Ram v National Workforce Pty Ltd
[2025] NSWPICMP 373
•28 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ram v National Workforce Pty Ltd [2025] NSWPICMP 373 |
| APPELLANT: | Uttra Ram |
| RESPONDENT: | National Workforce Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 28 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) assessed 0% whole person impairment (WPI) of the cervical spine and 7% WPI of the left upper extremity; applicant appealed assessment of the left upper extremity on the basis that the Medical Assessor (MA) relied on adopted findings that were obtained in an examination under anesthesia nine years prior without an adequate explanation; Appeal Panel satisfied that the MA made a demonstrable error; worker re-examined in a joint re-examination and assessed as having 2% WPI of the left upper extremity; Held – MAC revoked and new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 February 2025 Uttra Ram (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 9 January 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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered an injury on 27 March 2012 to her cervical spine and left upper extremity in her employment as a process worker with National Workforce Pty Ltd (the respondent) when she was attempting to clear a machine.
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 31 July 2024 in which she claimed lump sum compensation in respect of the injury to her cervical spine and left upper extremity.
In a Certificate of Determination – Consent Orders dated 21 October 2024, Member Gaius Whiffin made orders including the following:
“7. I remit these proceedings to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for assessment as follows:
(a) date of injury: 27 March 2012;
(b) body systems/parts: cervical spine, left upper extremity (shoulder), and
(c) method of assessment: whole person impairment.
8. The documents to be reviewed by the Medical Assessor are:
(a) the application to resolve a dispute and attached documents, except that the reports of Dr Mendelsohn dated 13 November 2017 and 5 December 2020 are only to be considered in relation to the histories detailed in them, and not otherwise as forensic medical reports;
(b)the respondent’s reply and attached documents except that the reports of Dr Anderson dated 15 August 2012 and Dr Breit dated 12 January 2015 are only to be considered in relation to the histories detailed in them, and not otherwise as forensic medical reports;
(c) any application to admit late documents and attached documents lodged and admitted in accordance with orders 4 and 5 above, and
(d) this certificate of determination.”
The Medical Assessor examined the appellant on 19 December 2024 and assessed 9% whole person impairment (WPI) of the left upper extremity (shoulder) and reduced one tenth pursuant to s 323 of the 1998 Act which resulted in 8% WPI. The Medical Assessor assessed 0% WPI of the cervical spine. The total WPI assessed was 8% as a result of the injury on 27 March 2021.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination because there was insufficient information upon which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessors James Bodel and Tommasino Mastroianni of the Appeal Panel conducted a joint examination of the appellant on 14 May 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) ground 1 - the Medical Assessor adopted findings of Dr Tack-Shin Lee, that were obtained in an examination under anaesthesia on 3 December 2015, nine years prior to the assessment by the Medical Assessor, without an adequate explanation or exposing his reasoning. He resorted to adopting the examination findings of Dr Tack-Shin Lee as the basis for his assessment believing the examination conducted by Dr Tack-Shin Lee to be the most accurate as it was done under anaesthesia;
(b) the examination by Dr Tack-Shin Lee was carried in December 2015, nine years prior to the examination by the Medical Assessor. There is evidence of deterioration (see report of Dr G Mendelsohn dated 5 December 2022). The fact of the nine year difference was not addressed by the Medical Assessor and the Medical Assessor did not explain why this examination and its findings were still an appropriate measure;
(c) ground 2 - the purpose of the examination by Dr Tack-Shin Lee was not an assessment of WPI and the findings were limited to elevation (flexion) and external rotation for which he provided figures. Internal rotation, adduction, abduction and extension were not assessed nor were any findings recorded. These are required to be assessed when assessed an upper extremity/shoulder impairment. It is not known how Dr Tack-Shin Lee conducted the examination other than it was passive movement under anaesthesia. The applicable Guidelines require only active range of motion (ROM) measurements to be used with either a goniometer or inclinometer (see clause 2.5 of the Guidelines);
(d) ground 3 - in circumstances where several experts have accepted the existence of a frozen shoulder, the mere adoption of Dr Tack-Shin Lee’s findings is inadequate and inappropriate and that the Medical Assessor’s reasoning and explanation for adopting those limited findings is also inadequate and fails to meet the minimum requirements for providing a rationale for the outcome;
(e) a failure to provide reasons or expose the process of reasoning is a demonstrable error and has a material effect on the outcome (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 3; 252 CLR 480);
(f) the appellant submits that the Medical Assessor made a bald statement regarding the adoption of Dr Tack-Shin Lee’s findings without providing any, or any adequate reasons, and without exposing his process of reasoning as he is obliged to do (Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [128]-[129]), and
(g) the errors are made out and the Appeal Panel ought conduct a re-examination to obtain evidence relevant to the assessment of the left upper extremity (left shoulder).
The respondent’s submissions include the following:
(a) ground 1 – the Medical Assessor’s reasoning when deciding to adopt the findings of Dr Tack-Shin Lee from 3 December 2015 was not insufficient. The MAC clearly delineates the path of reasoning followed by the Medical Assessor;
(b) as was explained by the Supreme Court in Vitaz v Westform (NSW) Pty Limited and Ors [2010] NSWSC 667 (Vitaz) at 35, any analysis of the reasons contained in the MAC should not be finely attuned for error. The Medical Assessor does not need to provide extensive reasons for every specific finding made in a MAC and is only required to explain the “actual path of reasoning” leading to the decision (see State of NSW (NSW Department of Education) v Kaur [2016] NSWSC 346 (Kaur));
(c) under the heading ‘consistency of presentation’ on page 4 of the MAC, the Medical Assessor has stated that “Ms Ram was co-operative throughout the assessment”. Perhaps this is a demonstrable error made by the Medical Assessor, in that on the face of the MAC as a whole it is clear that he found the appellant’s presentation to be inconsistent in a different area of the MAC. This is therefore likely an error, but this error has not caused any change to the outcome of the assessment;
(d) by referring to paragraph 1.36 of the Guidelines, the Medical Assessor is clearly indicating that in his view, the use of ROM measurements from the appellant’s examination on the date of the assessment was not, in his clinical judgement, an appropriate measure of her impairment. The Guidelines clearly state that if that is the case, “the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing”;
(e) the Medical Assessor clearly set out the actual path of reasoning applied to reach the conclusion that the measurements of Dr Tack-Shin Lee ought to be adopted. He notes that the appellant’s presentation has been inconsistent with imaging for some time, and that an examination under sedation demonstrated significantly greater range of motion than that which has been observed on physical examination. It clear from this answer that the Medical Assessor considers that the most objective evidence available to measure the actual restriction in ROM of the appellant are the figures obtained under sedation given the appellant’s otherwise inconsistent presentation;
(f) whilst the Medical Assessor has not specifically addressed the timeline since the sedation took place, he was clearly aware of same noting he recorded the date of that assessment in the MAC. The Medical Assessor was still able to conclude that this remained the best available evidence to be relied upon in the determination of this complex case;
(g) in the absence of the appellant identifying the method it says would have been more appropriate to have been adopted by the Medical Assessor, the respondent fails to see on what basis the Medical Assessor’s methodology could amount to an error;
(h) the Medical Assessor’s obligation to provide sufficient reasons has been discharged within the Medical Assessor’s answer to question 10(b), and therefore the ground of appeal cannot be made out;
(i) ground 2: Whether the Medical Assessor erred by adopting the findings of Dr Tack-Shin Lee because he only measured elevation and external rotation, and not the other measurements involved in a WPI assessment under AMA5. While the Medical Assessor has had to exercise clinical discretion in a complicated medical case, his decision making does not amount to an error given the circumstances of this assessment;
(j) the Medical Assessor has referenced paragraph 1.36 of the Guidelines, which provides that where a Medical Assessor considers that a measurement is not plausible or consistent with the impairment being evaluated, they are to exercise their clinical judgement and skill to modify the impairment assessment to best reflect the impairment rating present;
(k) the Medical Assessor has exercised this discretion appropriately and clearly sets out the reasons why he does not consider the appellant’s examination to be acceptable for the purposes of determining impairment. He went on to determine that the best possible solution available to obtain an understanding of the appropriate rateable impairment was to adopt the findings of Dr Tack-Shin Lee;
(l) as observed by the appellant in their submissions, many experts in this case have experienced ‘frustrations’ in reaching a diagnosis and conducting an examination in this case. In a case where the method of assessment is far from clear, the Medical Assessor’s use of discretion to locate some kind of objective measurement to base an assessment of impairment on, ought not be minutely examined for error. Whilst the examination of Dr Tack- Shin Lee was not performed with a WPI assessment in mind, the Medical Assessor has nonetheless accepted that this is the best available evidence to him in determining the appellant’s likely impairment;
(m) this was an appropriate exercise of the Medical Assessor’s clinical judgement and skill as required by paragraph 1.36 of the Guidelines, and does not amount to an error. This ground of appeal must also fail;
(n) ground 3: Whether the Medical Assessor erred by failing to engage with evidence of a frozen shoulder. The respondent does not accept that the Medical Assessor’s failure to directly refer to each piece of evidence described therein means that he failed to consider same. The documents referred to were all contained within the relevant documents given in the referral to the Medical Assessor, and it cannot be said that a failure to refer to each and every document reviewed and considered amounts to an ignorance of the report in its entirety;
(o) it is unclear how the Medical Assessor’s purported failure to accept the presence of ‘frozen shoulder’ has had an impact on the assessment of the appellant’s condition and the outcome of the WPI assessment at all;
(p) the appellant’s presentation has been largely unchanged for some time, irrespective of whether the diagnosis of ‘frozen shoulder’ is considered applicable or not. Therefore, this submission has no material impact on the outcome of the MAC and is not a demonstrable error, and
(q) no grounds of appeal have been made out. The appeal should be dismissed.
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 Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – adopting the findings of Dr Tack-Shin Lee obtained in an examination under anaesthesia on 3 December 2015 without an adequate explanation or exposing his reasoning
The appellant submits that the Medical Assessor adopted the findings of Dr Tack-Shin Lee, orthopaedic surgeon, that were obtained in an examination under anaesthesia on
3 December 2015, nine years prior to the assessment by the Medical Assessor, without an adequate explanation or exposing his reasoning.The Medical Assessor under “History Relating to the injury” noted:
“On the date of injury, Ms Ram was at work operating a cake machine. The machine stopped and she was trying to unjam it. In the process of doing this, she reached into the machine and bent down and felt a pulling sensation in her left shoulder and elbow. She tried to continue at that work but later that day had to stop due to intensive pain. She went home and told her daughter of her injury and she recommended she rub Voltaren on it.
She went to work the next day but was unable to work due to her pain. She presented to her General Practitioner who organised a CT and an MRI for her. She was referred to Dr Duckworth, an Orthopaedic Surgeon. A clinical letter dated 24/04/2012 details the mechanism of injury, and examination documenting marked restricted range of motion in her shoulder with generalised sensitivity to touch. Dr Duckworth notes the MRI of the shoulder demonstrating ‘only very mild degenerative changes but no other significant pathology’. Dr Duckworth did not think surgical treatment was appropriate and referred Ms Ram to Dr Dalton, a Rehabilitation Specialist.
Dr Dalton assessment dated 11/05/2012 opines cervicobrachial pain with
secondary adhesive capsulitis.
At review on 12/07/2012 he notes pain and restricted movement and recommends ongoing rehabilitation.
At review on 18/11/2013, Dr Dalton notes ongoing symptoms but further that ‘Essentially she had had no formal treatment or rehabilitation since he last saw her’. He observes ‘the striking aspect of her presentation today was her overt pain and avoidant behaviour. He summarises ‘Essentially this lady has developed a chronic pain disorder in response to her injury.’
On 12/07/2019, Ms Ram was reviewed by Dr Mohabbati, a Pain Management Specialist. Dr Mohabbati concludes ‘Ms Ram fits the criteria for diagnosis of complex regional pain syndrome Type 1’. He recommends a rehabilitation program.
At review on 12/12/2019, Dr Mohabbati notes Ms Ram developing cramps in both of her legs extending up to the torso. He also notes pain extending up to the left hand side of the neck. He refers Ms Ram for an MRI of the cervical spine and left shoulder. Unfortunately, Ms Ram was not able to have the studies due to being claustrophobic. The records indicate an attempt was made to arrange the imaging under sedation but it appears as though the arrangements were not able to be made.
I note Dr Duckworth organised for Ms Ram to be reviewed by a Neurologist, Dr Clouston. In a clinical letter dated 31/08/2012, Dr Clouston noted Ms Ram reporting numbness in a C5/6 distribution in the left arm. He organised an MRI of the cervical spine and brachial plexus as well as nerve conduction studies. Report of the imaging of the cervical spine and plexus is that it was essentially unremarkable.
Ms Ram was reviewed by another Orthopaedic Surgeon, Dr Tak-Shin Lee. In a clinical letter dated 04/11/2015, he notes ongoing problems in the shoulder and inability to either actively or passively elevate the shoulder. He proceeds with an examination under anaesthesia. It was undertaken on 03/12/2015. At that stage, 100° of elevation and 40° of external rotation was noted.”
The Medical Assessor under “Findings on physical examination” noted:
“On examination, Ms Ram was very reluctant to move her left arm.
Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Limited neurological examination of the upper limbs demonstrated symmetrical reflexes and a negative Hoffman test. There was bilateral cog-wheel weakness.
Lower limb reflexes were symmetrical with no clonus. She exhibited reduced but symmetrical range of motion of the cervical spine in all directions.
Range of motion of the shoulders was assessed as follows:
| MOVEMENT | RIGHT | LEFT |
| Flexion | 90 | 30° |
| Extension | 30° | 0 |
| Abduction | 90 | 0 |
| Adduction | 20° | 0 |
Internal and external rotation were not assessable as it was not possible to bring the arm from the side. The range of motion was not passively extendable as it was actively resisted.”
Under “Summary” the Medical Assessor wrote:
“Summary of injuries and diagnoses:
Ms Ram developed pain in her left shoulder and elbow whilst reaching forward to unjam a machine she was operating. She has had persistent pain and loss of function in her left shoulder and arm subsequently and has developed a variety of symptoms for which no structural diagnosis exists.
Consistency of presentation
Ms Ram was co-operative throughout the assessment.”
Under “Reasons for Assessment” the Medical Assessor at 10.b wrote:
“Ms Ram presents with significant restriction in range of motion of her left shoulder which is inconsistent with imaging she had at the time of her injury demonstrating relatively minor background changes in the shoulder joint. An examination under sedation has demonstrated significantly greater range of motion.
According to SIRA, page 7, paragraph 1.36 in my clinical opinion the observed range of motion is inconsistent with the medical evidence to verify impairment suggested by the restricted range of motion. On this basis, I have modified the impairment consistent with findings of the range of motion detected by Dr Tak-Shin Lee when the shoulder was examined under sedation. On this basis, I have assessed 9% whole person impairment for left upper extremity (shoulder)…”
In commenting on other medical opinions, the Medical Assessor wrote:
“With respect to the report by Dr Boesel dated 22/05/2023, I note in his assessment he is determined that the criteria to establish a diagnosis of chronic regional pain syndrome were not present at the time of his assessment. He has assessed impairment of the left upper extremity on the basis of restricted range of motion of the shoulder, elbow and wrist. He has assessed 38% upper extremity impairment for restricted range of motion in the shoulder which converts to a 23% whole person impairment. For reasons described above, I regard this as being inconsistent with the available evidence and hence have made a different assessment of impairment for the left upper extremity (shoulder)…
With respect to the report by Dr Bentivoglio dated 01/08/2023, Dr Bentivoglio does not assess impairment for the left shoulder on the basis that he concludes restriction of the range of motion in the shoulder is voluntary. He does assess the cervical spine as DRE Cervical Category II. On his examination of the neck, he notes ‘there was no paravertebral muscle spasm present. I was unable to palpate any crepitation present on moving her neck. She demonstrated three quarter range of movement present in her cervical spine. There is no muscle wasting present in the forearms. There were no localising motor, sensory or reflex abnormalities I could detect on the upper limbs’.
Dr Bentivoglio does not describe muscle spasm or guarding, asymmetrical loss of movement, non-verifiable radicular complaints or alteration of structural integrity.”Dr Ke Huang, treating orthopaedic surgeon, in a report dated 10 September 2013, noted on examination that the appellant had muscle wasting of the left shoulder girdle. He noted that active range of motion in the left shoulder was very difficult to assess due to constant pain in any direction. He expressed the view that the appellant’s symptoms were suggestive of complex regional pain syndrome, which appeared to be precipitated by the left shoulder subacromial bursitis.
Dr Richard Crane, Approved Medical Specialist, in a MAC dated 6 July 2015, considered that there was no objective clinical explanation for the inability of the appellant to move the left shoulder but he recommended that adequate investigation of her condition would include an examination under anaesthesia which should be able to either diagnose or rule out the diagnosis of a frozen shoulder. He did not consider that she qualified for CRPS when applying the AMA5 guides.
Dr Tack-Shin Lee, treating orthopaedic surgeon, in a report dated 4 November 2015 noted that Dr Crane had suggested that the appellant have a manipulation under anaesthesia to differentiate between frozen shoulder and chronic regional pain syndrome.
Dr Tack-Shin Lee, in a report dated 4 December 2015, noted that he performed an assessment of the left shoulder under anaesthesia on 3 December 2015. He reported that the appellant had 100 degrees of elevation and 40 degrees of external rotation and rotation with normal circulation in the left hand, no increased swelling but evidence of hyperhidrosis.
Dr Tack-Shin Lee, in a report dated 12 June 2019, noted that he had performed an examination under anaesthesia in December 2015. He noted that left shoulder elevation was 100 degrees, and external rotation was 45 degrees. Dr Lee reported that in the examination on 12 June 2019 the appellant had passive elevation of 20 degrees passive abduction of 20 degrees and active external rotation of 20 degrees.
Dr Mendelsohn, consultant general surgeon, in a report dated 13 November 2017 considered that the appellant did have a frozen shoulder on the left side but did not qualify for a diagnosis of CRPS.
Dr Mendelsohn, in a report dated 5 December 2022 noted that the appellant felt that symptoms in her left arm had been deteriorating. He wrote:
“She demonstrated no mobility in any of her joints in her left upper limb. She resisted any gentle attempts to move the arm.
Because of the failure to be able to examine her in any meaningful way, I was unable to ascertain whether she was suffering from a frozen shoulder. She appeared to be unable to move her elbow, her wrist or hand, also.”
Dr Mendelsohn wrote: “I had difficulty ascertaining exactly the injuries from which Mrs Ram is suffering. She does appear to have a frozen left shoulder, and this was apparent in my previous examinations.” He considered that the prognosis was extremely poor, and the appellant was showing signs of deterioration with increasing dependence and an increasing pain behaviour situation. Dr Mendelsohn concluded that he was unable to carry out any meaningful assessment of true WPI. He believed that some form of psychiatric treatment may be of assistance.
Associate Professor Wolf Boesel, pain medicine physician, in a report dated 22 May 2023 under “Physical examination Findings and Associated Impairment Percentages” wrote:
“With respect to the left upper limb:
Shoulder examination and associated impairments were as follows – Flexion 10 degrees (16% impairment), extension 10 degrees (2% impairment), abduction 0 degrees (12% impairment), adduction 10 degrees (1% impairment). Internal and external rotation difficult to test but appeared to be 0 (5% and 2% respectively).
This gives a shoulder related upper limb impairment of 38%.”
Associate Professor Boesel did not assess CRPS, noting that the appellant did not meet the clinical diagnosis of CPRS type I or type II under the Guidelines but based on the restricted range of motion of the shoulder, elbow and wrist, assessed 38% upper extremity impairment converting to 23% WPI.
Associate Professor Boesel made a diagnosis of frozen left shoulder. He considered that she had a chronic pain disorder and while there may have been excessive illness behaviour, there was a biology underlying the condition. He accepted that there was a high level of abnormal illness behaviour as part of the presentation.
Dr Bentivoglio, in his report dated 1 August 2023, noted on examination that there was no muscle wasting present around the shoulder girdles. He stated that the appellant demonstrated essentially no movement at all in her left shoulder. He concluded that she was not suffering from complex regional pain syndrome at this point in time. He concluded the restriction in the range of motion of the shoulder was voluntary.
The appellant submits that the Medical Assessor adopted findings of Dr Tack-Shin Lee, obtained in an examination under anaesthesia on 3 December 2015, without an adequate reasoning. The appellant argues that there is evidence of deterioration and the fact of the nine year difference was not addressed by the Medical Assessor who did not explain why this examination and its findings were still an appropriate measure.
Paragraph 1.36 of the Guidelines 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 assessor must use their entire range of clinical skill and judgment 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 assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.”
Paragraph 1.48 of the Guidelines provides:
“1.48 As the Guidelines are to be used to assess permanent impairment, the report of the valuation should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines. If the evaluation was conducted in the absence of any pertinent data or information, the assessor should indicate how the impairment rating was determined with limited data.”
Paragraph 2.25 of the Guidelines provides:
“Range of motion (ROM) is assessed as follows:
• A goniometer or inclinometer must be used, where clinically indicated.
• Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
• If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
• If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
• If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
Section 325(2)(c) of the 1998 Act provides that a Medical Assessor must provide reasons for their assessment. This does not require a Medical Assessor to provide extensively detailed reasons as to his or her opinion, rather it requires the Medical Assessor to “explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law” (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 3; 252 CLR 480).
The Appeal Panel noted that the Medical Assessor made the assessment of impairment in the left shoulder based on passive findings of ROM from examination under sedation on
3 December 2015. The Appeal Panel accepts that the Medical Assessor stated that in his clinical opinion the observed range of motion was inconsistent with the medical evidence to verify impairment suggested by the restricted range of motion. He proceeded to then modify the impairment consistent with findings of the range of motion detected by Dr Tak-Shin Lee when the shoulder was examined under sedation.The Appeal Panel is of the view that an assessment of impairment should be made on the basis of active ROM, not passive movements from examination under sedation. Further, the Appeal Panel considers that if a Medical Assessor is modifying an assessment because of inconsistency, the Medical Assessor should not rely on findings made nine years ago by another doctor. Such an approach is inherently unreliable because it relies on findings made nine years ago and therefore is not an appropriate method of assessment of current impairment. The Appeal Panel is satisfied that the Medical Assessor made a demonstrable error in his assessment of impairment in the left shoulder by making the assessment on the basis of passive findings of ROM from examination under sedation on 3 December 2015.
The Appeal Panel is satisfied that this ground of appeal is made out.
In addition, the Appeal Panel notes that the Medical Assessor under “Consistency of presentation” merely noted that “Ms Ram was co-operative throughout the assessment”. However, considering the MAC as a whole and in particular part 10.b it is clear that the Medical Assessor found the appellant’s presentation to be inconsistent. The Appeal Panel regards such an obvious inconsistency within the MAC as a demonstrable error.
The Appeal Panel notes that the appellant submits that the reports of Dr Anderson dated
15 August 2012, Dr Breit dated 12 January 2015 and Dr Mendelsohn dated
13 November 2017 and 5 December 2022 were provided to the Medical Assessor for review and consideration of the histories recorded in them, but the Medical Assessor ignored these reports.The Appeal Panel considers that there is no obligation on the Medical Assessor to refer to all of the medical reports before him. The Appeal Panel accepts that there is no reference by the Medical Assessor to the history taken in these reports, however, the appellant has not identified what specifically should have been taken into account in these reports nor how such matters would have materially affected the assessment made.
The appellant submitted that there was other relevant evidence before the Medical Assessor, which was ignored, for example, a diagnosis of CPRS by Dr Huang as noted by Dr Crane, AMS in the MAC dated 6 July 2015. Again, the Appeal Panel accepts that there is no reference by the Medical Assessor to the diagnosis of CPRS by Dr Huang as noted in the MAC dated 6 July 2015. However, the appellant has not identified what specifically should have been taken into account in these reports nor how such matters would have materially affected the assessment made.
Ground 2 –adopting the findings of Dr Tack-Shin Lee, which were limited to an assessment of elevation and external rotation, and then extrapolated to an assessment of 8% WPI for the left upper extremity, without providing adequate reasons or exposing his process of reasoning
The appellant submits that the Medical Assessor adopted findings of Dr Tack-Shin Lee which were limited to an assessment of elevation and external rotation without providing adequate reasons or exposing his process of reasoning.
The Appeal Panel accepts that the purpose of the examination by Dr Tack-Shin Lee was not an assessment of WPI and accepts that the findings were limited to elevation (flexion) and external rotation for which he provided figures. Internal rotation, adduction, abduction and extension were not assessed nor were any findings recorded. These movements are required to be assessed when assessing an upper extremity/shoulder impairment.
The Appeal Panel accepts that it is not known how Dr Tack-Shin Lee conducted the examination other than it was passive movement under anaesthesia. Paragraph 2.5 of the Guidelines require only active ROM measurements to be used with either a goniometer or inclinometer, although if the assessor finds there is inconsistency in ROM, assessment may be made under the provisions in Paragraph 1.36.
The Appeal Panel accepts that only two of the six fields of ROM were used for the assessment of WPI of the left upper extremity. The Medical Assessor did not, in our view, explain adequately why that methodology was used, rather, than, for example, an assessment by analogy. The Appeal Panel is satisfied that the failure to provide adequate reasons in these circumstances was a demonstrable error. This ground of appeal is made out.
Ground 3 – Frozen shoulder
The appellant submitted that in circumstances where several experts have accepted the existence of a frozen shoulder, the mere adoption of Dr Tack-Shin Lee’s findings is inadequate and inappropriate and the Medical Assessor’s reasoning and explanation for adopting those limited findings is inadequate and fails to meet the minimum requirements for providing a rationale for the outcome.
The Appeal Panel notes that the Medical Assessor referred to Dr Dalton’s diagnosis of secondary adhesive capsulitis (frozen shoulder) on 11 May 2012. The Medical Assessor also referred to the report of Associate Professor Boesel dated 22 May 2023 in which Associate Professor Boesel made a diagnosis of frozen left shoulder.
The Appeal Panel notes that Dr Tack-Shin Lee did not obtain a full ROM in his examination in December 2015 when he measured that appellant’s ROM under sedation. The fact that there was some restriction in ROM is evidence at that point in time demonstrates that the appellant had some genuine loss of passive range of motion and therefore is an indication that she did not then have adhesive capsulitis.
The Appeal Panel does not accept that the Medical Assessor’s failure to directly refer to each piece of evidence referred to by the appellant means that the Medical Assessot failed to consider same. The documents referred to were all contained within the relevant documents provided to the Medical Assessor, and the Appeal Panel does not accept that a failure to refer to each and every document reviewed amounts to a failure to consider those documents. As noted above, the Medical Assessor referred to reports of other doctors who had made a diagnosis of frozen shoulder.
In any event, the Appeal Panel has found above that the Medical Assessor made a demonstrable error in his assessment of impairment in the left shoulder by making the assessment on the basis of passive findings of ROM from examination under sedation by Dr Tack-Shin Lee on 3 December 2015.
The Appeal Panel finds that this ground of appeal is not made out.
The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above a joint re-examination was carried out by Medical Assessors James Bodel and Tommasino Mastroianni on 14 May 2025. Medical Assessor Mastroianni performed the physical examination with assistance by the chaperone, a registered nurse. Medical Assessor Mastroianni provided the following report:
1. The workers medical history, where it differs from previous records
The history recorded by the Medical Assessor (Dr Rob Kuru) on 19 December 2024 was read out to the patient and she confirmed the history.
2. Additional history since the original Medical Assessment Certificate was performed
The claimant was asked if she had any further investigations or treatment since reviewed by Dr Kuru and she said that she has had no new treatments or investigations.
The claimant was asked to describe what her symptoms and problems were and she states that she has constant pain in her neck, left shoulder, left leg, right shoulder and right leg.
When asked about the character of the pain she states that the pain is aggravated if she tries to move her left arm, but otherwise the pain does not really vary. She states that the pain in the left shoulder got worse when she stopped hydrotherapy in 2014 and its been the same since.
When asked about her present treatment she said that she takes the following medications which she has been taking for years:
Temazepam 10mg at night,
Twynsta daily,
Lyrica 150mg twice daily,
Somac twice daily.
The only medication in the above list for pain relief is Lyrica which is normally used for neuropathic pain.
3. Findings on clinical examination
I asked the claimant to enter the consulting room and I noted she was having great difficulty getting up from the waiting room chair despite her husband helping her. She holds onto her husband for support as she walks with a marked limp favouring the left leg, although the limp does not appear to be an antalgic gait.
She gives the impression to be in constant severe pain and her body movements generally are bizarre and difficult to associate/attribute to any known disease /injury. She holds her left arm close to her body and does not move it, and constantly forcefully swings her right shoulder and arm in flexion, rotation and extension which is inconsistent with her complaints of right shoulder pain and the apparent tenderness/pain and restricted movements noted on examination.
When asked to undress, her husband jumped to her assistance, making the comment that she does not do anything at home, and she needs assistance with self-care, showering and dressing which he does together with their daughter.
We then asked the chaperone, a trained nurse to assist with removing her upper garments. This was extremely difficulty as the nurse was not allowed to touch her left arm, and the claimant appears to be in severe pain as the sleeve of the garment was removed from the left arm.
Regarding the right arm, she had normal range of movement whilst undressing.
Her shoulders were inspected and active range of movement was measured with a goniometer whilst sitting on the couch which was lowered to a comfortable level so she could rest her feet on the ground, as she was not able to stand up to allow examination.
Inspection of both upper limbs revealed no wasting in the shoulders or the arms, and when measured, the upper arms and forearms were of equal size. Inspection revealed no trophic changes in the hands or the arms. In particular her nails were inspected and there were no trophic changes in either hand. There was no colour difference in the arms, no temperature difference, and the skin texture was similar and normal. There was no oedema or sweating. She had normal sensation in the right arm both to light touch and sharp stimuli, however in the left arm starting at about mid-clavicular level, she had anaesthesia to light touch and sharp stimuli extending to the fingertips.
When asked to move the left shoulder, she said she cannot do it, and similarly she said she could not move the elbow, however she could passively move the elbow with the assistance of her right hand, and at times was able to flex the elbow without assistance.
When asked to apply force in resisted elbow movements, there was no attempt, and when asked to grip, again there was no attempt on the left hand side, whilst on the right hand side she was flexing her flexors and extensors in the forearm with no movement in the fingers. However, making a fist without asking her to grip she appears to have normal finger movements in the right hand whilst on the left hand there were no active movements.
Reflexes were normal and symmetrical.
Left shoulder movements could not be measured as she would not actively move the left shoulder. When trying to inspect the axilla/armpit to see if there were any skin changes as a consequence of keeping the shoulder constantly in adduction, I was not able to inspect it as she would not allow any passive movements of the shoulder, and when the nurse tried to move it, I noted when touching her inner arm that she was actively resisting abduction yet when asked to adduct the arm there was no attempt.
Regarding the right non-injured limb there was tenderness in the anterior shoulder joint as there was in the left injured shoulder.
Right shoulder movements were restricted and measured with a goniometer.
Right Shoulder Movements
Movement
Range
Flexion
90°
Extension
40°
Abduction
30°
Adduction
20°
Internal rotation
50°
External rotation
40°
What was noted during the examination as she sat on the couch, she constantly flung her right arm across to her left arm and kept hitting herself in the left shoulder over the deltoid. The right arm was showing movements far greater than what was recorded on formal examination and the constant hitting of the left shoulder didn’t seem to cause any pain.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
The Appeal Panel adopts the report and findings of Medical Assessor Mastroianni.
The Appeal Panel notes that as seen in the clinical findings in the re-examination report, the appellant’s left shoulder was not able to examined due to the inability to move the arm. The Appeal Panel are of the opinion that her clinical findings are not consistent with the radiological findings or known disease or injury, such as a frozen shoulder, which even if chronic, still would allow some movement.
In view of the clinical findings of no wasting, normal reflexes, no trophic changes, no circulatory problems, and no evidence of CRPS, the Appeal Panel cannot attribute the appellant’s condition to any musculoskeletal or neurological condition.
There were inconsistencies on examination of the left upper extremity such as actively resisting abduction when the nurse tried to abduct the arm to inspect her axilla, intermittent active flexing the left elbow which she could never do when asked to. There were inconsistencies in the right non-injured arm where the appellant forcefully threw the arm around with what appears to be a normal range of movement in contrast to the recorded findings when measuring the range with a goniometer. These inconsistencies and the lack of clinical findings, in the opinion of the Appeal Panel, support a non-organic cause consistent with illness behaviour.
Based on her X-ray reports and the clinical findings, the appellant’s presentation is not consistent with the pathology in the shoulder. The Appeal Panel cannot attribute the findings to any known pathology that present in such a manner and concludes that her presentation is consistent with gross illness behaviour.
The Appeal Panel concludes that because of inconsistent presentation impairment cannot be assessed by range of motion (Paragraphs 1.36 and 2.5 of the Guidelines) and is best assessed by analogy to impingement which equates to 2% WPI (paragraphs 2.16 of the Guidelines).
The Appeal Panel assesses 2% WPI of the left upper extremity as a result of the injury on
27 March 2012. The Medical Assessor assessed 0% WPI of the cervical spine, which has not been appealed. Therefore, the combined Total WPI is 2% as a result of the injury on
27 March 2012.For these reasons, the Appeal Panel has determined that the MAC issued on
9 January 2025 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: | W24428/24 |
Applicant: | Uttra Ram |
Respondent: | National Workforce Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Rob Kuru 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 NSW workers compensation guidelines | 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 | 27March2012 | P 392 T 15-5 | 0% | 0% | ||
| 2.Left upper extremity | 27 March 2012 | Chapter 2 Paragraphs 1.36, 2.5, 2.16 | P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 | 2% | Nil | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 2% | |||||
0
4
0