil	7%
Total % WPI (the Combined Table values of all sub-totals)					13%

[2024] NSWPICMP 789

22 November 2024