Quinton v Mid Western Regional Council

DETERMINATION OF APPEAL PANEL
CITATION:	Quinton v Mid Western Regional Council [2024] NSWPICMP 253
APPELLANT:	Thomas Quinton
RESPONDENT:	Mid Western Regional Council
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	30 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether deduction Medical Assessor (MA) made of one third under section 323(1) was an error; whether MA provided adequate reasons for deduction he made; whether MA adequately explained why he did not assume in accordance with section 323(2) that the deductible proportion is one tenth; Appeal Panel held that MA did not make an error and adequately explained his reasons for not applying section 323(2) and adequately explained his reasons for making a deduction under section 323(1) of one third; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 February 2023 Thomas Quinton, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 January 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 (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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment as a diesel mechanic with Midwestern Regional Council in November 2018. On 9 April 2019 he was repairing a connection between a hose and a large container of oil. That required him to undo a brass coupling, which necessitated his using his right hand well above his shoulder height. While doing that, he felt his right shoulder snap and crack. There is no dispute between the parties that the appellant injured his right shoulder in this event.
The appellant also contended that subsequent to injuring his right shoulder, as a consequence of overusing his left shoulder and neck because of his right shoulder injury, he developed conditions in his left shoulder and cervical spine.
Relying on a report of orthopedic surgeon Dr James Bodel dated 20 January 2023, who had assessed the appellant had 21% WPI from his injury, which included impairment relating to the consequential conditions to the appellant’s cervical spine and left shoulder, the appellant made a claim for compensation for permanent impairment from the injury he suffered on 9 April 2019.
The respondent's insurer in a notice dated 21 February 2023, issued under s 78 of the 1998 Act, advised the appellant that it disputed it was liable to pay compensation to him for permanent impairment from his injury. It advised him this was because it disputed his right shoulder injury had caused any condition to his left shoulder and cervical spine. It advised him that it considered that the degree of his permanent impairment relating to his right shoulder injury did not exceed the statutory threshold imposed by s 66(1) of the Workers Compensation Act 1987 for him to be entitled to compensation for permanent impairment. It advised him that it relied on a report of orthopaedic surgeon Dr John Bosanquet dated 4 April 2023, who had most recently examined the appellant on 28 March 2023 at the request of the respondent's insurer.
The appellant then commenced proceedings in the Personal Injury Commission (Commission), seeking determination of his claim for compensation for permanent impairment from his injury. The matter was referred to a Member of the Commission, namely Ms Rachel Homan. Following a contested hearing between the parties on 27 September 2023, Member Homan determined on 11 December 2023 that the appellant had suffered a consequential condition to his left shoulder as a result of the injury to his right shoulder on 9 April 2019. She also found that the appellant did not suffer a consequential condition to his cervical spine. She consequently entered an award for the respondent with respect to the appellant's allegation of a consequential condition to his cervical spine. She then remitted the matter to the President of the Commission to refer it to a Medical Assessor to assess the medical dispute between the parties relating to the degree of the appellant's permanent impairment from his injury to his right shoulder including the consequential condition to his left shoulder.
On 9 January 2024, a delegate of the President of the Commission duly issued a referral to the Medical Assessor. The medical disputes that were referred to the Medical Assessor to assess were defined in that referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
      the degree of permanent impairment of the worker as a result of an injury (s319(c))
      whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
      whether impairment is permanent (s319(f))
      whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury:                 9 April 2019
Body part/s referred:       Right upper extremity (shoulder) Left upper extremity
(shoulder) – consequential
Method of assessment: Whole Person Impairment”
The Medical Assessor examined the appellant on 19 January 2024 to conduct that assessment and, as mentioned at the outset, issued a MAC in response to the referral on 29 January 2024. In that he certified he assessed the appellant had 9% WPI relating to his right upper extremity and 10% WPI relating to his left upper extremity. He made that assessment by reference to the restricted range of motion the appellant has in his shoulders. No issue has been taken in the appeal with the Medical Assessor using that method of assessment nor has any issue been taken with the Medical Assessor assessment of the appellant’s impairment as a consequence of the restricted range of movement he has in his shoulders.
The issue that has been raised in the appeal is the deduction the Medical Assessor made under s 323(1) of the 1998 Act for the proportion of the appellant's permanent impairment from his injury that the Medical Assessor considered was due to a pre-existing condition. Relevant to that issue the Medical Assessor recorded that the appellant did not have any previous injuries to either of his shoulders. The Medical Assessor also noted that a MRI scan that was done of the appellant’s right shoulder on 17 May 2019 was reported to demonstrate established glenohumeral osteoarthritis with subchondral cysts and geodes and a chronic SLAP lesion. The Medical Assessor also noted that a MRI scan was done of the appellant's left shoulder on 22 February 2022 that was reported to reveal mild left acromio-clavicular joint arthritis in conjunction with moderate glenohumeral arthritis, but with an intact rotor cuff.
The Medical Assessor considered that the appellant's injury to his right shoulder was an aggravation of a SLAP tear and glenohumeral arthritis in his right shoulder. The Medical Assessor noted that the appellant had surgical debridement and biceps tenodesis to treat that injury. The Medical Assessor further noted that the appellant subsequently developed symptoms in his left shoulder.
The Medical Assessor identified that the appellant had a pre-existing condition of glenohumeral osteoarthritis in his right shoulder and left shoulder. The Medical Assessor said that that condition contributed to the appellant's whole person impairment (WPI). The Medical Assessor explained he came to this view because the appellant's ongoing pain and restriction in both shoulders represented an aggravation of significant pre-existing glenohumeral osteoarthritis and that, absent that pathology, it is unlikely that the appellant's work injury would have led to any significant impairment.
Because the Medical Assessor considered a proportion of the appellant's permanent impairment was due to the pre-existing condition he identified in the appellant's right and left shoulders, the Medical Assessor was required to make a deduction under s 323(1) of the 1998 Act for the proportion of the appellant's permanent impairment from his injury that was due to that pre-existing condition. Section 323(2) of the 1998 Act requires a Medical Assessor to assume that the deduction to be made under s 323(1) is 10% if it would be too difficult or costly to determine what the proportion is, provided making that assumption is not at odds with the available evidence.
In this case, the Medical Assessor explained that the extent of the deduction to be made under s 323(1) was difficult or costly to determine but he said the available evidence is that the deductible proportion is large and that making a deduction of 1/10th would be at odds with that evidence. His explanation for that was, in substance, that absent the pre-existing glenohumeral osteoarthritis in the appellant's shoulders it is unlikely that the injury the appellant suffered would have led to any significant impairment. The Medical Assessor considered that the deductible proportion for s 323(1) should be 1/3, and when he made that deduction he assessed the appellant's permanent impairment from the injury to his right shoulder was 6% WPI and from the consequential condition to his left shoulder was 7% WPI, which combined to 13% WPI. He certified that was he degree of the appellant's permanent impairment from his injury.

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 appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which he relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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.

SUBMISSIONS

Both parties made written submissions. They have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions, to provide a summary of them, they are that the Medical Assessor gave no reasons for why he concluded there was a significant pre-existing glenohumeral osteoarthritis and that this failure to give reasons is a demonstrable error.
The appellant highlighted that the evidence before the Medical Assessor did not reveal that he had restriction or pain in his shoulders prior to being injured. The appellant submitted that the incident in which he suffered injury caused a large labral tear that required surgery. The appellant highlighted that his treating surgeon, Dr Haren Nandapalan considered that the SLAP lesion revealed in the MRI of 17 May 2019 was caused by his injury and that this lesion was the cause of his symptoms. The appellant also highlighted that Dr Bosanquet in a report of 28 October 2021 expressed the view that the injury to his right shoulder on 9 April 2019 had resulted in a large lateral tear and some underlying chondral loss in the glenoid and humeral head.
The appellant submitted that the Medical Assessor provided no explanation for how the MRI scan of his left shoulder established he had a condition in his left shoulder prior to 19 April 2019. The appellant submitted that it is probable that most if not all of the arthritis in his left shoulder occurred after 19 April 2019, given the nature of the injury he suffered on 19 April 2019.
The appellant submitted that the Medical Assessor did not explain how it is that the pre-existing condition contributes to his present impairment. The appellant submitted that the Medical Assessor did not explain how the arthritis contributes to the restriction of his movement which is the basis of his permanent impairment. The appellant highlighted that the condition was present before his injury and it was not then restricting his movement and the appellant submitted that as a matter of logic, the presence of the osteoarthritis of itself does not cause a restriction of movement.
The appellant submitted that the Medical Assessor failed to consider whether s 323(2) applied and also failed to give any explanation for why he concluded that the deduction under s 323(1) should be 1/3. The appellant submitted that the Medical Assessor simply made an educated guess regarding the deduction he made and did not consider whether the extent of the deduction was difficult to determine.
The appellant submitted that making an assumption under s 323(2) that the deduction is 10% was not at odds with the available evidence. The appellant highlighted that the available medical evidence was the MRI scan which “demonstrated some arthritis that may have predated the injury to some extent” but this was not producing any restriction or needing treatment before the injury. The appellant submitted that there was no evidence that without the injury the condition in his shoulders would have remained symptom free to the current time.
The appendant submitted that the Medical Assessor applied the wrong test when determining what deductions should be made under s 323(1) of the 1998 Act in that the Medical Assessor did not consider whether the pre-existing condition caused his impairment from his injury to be more serious than otherwise would have been the case. The appellant submitted that the Medical Assessor considered whether his pre-injury condition made him more vulnerable to injury, and this is not the basis upon which a deduction under s 323(1) should be made. The appellant submitted that the Medical Assessor was required to consider not whether the pre-existing condition resulted or contributed to the occurrence of the injury, but rather whether a proportion of his current impairment is due to the pre-existing condition and if so the extent of that.
Paraphrasing the respondent’s submissions to provide a summary of them they are that the fact that a pre-existing condition was asymptomatic at the time of injury does not mean that a proportion of permanent impairment from an injury cannot be due to it. The respondent referred to Matthew Hall Pty Ltd v Smart[2] as authority for that.
[2] [2000] NSWCA 284.
The respondent referred to the findings from the MRI of the appellant's right shoulder done on 17 May 2019 and of his left shoulder on 22 February 2022, parts of the report of Dr Bosanquet dated 4 April 2023, parts of the reports that Dr Nandapalan and Dr Khatib, who is also an orthopedic surgeon who treated the appellant, and part of a report of Dr Paul Hitchen, who is an orthopaedic surgeon who provided a forensic medical report to the respondent's insurer dated 15 July 2019, to support the Medical Assessor’s finding that the appellant had pre-existing disease in his shoulders. The respondent submitted that when the MAC is read as a whole, without traipsing through the words of it with a fine tooth comb, that the Medical Assessor gave adequate reasons for making the deduction he did under s 323(1) of the 1998 Act for the proportion of the appellant's permanent impairment that was due to his pre-existing condition.

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.
The appellant prior to his injury had experienced no symptoms in his shoulders. However, as the Medical Assessor found, the appellant did have pre-existing degenerative changes in both shoulders at the time he suffered his injury on 19 April 2019. This is demonstrated, in the Appeal Panel's view, by the MRI that that was done of the appellant's right shoulder on 17 May 2019 and the MRI of his left shoulder on 22 February 2022. That is what the Medical Assessor found. It is also demonstrated, also with respect to the appellant’s right shoulder, by what Dr Nandapalan found when he operated on the appellant's right shoulder on 1 June 2020.
The findings of the MRI of the appellant's right shoulder included:
“There is a low-grade AC joint sprain injury with partial-thickness tear of the acromioclavicular ligaments and capsule, reactive bone oedema in the distal clavicle and to a lesser extent in the acromion associated with synovitis. The trapezius and deltoid insertions onto the distal clavicle have a normal appearance. The coracoclavicular ligaments and CA ligament are intact and have a normal appearance.
There is moderately, severe focal chondral wear posteriorly at the glenoid with underlying prominent subchondral cyst/geode. There is a posterior SLAP lesion on a chronic basis extending from the biceps labral anchor to at least the 6-o'clock position inferiorly. The glenohumeral ligaments are intact. No joint effusion or synovitis is present. There is also chondral wear at the humeral head with inferior marginal osteophytic lipping.”
The radiologist who reported those findings also commented that the MRI revealed “OA at the glenohumeral joint with a chronic posterior SLAP lesion”.
The Appeal Panel notes that Dr Nandapalan after his initial consultation with the appellant on 17 June 2019, wrote to the appellant's general practitioner advising that the appellant's work injury was the likely cause of the SLAP tear and that the appellant's symptoms were most likely related to the SLAP tear. That was also was the view of Dr James Bodel, as stated in his report of 31 October 2019, and of Dr Bosanquet, as stated in his report to the insurer of 28 October 2021. In other words, the position of both parties appears to be that the labral tear the appellant had in his right shoulder was the result of the incident on 19 April 2019. The Appeal Panel shall proceed on that basis.
There was however extensive osteoarthritis in the cup of the appellant’s right shoulder and the humeral head and this is apparent from the MRI done of his right shoulder on 19 May 2019 and also from what Dr Nandapalan found during surgery on the appellant's right shoulder on 1 June 2020 when Dr Nandapalan performed an arthroscopy and subpec biceps tenodesis. Dr Nandapalan following his review of the appellant on 27 July 2020 wrote to the appellant's GP advising the following:
“To recap, Thomas had a workplace injury which had resulted in right shoulder pain. Initially we thought he had a pan labral tear which we were planning to fix but intraoperatively it was clear that he had far worse damage. He had quite significant cartilage damage to both his glenoid and his humeral head grade 3 severity. His labrum was quite frayed and degenerative now and not repairable so a subacromial decompression and a biceps tenodesis was performed.”

The incident on 19 April 2019 would have resulted in an aggravation of that osteoarthritis in the appellant's right shoulder as well as causing the SLAP lesion. The appellant commenced experiencing symptoms in his left shoulder in late 2020 and early 2021, due to relying on his left shoulder more as a consequence of his right shoulder injury. The findings from the MRI of his left shoulder done on 22 February 2022 were:
“There is mild supraspinatus tendinosis with no tear. Infraspinatus, teres minor and subscapularis tendons are normal. Minor subchondral cystic change is noted at the posterosuperior humeral head. There is mild AC joint arthrosis. No subacromial spur. The proximal long head of biceps is normal. Intact superior biceps labral anchor. No labral tear.
There is moderate glenohumeral joint osteoarthritis with full thickness chondral loss at the posterior aspect of the glenoid and subchondral cystic change. There is a small glenohumeral joint effusion. Glenohumeral ligaments are intact. No features of adhesive capsulitis.”
The comments of the radiologist who made those finding included that the appellant had moderate glenohumeral joint arthrosis with a glenohumeral joint effusion.
That scan was done within three years of the appellant's injury. In the Appeal Panel's view the likelihood is that the pre-existing degeneration that the scan revealed was in the appellant's left shoulder would have been existing, or largely in existence, at the time he suffered injury. This is because a three year period is not sufficient time for the disease which the scan revealed was in the appellant's left shoulder to have developed to any significant extent.
The appellant's impairment of his shoulders has been assessed by reference to the restriction of movement he has in his shoulders. As said, no complaint has been made regarding that. In any event, in the Appeal Panel’s view, that is the appropriate method by which the appellant’s permanent impairment should be assessed.
Dr Nandapalan at surgery found significant degenerative changes involving the bony surfaces of the appellant's right shoulder. This accords with the findings from the MRI scan of the appellant's right shoulder on 17 May 2019. As said, the existing disease in the appellant's right shoulder was in the cup of his shoulder and the humeral head. The appellant's restricted range of movement in his right shoulder is largely due to that disease, which was existing before he injured his shoulder. The injury precipitated symptoms from that disease, as well as causing a SLAP tear. The pain that the appellant experienced subsequent to his injury, which manifests both from the SLAP lesion and the existing osteoarthritis in his shoulder, together contribute a portion of the appellant's current permanent impairment, in that it is a factor that inhibits to some extent the movement of his shoulder, but it is the pre-existing degenerative changes in his right shoulder that are the principal cause of his restricted range of movement, rather than the pain and labral tear. Irrespective of the labral tear and pain, it is likely the appellant would have the near the same restriction of movement of his right shoulder as a consequence of the degeneration in his right shoulder that existed at the time of injury.
In the Appeal Panel’s view the Medical Assessor has explained this in the MAC, when the MAC is read as a whole. He has found that the appellant has glenohumeral osteoarthritis in his right shoulder that was in existence at the time he suffered injury. It is apparent to the Appeal Panel that that finding was based on the MRI that was done of the appellant's right shoulder on 17 May 2019. As the Appeal Panel has indicated, in addition to that, although not referenced by the Medical Assessor, the findings from Dr Nandapalan at surgery confirmed significant pre-existing glenohumeral osteoarthritis in the appellant's right shoulder.
The Medical Assessor has also explained that without that pre-existing disease in the appellant's right shoulder it is unlikely that the appellant would have any significant impairment. That is a correct finding in the Appeal Panel's view. Consequently the Medical Assessor was correct to find that a proportion of the appellant's impairment was due to the pre-existing condition in his right shoulder because without that pre-existing condition the appellant's impairment of his right shoulder would not have been nearly as great.[3] A proportion of the appellant's permanent impairment relating to his right shoulder is due to the pre-existing condition he had in his right shoulder since without this condition he would largely have unimpeded movement of his shoulder. His injury is relevant in the sense that the pain it generated and the SLAP lesion are factors that affect his movement, but the principal factor restricting his movement is the pre-existing genohumeral osteoarthritis that affects the cup of his shoulder and the humeral head.
[3] Ryder v Sundance Bakehouse [2015] NSWSC526 at [45].
Further, it does not matter that the appellant was not suffering symptoms in his right shoulder at the time of injury.[4]
[4] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA254 at [43].
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[5] The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[6]
[5] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[6] Campbelltown City Counsel v Vegan [2006] NSWCA 284 at [122], 67 NSWLR 372; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
In the Appeal Panel’s view it is uncontroversial, based on the findings of the MRI of the appellant's right shoulder and Dr Nandapalan’s findings at surgery, that the appellant has significant glenohumeral osteoarthritis in his right shoulder and that this was existing at the time of his injury, and that would be self-evident to a medical practitioner. There is nothing within the evidence before the Appeal Panel that indicates that this is a medically contestable issue. Given that, the Medical Assessor was not required to give extensive reasons for his finding that the appellant had pre-existing osteoarthritis on his right shoulder. The Appeal Panel considers the reasons the Medical Assessor provided were adequate.
In short, the Appeal Panel considers that the Medical Assessor was correct to conclude that the appellant had a pre-existing condition in his right shoulder and that a large proportion of his permanent impairment was due to that pre-existing condition. It would have been at odds with the evidence, specifically the extent of the osteoarthritis in his right shoulder and the effect that this has on the restriction of movement in his right shoulder, for the Medical Assessor to assume that the deduction to be made under s 323(1) for the proportion of his permanent impairment of his right shoulder that was due to that pre-existing condition was 1/10th. The Appeal Panel considers that when the MAC is read as a whole the Medical Assessor has adequately explained why he could not make the assumption under s 323 (2) that the deductible proportion for s 323(1) was to be 1/10th.
The deduction that a Medical Assessor must make under s 323(1), if it applies, involves clinical judgment by a Medical Assessor based on the evidence presented.[7] That permits latitude of opinion. In the Appeal Panel’s view, it was open to the Medical Assessor to make the deduction of 1/3, given the evidence. The Medical Assessor had regard to the extensive osteoarthritis in the appellant's right shoulder and also the effect of it on the movement of his right shoulder. His assessment was not glaringly improbable and was open to be made on the evidence.
[7] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324at [91], [92] and [96].
The Appeal Panel does not accept the appellant’s submission to the effect that the focus of the Medical Assessor’s enquiry was on whether his pre-existing condition made him vulnerable to the occurrence of injury rather than whether his pre-existing condition contributed to his impairment from his injury. The Medical Assessor noted that the appellant’s injury involved an aggravation of underlying degeneration as well as a SLAP lesion. The aggravation of the appellant’s underlying degeneration in his right shoulder from the incident on 19 April 2019 is an uncontroversial fact, it seems to the Appeal Panel, based on the evidence before the Medical Assessor, including Dr Bodel’s report. The Medical Assessor was, in essence, just being thorough to record that. But it is clear, it seems to the Appeal Panel, from what the Medical Assessor explained that he turned his attention and dealt with, correctly, whether the appellant’s impairment relating to his right shoulder was due in part to the pre-existing degeneration in his right shoulder.
The Appeal Panel also considers that the MRI of the appellant's left shoulder that was done near three years after the appellant's injury also revealed significant glenohumeral osteoarthritis in the appellant's left shoulder. The finding of the radiologist was that there was “moderate glenohumeral joint osteoarthritis with full thickness chondral loss at the posterior aspect of the glenoid and subchondral cystic change”. That change could not have been caused after the appellant's injury because the time between the appellant's injury and the date the MRI was done was too short for such change to have developed or developed to any significant degree. In other words, as said earlier, it either was in existence completely at the time he suffered injury or largely in existence at that time. Again, it is that osteoarthritis, coupled with the pain from it that inhibits the movement of the appellant’s left shoulder. But again, as the Medical Assessor found, without that pre-existing disease in his left shoulder, the appellant would likely not have any restricted range of movement and consequently would not have any impairment. Consequently, in the Appeal Panel’s view, the Medical Assessor was right not to make an assumption under s 323(2), that the proportion of the appellant's permanent impairment from his injury, with respect to his left shoulder, that was due to the pre-existing disease in his left shoulder was 1/10th. That assumption would be at odds with the evidence, being the extent of the osteoarthritis that was in existence in his left shoulder at the time of injury and the fact that that disease is largely the cause of his restricted movement of his left shoulder.
The Appeal Panel also considers that the Medical Assessor has not wrongly exercised his clinical judgment by assessing that the proportion of the appellant's permanent impairment relating to his left shoulder that is due to the pre-existing disease in his left shoulder is 1/3. The Medical Assessor has had regard to the extent of the osteoarthritis in the appellant's left shoulder and also to the effect that has on the restriction of the movement on his left shoulder by which his impairment has been assessed. That is implicit from the MAC when it is read as a whole. The Medical Assessor has had regard to all relevant matters when exercising his judgment and the conclusion that he made was open to him. It is a matter about which reasonable minds might differ, but the conclusion of the Medical Assessor that the contribution of the appellants pre-existing at disease in his left shoulder to his permanent impairment from his injury was 1/3 was in a range of permissible outcomes, in the Appeal Panel’s view.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 January 2024 should be confirmed.

[2024] NSWPICMP 253

30 April 2024