Richards v Baptistcare NSW & Act
[2025] NSWPICMP 243
•7 April 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Richards v Baptistcare NSW & ACT [2025] NSWPICMP 243 |
| APPELLANT: | Rachel Richards |
| RESPONDENT: | Baptistcare NSW & ACT |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 7 April 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of 5% whole person impairment (WPI) of the left upper extremity; worksheet referred to in the MAC not attached; Appeal Panel satisfied that this was not a material error; appellant also appealed on the basis that the Medical Assessor (MA) took into account the range of motion in the contralateral joint without providing a rationale for doing so as required in clause 2.20 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); Appeal Panel accepts that the MA did not explain his rationale for his decision to use the impairment values corresponding to the uninvolved joint as a baseline and subtract from the calculated impairment for the involved joint; failure to explain the rationale is a demonstrable error and application of incorrect criteria; Held – MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 December 2024 Rachel Richards (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 12 May 2022 to her left shoulder in her employment as a care worker with Baptistcare NSW & ACT (the respondent) when she slipped and fell, while walking through a tiled courtyard.
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 22 October 2024 in which she claimed lump sum compensation in respect of the injury to her left upper extremity.
The Medical Assessor examined the appellant on 19 December 2024 and assessed 5% WPI of the left upper extremity as a result of the injury on 12 May 2022.
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 did not request 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 unnecessary for the appellant to undergo a further medical examination because there was sufficient 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.
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 did not attach the worksheet that he referred to at page 4 of the MAC. In the absence of the worksheet, it is not possible to follow the Medical Assessor’s reasoning process in arriving at a determination of 5% WPI, and, whether that reasoning process involves an error of law. As such, the MAC has failed to comply with the requirement to provide adequate reasons as described in Wingfoot Partners (Aust.) Ltd v Kocak [2013] HCA 43 (Kocak) at [54] and [55].
(b) The absence of the worksheet would, within what is described in Kocak, means that the MAC contains an error on the fact of the record, and as such, a demonstrable error.
(c) Ground 2 - one possible construction of the MAC in that in determining 5% WPI, the Medical Assessor did so by comparing the range of motion in the injured left shoulder to the range of motion in contra-lateral right shoulder. Such an approach would be consistent with the tabulation described at 4, and, possibly, with the following statement (at page 4 of the MAC): “With respect to the report by
Dr Endrey Walder dated 29 April 2024, I note that he has detected a full range of motion in the right shoulder, which was not the case at the time of my assessment. This accounts for the lower impairment at the time of my assessment”.(d) Based on the MAC, it is simply impossible to say whether the Medical Assessor did, or did not, follow cl 2.20 of the Guidelines, and further, if he did in circumstances where he formed the view that the contra-lateral joint had less than normal/uninjured motion, his rationale for doing so.
(e) In her statement the appellant states that she had previously injured her contra-lateral right shoulder. This is substantiated by the history recorded in the report of Dr Chee Leong Hiew, that the applicant suffered a total right supraspinatus tendon tear on 1 February 2016.
(f) The appellant’s ongoing difficulties with her right shoulder are further documented in the Certificate of Capacity of Dr Greg Schmaltz dated 15 July 2022 and the progress notes of Dr Gregory Schmaltz recorded on 5 April 2023.
(g) Whether the deficiency in the MAC is a product of the absence of the worksheet, and, or a failure of the Medical Assessor to provide adequate reasons, the same conclusion is inevitably reached, namely that the MAC does not comply with the requirements of Kocak and if it were the case that cl 2.20 was misapplied by the Medical Assessor, it would be an error within s 327(3)(c).
(h) If the Medical Assessor did deduct the contralateral right shoulder from the left shoulder that is impermissible in the circumstances of this matter, given that the contralateral right shoulder was not a “normal/uninjured” joint as discussed above. The reduction in impairment of the contralateral side is only permissible in circumstances where the joint is a “normal” joint, where given the history prior to injury, the appellant’s right shoulder was clearly not a “normal” joint. The Medical Assessor has not given reasons why he has chosen, if so, to deduct impairment of the right shoulder from the left, and further, why he considered the right shoulder to be a “normal” joint and why 2.20 of the Guidelines was allowed to be applied.
(i) Ground 3 - the 5% WPI for the left upper extremity as recorded at page 4 of the MAC, if reverted to an upper extremity impairment (UEI) percentage, would amount to a 9% UEI. However, there is no manner in which the range of motion measurements as recorded on page 3 of the MAC, for each motion unit can be added together to get a total of 9% UEI; even on the construction that the UEI was determined based on the difference between the range of motion of the left shoulder and right shoulder.
(j) The only inference that can be drawn from this discrepancy is that the Medical Assessor has made either a mathematical error in the addition of the UEI values contributed by each motion unit; or made an error in converting the aggregate UEI percentage to the WPI percentage.
(k) Conclusion - it is the view of the appellant worker that the correct WPI should be: 20% UEI = 12% WPI – AMA5 p 439, Table 16.3.
The respondent’s submissions include the following:
(a) Ground 1 – it was open to the appellant to write to the Commission to request a copy of the worksheet as opposed to (or at least prior to) lodging an appeal based on the Medical Assessor’s failure to provide same.
(b) Even in the absence of the worksheet, the Medical Assessor has provided sufficient information as to how he reached his findings. The Medical Assessor has explained at page 4 of the MAC that in accordance with AMA5, how his assessment of permanent impairment for the left shoulder was reached.
(c) In providing his or her reasoning, the Medical Assessor is not required to address every aspect of an independent medical report that has been referred to him or her and is entitled to exercise clinical judgment to determine the weight that is to be given to the findings of those reports. Moreover, as held in Bustos v Cleaners NSW Pty Ltd (in liquidation) [2019] NSWWCCMA 32, the Medical Assessor is entitled to their own independent assessment, and an assessor is not bound to follow and/or accept previous findings by doctors.
(d) The Medical Assessor’s assessment of impairment, which differed from that of
Dr Endrey-Walder and Dr Haig based on the range of motion recorded at the time of their examination, does not amount to a demonstrable error.(e) The assessment of the Medical Assessor was based on the appellant’s presentation on examination and the recorded range of motion in her shoulders.
(f) Ground Two - comparing the range of motion in both shoulders. It is evident from the methodology discussed above that the Medical Assessor has relied upon the differential range of motion between the injured left and contralateral right shoulders to make his assessment of impairment relating to the work injury at the left shoulder.
(g) It was reasonably open to the Medical Assessor to utilise the right shoulder as a baseline for the above purpose as there was nothing in the referred material to indicate that the right shoulder was impaired by the prior injury to a significant or even sufficient extent to render it an inaccurate baseline.
(h) To the contrary, it is the appellant’s own evidence that: • “In 2016, I experienced issues with my right shoulder, but it did not require specific treatment” (ARD p. 1). • “In 2016 [she] had issues with her right shoulder which, she emphasises, did not need specific treatment” (ARD p. 22). • “Testimony and radiological investigations would not suggest any significant preexisting pathology at her right shoulder” (ARD p. 24).
(i) Independent orthopaedic surgeon, Dr Ron Haig, similarly used the contralateral right shoulder as a baseline in his assessment. For each plane of movement, he deducted the impairment of the affected side from that of the unaffected side. This approach led to an UEI of 11% on the left side, which converted to 7% WPI (page 16 of the Reply).
(j) Ground Three: error in UEI calculation - the appellant submits that the Medical Assessor made a mathematical error in the addition of the UEI values or made an error in converting the aggregate UEI percentage to the whole person impairment percentage.
(k) The Medical Assessor recorded the appellant’s range of motion for both the left and right shoulders on page 3 of the MAC. In accordance with the AMA5 and based on the range of motion recorded by the Medical Assessor, the appellant was assessed with 20% UEI for the left shoulder and 9% UEI for the right shoulder.
(l) Based on an implied comparison of the range of motion in the injured left shoulder to that of the contralateral right shoulder, the Medical Assessor calculated that the appellant sustained 9% UEI, which according to Table 16.3 of the AMA5, converts to 5% WPI.
(m) The Medical Assessor made an obvious error in calculating the difference between the range of motion in the left and right shoulders, as subtracting 9% UEI from 20% UEI results in 11% UEI, and not 9% UEI.
(n) Using Table 16.3 of the AMA5 (page 439), the degree of impairment attributable to the appellant’s left shoulder should be 7% WPI (and not 5% WPI as calculated by the Medical Assessor).
(o) It is open to the appellant to seek a correction of this obvious error by applying to the President for a correction pursuant to Procedural Direction PIC7. However, the above correction will not change the ultimate outcome, which is that the appellant’s degree of permanent impairment falls below the minimum threshold of 11% WPI for any entitlement to lump sum compensation.
(p) Conclusion - the respondent opposes the application to appeal the findings of the Medical Assessor, and seeks that the assessment contained in the MAC be confirmed, subject to the addendum of the Medical Assessor’s worksheet and the correction of the Medical Assessor’s obvious calculation error which will result in the final permanent impairment assessment totalling 7% WPI for the left upper extremity.
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.
Ground 1 – Failure to attach worksheet
The Medical Assessor did not attach the worksheet that he referred to and stated he had attached (page 4 of the MAC). This appellant submits that this failure created an error of law because in the absence of the worksheet, it is simply not possible to follow the Medical Assessor’s reasoning process in arriving at a determination of 5% WPI, and, further, whether that reasoning process involves an error of law. The appellant argued that the MAC fails to comply with the requirement to provide adequate reasons as described in Wingfoot Partners (Aust.) Ltd v Kocak [2013] HCA 43 (Kocak) at [54] and [55].
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” (Kocak).
The Guidelines at cl 1.50 provide:
“1.50 The report should include a conclusion of the assessor, including the final percentage of WPI. This is to be included as the final paragraph in the body of the report, and not as a separate report or appendix. The report must include a copy of all calculations and a summary table.”
The Medical Assessor under “History Relating to the injury” noted that the appellant denied any previous injuries to her shoulders.
The Medical Assessor under “Findings on physical examination” noted:
“On examination she was a well looking woman in no obvious distress. Her range of motion in the shoulders was recorded as follows:
MOVEMENT
LEFT
RIGHT
Flexion
90°
170°
Extension
10°
40°
Abduction
10°
60°
Adduction
10°
20°
Internal rotation
80°
80°
External rotation
30°
60°
She had well healed arthroscopic portals around the shoulder. Her upper limbs were
neurovascularly intact.”
Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“Ms Richards fell at work and sustained injury to her rotator cuff. She has subsequently undergone a rotator cuff repair and has had a good result, albeit with some residual symptoms.”
Under “Reasons for Assessment” the Medical Assessor at 10.b wrote:
“Range of motion in the shoulders is assessed according to AMA 5 page 476 16.40,
477 16.43 and 479 16.46. On the basis of differential range of motion, 9% upper
extremity impairment was assessed for the left shoulder. According to AMA 5 page 439, Table 16.3, this converts to a 5% whole person impairment.
Worksheet/actual calculations attached? Yes.”
In commenting on other medical opinions, the Medical Assessor wrote:
“With respect to the report by Dr Haig dated 18 July 2024, we found slightly different
ranges of motion within error. He has assessed slightly higher impairment.
With respect to the report by Dr Endrey Walder dated 29 April 2024, I note he has
detected a full range of motion in the right shoulder, which was not the case at the time of my assessment. This accounts for the lower impairment at the time of my assessment.”
The appellant submits the Medical Assessor failed to explain his methodology of assessment as per Guideline 1.48.
As noted above Guideline 1.48 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.”
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” (Kocak).
The Appeal Panel accepts that the Medical Assessor failed to attach his worksheet showing his actual calculations to the MAC.
However, the Table of Movement on page 3 of the MAC under “Findings on Physical Examination” does provide all the necessary information required to explain the path of reasoning. The Appeal Panel, in those circumstances, considers that the failure to provide the work sheet was a demonstrable error but it was not a material error as all of the actual measurements required to measurements to make an assessment were contained within the body of the MAC. The Appeal Panel finds that the ground of appeal is not made out.
Ground 2 – incorrect application of the Guidelines
The appellant submits that based on the MAC, there was a failure to provide adequate reasons because it is impossible to say whether the Medical Assessor did, or did not, follow cl 2.20 of the Guidelines, and further, if he formed the view that the contralateral joint had less than normal/uninjured motion, his rationale for doing so.
The appellant submits that if the Medical Assessor did deduct the contralateral right shoulder from the left shoulder that is impermissible given that the contralateral right shoulder was not a “normal/uninjured” joint. The appellant argues that the Medical Assessor has not given reasons why he has chosen, if so, to deduct impairment of the right shoulder from the left, and further, why he considered the right shoulder to be a “normal” joint and why 2.20 of the Guidelines was applied.
The Guidelines at cl 2.20 provide:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joints in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA 5 Section 16.4c, p543).”
Chapter 16.4c of the AMA5 (page 453) states:
“If a contralateral ‘normal’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint.”
In a statement dated 24 October 2021, the appellant stated: “In 2016, I experienced issues with my right shoulder, but it did not require specific treatment.”
In a report dated 29 April 2024, Dr P Endrey-Walder, general and trauma surgeon, noted: “In 2016 [she] had issues with her right shoulder which, she emphasises, did not need specific treatment”. Dr Endrey-Walder expressed the opinion: “Testimony and radiological investigations would not suggest any significant preexisting pathology at her right shoulder that might have been aggravated or exacerbated by the accident.”
In a report dated 18 July 2024 Dr Ron Haig, orthopaedic surgeon, made the following assessment: “Based on loss of range of motion, there is an 11% upper extremity impairment which converts to 7% whole person impairment”.
In a supplementary report dated 27 September 2024, Dr Haig wrote:
“You are quite correct in assuming that I have considered the contralateral right unaffected shoulder as a baseline and deducted for each plane of movement the impairment from the affected side from the impairment of the unaffected side. That has led to an upper extremity impairment on the left side of 11%, which converts to 7%.”
The Appeal Panel notes that Dr Haig had calculated 18% UEI for the injured shoulder and 7% UEI for the contralateral extremity.
In her statement the appellant states that she had previously injured her contralateral right shoulder.
In the referral by Dr Chee Leong Hiew, treating general practitioner, to Dr Bateman dated
10 June 2022 Dr Hiew, under the “Past History Table”, noted that the applicant suffered “Supraspinatus Tendon Tear - Total (Right) small anterior full thickness tear” on
1 February 2016.In the Certificate of Capacity of Dr Greg Schmaltz dated 15 July 2023, he noted: “Her right shoulder has pain at times from favouring her left shoulder”.
The clinical notes of Dr Gregory Schmaltz dated 5 April 2023 state: “Her right shoulder has pain at times from favouring her left shoulder …mild discomfort with full range of motion of her right shoulder”.
The Appeal Panel accepts that the Medical Assessor did not explain, as required in cl 2.20, the rationale for his decision to use the impairment values corresponding to the uninvolved joint as a baseline and subtract from the calculated impairment for the involved joint. The failure to explain the rationale is a demonstrable error and application of incorrect criteria.
The Appeal Panel noted that the appellant had a restriction in abduction in the right shoulder in abduction of 60 degrees. Such a restriction would of itself indicate that this was probably an abnormal or injured joint. Further, the Medical Assessor failed to take into account the history of a supraspinatus tear in the right shoulder in 2016 and also complaints of overuse of right shoulder following the subject injury. The Appeal Panel finds that the failure to take this history into account as well as the restriction of 60 degrees of abduction in the right shoulder when deciding to use the right shoulder as a baseline was an error.
This ground of appeal is made out.
Ground 3 – error in calculation of WPI for the left shoulder
The appellant submits that the Medical Assessor has made either a mathematical error in the addition of the UEI values contributed by each motion unit; or made an error in converting the aggregate UEI percentage to the WPI percentage.
The respondent notes that the Medical Assessor assessed with 20% UEI for the left shoulder and 9% UEI for the right shoulder and based on an implied comparison of the range of motion in the injured left shoulder to that of the contralateral right shoulder, he calculated that the appellant sustained 9% UEI, which according to Table 16.3 of the AMA5, converts to 5% WPI.
The respondent concedes that the Medical Assessor made an obvious error in calculating the difference between the range of motion in the left and right shoulders, as subtracting 9% UEI from 20% UEI results in 11% UEI, and not 9% UEI.
The Appeal Panel agrees that the Medical Assessor made a demonstrable error in the calculation of WPI in the left shoulder and finds that using Table 16.3 of the AMA5 (page 439), the degree of impairment attributable to the appellant’s left shoulder should be 7% WPI (and not 5% WPI as calculated by the Medical Assessor).
This ground of appeal is made out.
Having found error, the Appeal Panel notes that there was no dispute concerning the examination findings made by the Medical Assessor. The Appeal Panel therefore assesses 20% UEI of the left shoulder which results in 12% WPI. The Appeal Panel makes no deduction in respect of the contralateral right shoulder, as this joint is not a “normal or uninjured” joint and cannot be used as a baseline. The Appeal Panel therefore assesses 12% WPI of the left upper extremity.
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: | W27773/24 |
Applicant: | Rachel Richards |
Respondent: | Baptistcare NSW & ACT |
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.Left upper extremity | 12/05/2022 | P476 16.40 P477 16.43 P479 16.46 | 12% | 0 | 12% | |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0
2
0