Russell v Toll People
[2025] NSWPICMP 88
•13 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Russell v Toll People [2025] NSWPICMP 88 |
| APPELLANT: | Kenneth Russell |
| RESPONDENT: | Toll People |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Todd Gothelf |
| DATE OF DECISION: | 13 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal from Medical Assessor (MA) alleging failure to examine referred anatomy and examination of unreferred anatomy; whether MA recorded accurate history; whether findings on examination related to referral; whether finding of impingement was consistent with examination to the contrary; appeals by worker and employer; Held – re-examination arranged; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 July 2024 Kenneth Russell, the worker, 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 24 June 2024.
On 22 July 2024 Toll People, the employer, also filed an Application to Appeal Dr Kuru’s MAC.
The M1 appeal is that of the worker, and the M2 appeal is that of the employer.
Both appellants rely 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 each 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 appeals were 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 9 April 2024 this matter was referred to the Medical Assessor for a WPI assessment of the cervical spine and right upper extremity following injury on 15 June 2021. Mr Russell at the time of his injury was employed as a transport driver for the respondent.
On the injury date he was involved in a motor vehicle accident when a van cut in front of his vehicle. When he heard a union delegate discussing the incident around two weeks later, he consulted a general practitioner (GP). He underwent physiotherapy with manipulation to his neck.
The Medical Assessor assessed a 6% WPI for the impairment to the cervical spine and 2% for the impairment to the right upper extremity resulting in a combined value table of 8% WPI.
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 Mr Russell should undergo a further medical examination because the Medical Assessor fell into error in his assessment, as explained below.
Fresh evidence
In his appeal, Mr Russell sought to lodge a statement he had signed on 15 July 2024, which complained about various aspects of the assessment interview with the Medical Assessor. As the Panel has found error in the reasons given and decided that a re-examination is necessary, there is no point in reviewing Mr Russell’s application to admit fresh evidence, as the result, if successful, would have been a re-examination in any event. Such a review would have thus been otiose.
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 Assessor Todd Gothelf of the Appeal Panel conducted an examination of the worker on 25 November 2024 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 which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
The history taken by the Medical Assessor was at [4] of the MAC:
“On the date of injury, Mr Russell was driving on Industrial Drive. A van cut in front of him. He hit the brakes but impacted the rear of the van. He says his head struck the window.
Mr Russell told me around 2 weeks later on a Saturday, he was sitting in the lunch room at work. A union delegate was there discussing the incident. Giventhe ongoing pain in the right side of his neck, he was then reviewed by the Work Doctor. He was sent to the Physiotherapist who started treating his neck with manipulation.”
The findings on examination were as follows, at [5]:
“At the commencement of the examination, Mr Russell was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.
On examination, he was a well looking man in no obvious distress.
Romberg’s test is negative. Trendelenburg’s test is normal. Heel-toe stance is normal. Neurological examination of the lower limbs demonstrates symmetrical reflexes. Upper limb reflexes similarly are symmetrical with negative Hoffman test. Peripheral power is intact.
There was a full range of symmetrical movement in both shoulders. Impingement tests for the shoulders are negative.”
As to his assessment, at [10b], the Medical Assessor said:
“The cervical spine was assessed according to AMA-5, page 392, Table 15-5 as DRE Cervical Category II (5% whole person impairment). A further 1% was added for restriction of activities of daily living as per SIRA, page 28, paragraph 6.34, giving 6% whole person impairment.
According to SIRA, page 12, paragraph 2.16, 2% whole person impairment is assessed for positive findings of impingement in the right shoulder.”
MR RUSSELL’S APPEAL M1-W8690/23
Submissions
Appellant
Mr Russell referred to Chapter 1.6 of the Guides inasmuch as it required a full and proper examination of the applicant to occur. We were referred to the findings on examination by the Medical Assessor, the first paragraph of which Mr Russell submitted was of a generic nature and left some doubt as to whether it related to the actual examination.
It was submitted that it was “not clear” if a tape measure or goniometer had in fact been used. Mr Russell submitted that there was no report of the examination of his cervical spine. We were referred to nature of some tests described on examination, which Mr Russell submitted were not relevant, as they concerned the lower extremities, and not part of the medical dispute. Mr Russell submitted that with regard to the upper limbs, no record was made of measurement, of what equipment was used, or whether the measurements were repeated.
Mr Russell submitted that both medical legal experts, Professor Ghabrial and Dr Machart, had conducted extensive tests, the outcomes of which had been recorded. He submitted that it was “highly unusual” that an assessment would not contain any recordings of the findings or how the examination was conducted.
With regard to the cervical spine, Mr Russell again submitted that both medical and legal experts recorded their examinations and commented on the radiological evidence in contrast to the absence of such references by the Medical Assessor.
It was further submitted that the Medical Assessor had failed to assess radiculopathy, as required by Chapter 4.27 of the Guides. It was also submitted that the Medical Assessor had failed to consider the activities of daily living in respect of the modifiers available under Chapters 1.24, 4.4 and 4.33 of the Guides.
Respondent’s submissions
The respondent submitted that although Mr Russell had relied on Chapter 1.6 of the Guides, he had failed to explain in what respect the Medical Assessor had failed to apply its provisions.
In response to the assertion that the first paragraph of the examination findings were simply a generic description of how measurements were made, the respondent submitted that as the Medical Assessor had specifically referred to the methods therein described, it followed that the Medical Assessor must have used them. A failure to indicate whether tests were performed or not, it was submitted, did not amount to the application of incorrect criteria or an error. Moreover, the appellant had failed to specify precisely how the Medical Assessor had failed to apply the guideline.
The respondent posed various propositions as to whether the matters raised by Mr Russell constituted a demonstrable error or the application of incorrect criteria. It submitted that the Medical Assessor had only failed to comply with Chapter 1.6 of the Guides in the way it was articulated in the respondent’s appeal.
The respondent submitted that there was “insufficient information to support a ground of appeal” as to whether there had been an adequate assessment.
The respondent relied on the proposition that the presumption of regularity, as expounded in Kitanovska v Coles Group Limited,[1] was applicable to the actions of the Medical Assessor.
[1] 2016 NSWWCC MA90.
In relation to the appellant's submissions regarding the cervical spine, we were referred to various portions of the MAC in which the Medical Assessor mentioned the cervical spine. It was submitted that the Medical Assessor’s reference to upper limb reflexes somehow were relevant to an examination of the cervical spine. Again the respondent relied on the presumption of regularity to overcome the complete absence of any report on examination.
With regard to the alleged “requirement” for the Medical Assessor to consider the provisions of Chapter 4.27 (which defines radiculopathy), the respondent submitted that the Medical Assessor had carried out an assessment of the cervical spine because he recorded his findings of symmetrical upper limb reflexes and intact peripheral power, both tests being relevant to the question of whether radiculopathy was present. There was no requirement for Chapter 4.27 to be specifically examined, it was argued, as if radiculopathy was present clinically, then such an enquiry would be made, but the Medical Assessor did not make such a clinical finding. The respondent noted that Professor Ghabrial, whilst he found radiculopathy, did not address the specific terms of Chapter 4.27.
The respondent submitted that simply because the Medical Assessor did not record a specific examination or state his views about radiological evidence, an inference was not available that the testing undertaken was any less comprehensive or that he failed to have regard to the radiological evidence in question. We were referred to Mahenthirarasa v State Rail Authority of New South Wales and Ors[2] regarding the well-established principle that a difference of opinion is not sufficient to establish error.
[2] [2007] NSWSC 22.
With regard to Mr Russell's submission regarding the failure by the Medical Assessor to apply Chapters 1.24, 4.4 and 4.33, or that he misapplied them, the respondent submitted that Mr Russell had “not articulated” how the Medical Assessor had failed to apply them. It was therefore submitted that there was insufficient information to support any ground of appeal in this regard. It was self-evident that the Medical Assessor had in fact considered these Chapters because he did award a further 1% WPI for the restriction in the appellant’s ability to perform the activities of daily living, the respondent said.
As to the failure by the Medical Assessor to clarify whether he had used a goniometer or tape measure, the respondent submitted that such an argument was insufficient to demonstrate error by the Medical Assessor. In any event the respondent again relied on the presumption of regularity to submit that proper measurements could be presumed to have been taken.
We were referred to Chapter 2.5 of the Guides and it was submitted that a failure to use a goniometer did not indicate the application of incorrect criteria.
The respondent made submissions regarding the concept of demonstrable error relying on the uncontroversial statements in Merza v Registrar Workers Compensation Commission[3] and Marina Pitsonis v Registrar Workers Compensation Commission.[4]
[3] [2006] NSWSC 939 at [30] (incorrectly cited).
[4] [2007] NSWSC 50 at 59.
The respondent concluded by submitting that Mr Russell had not demonstrated that the MAC was affected by error or the application of incorrect criteria, “let alone that would have resulted in a higher WPI..” The appellant, it was submitted, had been “presumptuous” to assert that a higher WPI would have been obtained, when there was no support for such a submission in the MAC.
THE APPELLANT EMPLOYER’S APPEAL M2-W8690/23
The appellant employer submitted in its preface that the Medical Assessor did not record a history of an injury dated 27 October 2021.
It submitted that the Medical Assessor erred when he found 2% WPI for impingement of the right shoulder. We were again referred to the uncontroversial authority as to what constitutes a demonstrable error and the application of incorrect criteria, and it was asserted that the Medical Assessor had failed to conform to the provisions of Chapter 2.16 of the Guides regarding impingement diagnosis and Chapter 1.6 regarding the assessment itself.
The Medical Assessor had erred in finding a 2% WPI impingement in the right shoulder when on examination he stated he had found negative impingement. Moreover, it was argued that the Medical Assessor had applied incorrect criteria, as Chapter 2.16 required a positive finding of impingement to qualify such an assessment. The assessment should therefore have been 0% WPI, it argued.
The appellant employer also maintained that the Medical Assessor had erred by failing to apply Chapter 1.28 of the Guides and s 323 of the 1998 Act. It referred to the results of imaging taken within a few days of the injury. The MRI demonstrated pathology which indicated that Mr Russell’s degenerative conditions pre-existed the injury. A deduction should have been made, it was submitted, regarding the right shoulder and the cervical spine. Dr Machart had eventually assessed a deduction of 10% whilst Dr Ghabrial made no deduction. This dispute accordingly called for comment by the Medical Assessor and a finding as to whether a deduction was appropriate pursuant to s 323 of the 1998 Act. However, the Medical Assessor had not accounted for this evidence, ”or even addressed it in the MAC.”
We were referred to Marks v Secretary, Department of Communities and Justice (no.2)[5] in that regard.
[5] [2021] NSWSC 616.
Respondent worker submissions
Mr Stephens concurred with the appellant employer’s submission that the Medical Assessor’s findings regarding the right shoulder were internally inconsistent with the assessment given, and that adequate reasoning had not been given to explain that apparent contradiction.
Moreover, the acceptance by the Medical Assessor of Dr Machart’s report indicated that he agreed with the diagnosis of rotator cuff impairment, but he did not appear to have assessed the rotator cuff at all.
As to the submission that the Medical Assessor had erred by not making a s 323 deduction, Mr Russell said that the Medical Assessor had explicitly found that no pre-existing condition affected the current impairment.
In the circumstances a fresh examination was the only remedy in view of the problems raised.
DISCUSSION
It can be seen that both parties are unhappy with the MAC. We are unable to accept the employer’s submissions that the presumption of regularity was able to cure the errors identified by Mr Russell. Presumptions are rebuttable, and the complete failure to examine the cervical spine is sufficient evidence to overcome any such presumption. We do not agree that the Medical Assessor’s examination of the shoulders could be seen as an adequate examination of the cervical spine. He found a DRE category II impairment, and added to it a 1% impairment for the restriction of the activities of daily living. There was no commentary from the Medical Assessor to explain his assessment in terms of the DRE category II finding, nor the restrictions he apparently found.
Moreover, his examination findings that were recorded were, with respect, inadequate. We agree that the descriptions at [5] of the MAC were generic. The statement that all movements were measured using a goniometer and confirmed by repetition, “if necessary,” and that a tape measure was used “as required” does not engender confidence that the Medical Assessor was reporting on any actual measurements he took.
A further matter of concern was that the Medical Assessor related the results of a Romberg’s test and Trendelenburg’s test. He further spoke about “heel-toe stance” and a neurological examination of the lower limbs. All these matters concerned the lower limbs, and the Medical Assessor did not explain why he tested in that area when Mr Russell’s claim was referred for assessment of only the “cervical spine, right upper extremity.”
In addition, the Medical Assessor related a history that, as will be seen, does not appear to reflect all the relevant facts. The history given by the Medical Assessor was, to repeat:
“On the date of injury, Mr Russell was driving on Industrial Drive. A van cut in front of him. He hit the brakes but impacted the rear of the van. He says his head struck the window. Mr Russell told me around 2 weeks later on a Saturday, he was sitting in the lunch room at work. A union delegate was there discussing the incident. Given the ongoing pain in the right side of his neck, he was then reviewed by the Work Doctor. He was sent to the Physiotherapist who started treating his neck with manipulation.”
In his statement of 14 November 2023,[6] Mr Russell said:
“4. On 15 June 2021, during my employment, I was diving 60km/h on the main road into Newcastle. I was cut off by a car that darted in front of me, and I ran into the back of the car.
5. Following the incident, I called and reported the incident to my boss.
6. Two drivers witnessed the incident and stayed with me until my boss arrived approximately 10-15 minutes after.
7. I did not feel pain immediately, however as the day went on, I felt my shoulder become stiffer. The next day I started to feel an 'electric shock' kind of pain that radiated down the right side of neck and into my shoulder.
8. A few days after the incident, I continued to experience pain and contacted my supervisor. My supervisor did not help to organize a doctor. I only saw a doctor after I got into contact with my union delegate, four weeks after the incident.
……
12. This injury was aggravated on or about 27 October 2021.”
[6] Appeal papers page 80.
Mr Russell explained that he had a further accident in his truck which caused symptoms in his neck.
The history taken by Professor Ghabrial on 14 November 2022 was as follows:[7]
“The 1st injury was on the 15th June 2021. He sustained injuries to the neck and the right shoulder as a result of that injury. He had MRI scanning performed to the cervical spine and the right shoulder and he had a few injections to the neck and the rights shoulder. This gave me him reasonable help and he returned to work on the 23rd September 2021 as a truck driver.
He had a further injury on the 27th October 2021 when the automatic brake came on suddenly causing him to jar his right shoulder and neck. His symptoms continued since then.”
[7] Appeal papers page 98.
The history taken by Dr Frank Machart on 31 March 2023.[8] Dr Machart recorded the motor vehicle accident of 15 June 2021 as follows:[9]
“He suffered injury in a motor vehicle accident on 15/06/2021. He was trying to change lanes. He was cut off by a van. His truck collided with the van at a speed of 45 km per hour. He wore a seatbelt. He suffered pain in the right shoulder and neck.
Ambulance did not attend. The truck was drivable. He drove to the workshop. He did nothing strenuous over the following week . He saw a doctor a week later and he had xrays and scans. He was treated by physiotherapy and by analgesics. There was no improvement. He returned to normal work, 3 weeks later.
There was another incident on 23/10/2021 Brakes locked. His body was pushed into the seatbelt. He jarred his neck. He denied having suffered injury to the right shoulder. The symptoms quickly returned to where they were unresolved prior to 27/10/2021. No permanent increase in symptom level. He saw a doctor. He continued normal work.”
[8] Respondent reply, page 9 - 10.
[9] Respondent reply, page 10.
The Panel cannot be sure that the Medical Assessor proceeded on a correct history. He did not record the second injury of 27 October 2021, mentioned by both Mr Russell himself in his statement, Dr Ghabrial and Dr Machart (although the date was slightly different). Further, we are at a loss to understand the relevance of the history regarding Mr Russell's sitting in the lunchroom where a union delegate was discussing the incident.
In view of the number of errors it was decided that the appeal could only be determined after a re-examination had occurred. Accordingly, Mr Russell was re-examined by Medical Assessor Todd Gothelf of the Panel. His report follows:
Matter Number: | M1-W8690/23 |
Applicant worker: | Kenneth Russell |
Date of MAC: | 29 November 2024 |
Medical Assessor: | Todd Gothelf |
Specialty: | Orthopaedics |
1.DETAILS OF MATTERS REFERRED FOR ASSESSMENT
The following matters have been referred for assessment (s 319 of the 1998 Act):
·Date of injury: 15 June 2021
·Body parts/systems referred: Cervical Spine and Upper Right Extremity
·Method of assessment: Whole Person Impairment
2.EVIDENCE
Documentary Evidence
All documents referred by the Commission for this assessment have been reviewed. Of particular interest were the following:
·14 November 2022 – IME Report, Dr YAE Ghabrial, Orthopaedic Surgeon
oMr Russell sustained injuries to his neck at work on the 15th June 2021. As well as injured his right shoulder as a result of that accident. He had a severe aggravation on the 27th October 2021.
oClinical assessment and investigations suggested C5/6 moderate disc bulge with evidence clinically of radiculopathy in the right arm consistent with the C6 nerve root.
oRegarding the right shoulder he had a large partial tear of the rotator cuff.
oWPI 21%
§Cervical spine, DRE III for right C6 radiculopathy with weakness of the right arm, 15%
§2% for ADLs
§Right shoulder 9% UEI converts to 5% WPI.
§Total 21%, no deductions.
·31 March 2023 – IME Report, Dr Frank Machart, Orthopaedic Surgeon
oSoft tissue injury to cervical spine and right shoulder at the time of the MVA on 15/06/2021. Aggravation on 27/10/2021. The narrative not suggestive of cause any permanent damage on 27/10/21. There is evidence of prior injury to the right shoulder in January 2021.
oRotator cuff disruption a to the right shoulder which could have been caused by the MVA, more likely a degenerative condition, symptoms evident earlier in 2019 or 2021, not clear if one, or other, or both.
oMultilevel cervical spondylosis aggravated by the injury. There is no indication that there was damage to nerves, as per MRI and as per clinical examination by the GP.
oTreatment: Occasional over the counter analgesics. Self-directed exercises. No structured or interventional treatment.
oWPI 8%
§Cervical spine DRE II 6% with 1% loading no deductions
§Right shoulder 2% WPI.
§Deduction 1/3 for pre-existing conditions.
·10 May 2023 – Report, Dr YAE Ghabrial, Orthopaedic Surgeon
oMr Russell had no previous injuries to either his neck or right shoulder.
oRegarding the accident on the 27th October 2021, I believe that the physical condition is caused by the injuries on the 15th June 2021.
·7 March 2024 – Supplementary Report, Dr Frank Machart, Orthopaedic Surgeon
oCervical spine: DRE category II, 6% WPI. Deductions: 1/10 for pre-existing spondylosis.
oRight Shoulder: Assessed as per impingement, 2% WPI. Deduction: 1/10 rather the ⅓, which does not alter the 2% WPI.
oCombined WPI 7%
·24 June 2024 – MAC, Dr Rob Kuru, Orthopaedic Surgeon
oMr Russell was involved in a motor vehicle accident whilst driving at work. He subsequently had ongoing pain in his neck and right shoulder.
oCervical spine: 6% whole person impairment. Right upper extremity: 2% whole person impairment.
oNo deductible portion.
Additional Information
The following information was obtained in accordance with Section 324(1) of the 1998 Act:
·There was no further documentation
List any imaging studies provided by the worker which were not listed in the documentation provided:
·There was no further imaging.
3.WORKER’S DETAILS INCLUDING
·Date of examination: 29 November 2024
·Date of birth and age at examination: 23 March 1959, age 65.
·Hand dominance: Right hand dominant
·Details of who attended the examination: Mr Russell attended unaccompanied.
·Date of injury: 15 June 2021
·Employer and occupation: Toll Group
4.HISTORY RELATING TO THE INJURY
·Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Kenneth Russell stated that the injury occurred 15 June 2021. Mr Russell was driving 60 km/hr on the main road into Newcastle. He was cut off by a car that darted in front of him, and Mr Russell then ran into the back of the car.
Mr Russell stated that he did not feel pain immediately. However, as the day progressed he felt pain in his right shoulder, and the next day he felt an electric shock of pain down his right side of neck into his right shoulder.
Mr Russell attended physiotherapy sessions and returned to pre-injury duties 23 September 2021.
27 October 2021
Mr Russell indicated that he was driving on Lake Road in Carter when he turned at a set of traffic lights moving around 35 km/hr and the automatic braking system went on, causing the truck to come to a halt. His body jolted forward, and he had instant pain in his neck with an electric shock down his right arm. Mr Russell drove himself back to the yard and reported the incident.
Mr Russell was seen by Dr Matthew MacDonald around three weeks after the injury June 2021 and saw him monthly until the end of 2022. Physiotherapy was recommended. Mr Russell had one cortisone injection.
Mr Russell underwent a cortisone injection in late 2021 which helped for a few days.
Mr Russell was asked about the right shoulder. There was no specific treatment, and the pain was the neck pain going down the right arm to the shoulder.
·Present treatment:
Mr Russell is no longer doing any treatments.
·Present symptoms:
Mr Russell rated the cervical spine pain as a three on a scale of zero (no pain) to ten (the worst pain imaginable) and constant and the pain worse with any physical activities. The pain is in the neck and radiates to the right shoulder blade. He also gets pins and needles in the right hand.
Mr Russell reported pain in the shoulder joint with movements.
·Details of any previous or subsequent accidents, injuries or condition:
Mr Russell denied any previous work-related injuries and denied any major motor accidents resulting in injury. He denied any problems with cervical spine or right shoulder prior to the subject injury 15 June 2021.
There was no evidence of a subsequent injury or accident.
·General health:
Mr Russell is a 65-year-old male in general good health. Mr Russell has no past medical illnesses. Mr Russell had open heart surgery in 2015, for heart disease. Mr Russell denied smoking cigarettes and denied drinking alcohol regularly.
·Work history including previous work history if relevant:
Mr Russell has been a truck driver for over forty years.
Mr Russell was employed by Toll Group at the time of the subject injury 15 June 2021. His position was transport driver, and the hours were full time, forty hours a week. He started working for this company around 2016. His daily tasks involved mainly driving, The work involved little physical work.
After the subject injury 15 June 2021, Mr Russell remained on light duties and then returned to full duties in September 2021. In October 2021 he had a recurrence of pain, and he went for treatment and remained at light duties and then returned to full duties. Mr Russell was sacked three years ago. Mr Russell picked up a casual job three days a week, not working with truck driving and is now supervising. He is tolerating his work well.
·Social activities/ADL:
Mr Russell lives in a house with his mother, age 86. Mr Russell is able to shower and dress. Mr Russell is unable to mow the lawn due to shoulder pain. Mr Russell stated he can do odd jobs in the house for his mother when needed. He was able to drive to this assessment from Newcastle.
5.FINDINGS ON PHYSICAL EXAMINATION
Passive range of motion formed part of the clinical examination to ascertain clinical status of the joint. For the purposes of impairment calculation, only active movement (i.e. performed under the voluntary control of the examinee, without physical input by the examiner) was measured and recorded below. Determinations were made in accordance with the patient’s apparent full effort and cooperation.
Mr Russell is a 65-year-old male right hand dominant whose height was 172 cm and weight was 90 kg (BMI 30.4- Obese). He was observed to sit and stand and was in no apparent distress.
Examination of the Cervical Spine
The cervical posture was normal. There was no reported tenderness to palpation of the neck spinous processes or paraspinal muscles. There was no visible or palpable deformity in the neck region. There was no observed muscle spasm or guarding. Cervical movement was a fraction of the normal range of motion of full cervical extension, full flexion, full right rotation, ½ full left rotation, full right lateral flexion, and ½ full left lateral flexion. There was positive cervical asymmetrical loss of motion.
Examination of the Upper Limbs
There was a full range of movement of elbows and wrists of both the upper limbs in all dimensions without crepitus, muscular spasm or tenderness. Power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal.
There was no wasting or swelling of the upper limbs, and the circumferential measurements were as follows:
Right Left
Upper Arm 32 cm 32 cm
Mid-forearm 27 cm 27 cm
Active range of motion was measured with a goniometer:
Upper Limb
| Shoulder | Right(0) | IMP | Left(0) | IMP | Normal(0) |
| Flexion | 160 | 1 | 170 | 1 | 180 |
| Extension | 50 | 0 | 50 | 0 | 50 |
| Abduction | 140 | 2 | 170 | 0 | 170 |
| Adduction | 40 | 0 | 40 | 0 | 40 |
| Internal Rotation | 60 | 2 | 70 | 1 | 80 |
| External rotation | 80 | 0 | 90 | 0 | 60 |
The right shoulder had a smooth passive range of motion with no reported impingement signs, and normal rotator cuff strength.
6.DETAILS AND DATES OF SPECIAL INVESTIGATIONS
13 September 2018 – Ultrasound Left Shoulder
Linear changes in the proximal, anterior and mid supraspinatus could represent delaminating partial tear which is favouring or linear calcification which is less favoured. No full thickness pathology or impingement on the day of scanning.
11 January 2019 – X-ray Right Shoulder
No fracture or joint displacement. Moderate osteoarthritis acromioclavicular and glenohumeral joint. There is also prominent degenerative spurring of the greater tuberosity. No rotator cuff calcification or other periarticular soft tissue abnormality.
Good subacromial arch space. Type 2 acromion.
11 January 2019 – Ultrasound Right Shoulder
Subacromial impingement and focal tendinosis distal supraspinatus.
3 March 2021 – X-ray Hand Left
No fracture or dislocation identified. Surgical clip is noted along with the volar aspect adjacent to the distal radius.
24 June 2021 – CT Guided Joint Injection prior to MRI arthrogram
24 June 2021 – MRI Arthrogram Right Shoulder
Large full-thickness tear in the anterior to mid supraspinatus tendon with background prominent tendinopathy. There is glenohumeral joint osteoarthritis with chondral loss and marginal osteophytic lipping. The long head of biceps tendon is perched medially. The subscapularis tendon demonstrates tendinopathy but no tear. There is AC joint osteoarthritis.
24 June 2021 – MRI Cervical Spine
Degenerative findings affecting the facet joints and intervertebral discs without significant spinal canal or neural foramina! narrowing or stenosis. No sign of nerve impingement evident. There is oedema surrounding the right C2/3 facet joint, which could represent post-traumatic bone contusion/ facet joint strain.
21 September 2021 – CT Guided Facet Joint Injection
7.SUMMARY
·summary of injuries and diagnoses:
Mr Russell is a 65-year-old male who sustained an injury at work 15 June 2021. As a result of the subject injury Mr Russell has the following diagnoses:
·Cervical spine strain, soft tissue injury. An MRI of the cervical spine 24 June 2021 revealed degenerative spine of the facet joints and intervertebral discs without significant spinal canal or neural foraminal narrowing or stenosis. Treatment involved a facet joint injection and physiotherapy. Mr Russell reported persistent pain and worse with physical activities. The physical examination revealed positive asymmetrical loss of motion and non-verifiable radicular complaints, with no evidence of a radiculopathy.
·Right shoulder strain, soft tissue injury. An MRI arthrogram of the right shoulder 24 June 2021 revealed a large full-thickness tear of the anterior mid supraspinatus tendon both a background tendinopathy, glenohumeral arthritis with chondral loss and marginal osteophytic lipping. Treatment involved physiotherapy and injections. Mr Russell reported no specific shoulder pain. The physical examination revealed a loss of active motion compared to the normal side.
·consistency of presentation
The history is consistent with the physical examination findings and is consistent with the documentation provided. The diagnosis of injuries is consistent with the mechanism of injury and is consistent with the current status of the condition.
8.EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a.Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body par/system: NO
b.Have all body parts/systems stabilised/reached maximum medical improvement? YES
c.If not, please list those injuries not yet stable/at maximum medical improvement: N/A
d.If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? N/A
e.Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? YES
f.If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Right Shoulder, Cervical Spine
9.THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
The history obtained, physical examination findings and review of the documentation.
10.REASONS FOR ASSESSMENT
a.My opinion and assessment of whole person impairment
The Final Whole Person Impairment is 7% WPI.
In making that assessment I have taken account of the following matters:-
The history obtained, physical examination findings and review of the documentation.
b.An explanation of my calculations (if applicable)
Impairment is to be determined using the NSW Worker’s Compensation Guidelines for the evaluation of permanent impairment, Fourth edition, 1 March 2021 (the Guides), and the AMA Guides to Evaluation of Permanent Impairment 5th Edition (AMA 5).
Cervical Spine
Section 15-5 p 392 AMA5 is used. A DRE II applies as there was positive asymmetrical loss of motion and non-verifiable radicular complaints. There was no evidence of a radiculopathy that satisfied the SIRA section 4.27 criteria. Specifically, there was no loss or asymmetry of reflexes, no muscle weakness, no reproducible impairment of sensation, no nerve root tension signs, no muscle wasting, and no signs of nerve impingement on imaging. Thus a 5-8% WPI applies. Section 4.35 p 28 the Guides is used for ADLs. Mr Russell indicated that he was capable of self care, and cared for his mother in the house. He was able to perform lighter home duties, but was unable to perform heavier tasks such as gardening. I consider that a 1% loading is reasonable, resulting in a 6% WPI.
Deductions
According to section 1.27 and 1.28, page 6 of the Guides, the degree of permanent impairment should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as “the deductible portion” and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.
In the case the following factors were considered:
·The described injury was from a motor accident. Mr Russell stated that he did not feel pain immediately. He continued to work.
·An MRI of the cervical spine 24 June 2021 revealed degenerative findings of the facet joints and without significant spinal canals or neural foraminal narrowing or stenosis, no nerve impingement, and oedema around the C2/3 facet joint.
·There were no symptoms prior to the subject injury.
Considering the above factors, the pre-existing condition of a degenerative cervical spine contributed to the final impairment, as the presence of degenerative changes likely led to the more permanent nature of symptoms. In the absence of the degenerative changes, the symptoms of the soft tissue injury would likely have resolved over time. I consider that in this case a 1/10th deduction is reasonable. 6%- 0.6% =5.4 % WPI which rounds to 5% WPI.
Right Upper Extremity (Shoulder)
Figures 16- 40, 43, 46 pp 476-479 AMA5 are used for shoulder impairment. The measured active range of motion resulted in a 5% UEI for the affected right shoulder and a 2% UEI for the unaffected left shoulder. As per section 2.20 p 12 the Guides, one must always compare the opposite normal shoulder when there is less than average mobility, and the impairment is subtracted. 5%- 2% = 3% UEI. Table 16-3 p 439 AMA5 is used to convert 3% UEI to 2% WPI.
Deductions
The following factors were considered:
·Mr Russell indicated there was no specific shoulder injury as a result of the subject injury.
·The MRI of the right shoulder 24 June 2021 revealed a large thickness tear of the supraspinatus tendon.
·Considering the history and mechanism of injury, it is likely that the presence of a rotator cuff tear was chronic and that any injury to the right shoulder was a soft tissue injury.
As the right shoulder was already compared to the left shoulder and impairment subtracted, no further deduction is warranted here.
Combining
Cervical Spine 5%
Right UE 2%
Combining 5% and 2% yields 7% WPI.
The Final Whole Person Impairment is 7% WPI.
Worksheet /actual calculations attached? NO
c.My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I have reviewed the reports of Dr Ghabrial dated 14 November 2022, 10 May 2023 and make the following comments:
·Dr Ghabrial assessed a cervical spine DRE III with right C6 radiculopathy. The physical findings at this assessment did not demonstrate a radiculopathy.
·Dr Ghabrial assessed a 2% loading for ADLs, while I assessed a 1% as Mr Russell was capable of performing light home duties.
·Our assessment of right shoulder impairment differed due to differences in the measured active range of motion on the day of assessment. I applied section 2.20 comparing the opposite shoulder while Dr Ghabrial did not.
·Dr Ghabrial did not apply any deductions for pre-existing conditions. I applied a deduction for the cervical spine.
·I have reviewed the reports of Dr Machart dated 31 March 2023 and 7 March 2024 and make the following comments:
·I agree with a DRE II assessment for the cervical spine. I have arrived at a similar 1% loading and a 1/10th deduction.
·Dr Machart arrived at at a similar impairment of 2% for the right shoulder, although with a slightly different method.
·We arrived at a similar impairment of 7% WPI
·I have reviewed the MAC of Dr Kuru, Orthopaedic Surgeon 24 June 2024, and make the following comments:
·We arrived at a similar DRE II for the cervical spine, with a 1% loading. I applied a 1/10th deduction and Dr Kuru did not apply a deduction.
·We arrived at a similar 2% WPI for the right shoulder.
d.I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a.In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Degenerative cervical spine.
b.The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)The degenerative cervical spine contributed to the ongoing symptoms of the cervical spine, contributing to the ongoing impairment.
c.The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)
We adopt Medical Assessor Gothelf’s report. It can be seen that there has been little change to the MAC assessment, once the examination had been properly conducted and reported, a proper history obtained, and the correct parts of the anatomy assessed.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 June 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W8690/23 |
Appellant: | Kenneth Russell |
Respondent: | Toll People |
Mater Number: | W8690/23 |
Appellant: | Toll People |
Respondent | Kenneth Russell |
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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical Spine | 15/6/21 | 4.35, 4.27 | 15-5 | 6% | 1/10th | 5% |
| Right Upper Extremity | 15/6/21 | 2.20 | 16- 40, 43, 46 | 2% | 0 | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
5
0