Ryles v Winifred West Schools Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Ryles v Winifred West Schools Limited [2023] NSWPICMP 208
APPELLANT:	Robert Ryles
RESPONDENT:	Winifred West Schools Limited
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	16 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Injury to bilateral upper extremities; worker appealed submitting that the Medical Assessor (MA) made a demonstrable error and made an assessment of the basis of incorrect criteria; the role of the MA is to make an independent assessment on the day of examination in accordance with the Guidelines; the MA appeared to base his assessment on a mid-range point between the opinion of the Independent medical expert (IME) qualified on behalf of the applicant and the IME qualified on behalf of the respondent; a re-examination was considered necessary in the circumstances; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL AND RESCONSIDERATION

On 20 July 2022 Mr Robert Ryles (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
21 June 2022.
The appellant relied on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The Appeal Panel issued a decision which revoked the MAC. The Appeal Panel’s decision is now the subject of an application for reconsideration by the respondent employer.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. The appellant requested a re-examination. As a result of that preliminary review, the Appeal Panel determined that the worker needed to undergo a further medical examination because the Appeal Panel found error.

Fresh evidence

The appellant sought to rely on additional evidence namely a statement of the appellant dated 18 July 2022. It is noted the respondent did not object to the additional evidence. The Appeal Panel had earlier referred to the respondent employer objecting to the additional evidence, but it was not objected to. In an event, the Appeal Panel had determined that the statement of the appellant dated 18 July 2022 should be received on appeal.

EVIDENCE

Documentary evidence

The Appeal Panel had before it all the documents that were sent to the Medical Assessor for the original medical assessment as well as the statement of the appellant dated 18 July 2022 and took them into account.

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.

Further medical examination

Dr Brian Stephenson of the Appeal Panel conducted an examination of the worker on
9 November 2023 and reported to the Appeal Panel.

SUBMISSIONS

Only the appellant made written submissions on the original appeal. It is noted that the respondent did not lodge a notice of objection or make any written submissions. The Appeal Panel had in error referred to the respondent having made submissions which it had not. The Appeal Panel found error and referred the matter for re-examination. The Appeal Panel adopted the findings and report of Dr Stephenson which is now the subject of submissions by both parties on the reconsideration application by the employer.
In respect of the reconsideration application lodged by the employer, the employer made written submissions and so did the appellant worker. The Appeal Panel has taken these into account.

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 matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·    the degree of permanent impairment of the worker as a result of an injury (s319(c))
·    whether any proportion of permanent impairment is due to any previous injury of pre-existing condition of abnormality, and the extend of that proportion (s319(d))
·    whether impairment is permanent (s319(f))
·    whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
·    Date of injury: 21 August 2018
·    Body parts/systems referred: Right upper extremity (shoulder)
Left upper extremity (shoulder)
·    Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC as follows:

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)
1. Right Shoulder	21 August 2018	Page 11, Section 2.14	Figure 16-40, 43, 46	11%	1/3	7%
2. Left Shoulder	21 August 2018	Page 11, Section 2.14	Figure 16-40, 43, 46	10%	1/3	7%
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					14%

The worker appealed and requested a re-examination. It is noted that the respondent employer, Winifred West Schools Limited, did not lodge a notice of opposition to the appeal.
The Appeal Panel had no power to require a re-examination unless it was satisfied as to error. The Appeal Panel was satisfied as to error.
The role of the Medical Assessor is to make an independent assessment on the day of examination in accordance with the Guidelines. The Medical Assessor appeared to base his assessment on a mid range point between the opinion of Dr Pillemer the independent medical expert (IME) qualified on behalf of the appellant and that of Dr Bentivoglio, the IME qualified on behalf of the respondent, when he stated in his reasons the following:
“My assessment of shoulder movement, more or less, concurs with Dr Roger Pillemer. There is very little discrepancy between our assessments. My assessment is slightly inferior to Dr Peter Bentivoglio but not as excessive. I believe the main problem in this case, which has been highlighted in the report of Dr Peter Bentivoglio, is Dr Roger Pillemer gave another permanent impairment in relation to the sensory deficit for the peripheral nerve, which in his situation, ended up with a 4% upper extremity impairment. I certainly agreed with Dr Bentivoglio, I cannot understand why there is some sensory deficit. In this situation, as physical examination failed to pick up any sensory deficit, we can argue that there is obvious weakness of the rotator cuff and assessing strength as a module, which is usually not recommended in permanent impairment assessment. Although, according to the Work Cover Guide, we can use a similar situation, like a peripheral nerve injury causing the motor or sensory deficit. In this particular case, the weakness of the rotator cuff, should be a motor deficit of the suprascapular nerve, rather than a sensory. I really don’t agree to use this module, so I tend to agree with Dr Bentivoglio, and avoided using this module. Other than that, my assessment, probably falls in between Dr Roger Pillemer and Dr Bentivoglio and hence, in this particular case, I assess 11% whole person impairment on the right, and 10% whole person impairment on the left. I tend to agree with Dr Roger Pillemer, using a 1/3 deduction for pre-existing conditions. In the report of Dr Bentivoglio, he assessed it as ¼ and that explains the minor difference, among our assessments. If I take away 1/3 deduction for pre-existing conditions, the right shoulder will leave behind a 7% and the left shoulder, also 7%. When the two are combined together, there is altogether, 14% whole person impairment.”
The Appeal Panel considered that the Medical Assessor’s reasoning was flawed, was in error and was based on incorrect criteria and the Panel considered that a re-examination of the appellant was necessary in the circumstances.
Dr Brian Stephenson, a Medical Assessor member of the Panel undertook the re-examination and reported to the Panel as follows:

REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL

Matter No: M2-W2663/22

Appellant: Robert Ryles

Respondent: Winifred West Schools Limited

Examination Conducted By: Dr J Brian Stephenson and member of the Appeal Panel

Date of Examination: 9 November 2022

Date, Time and Place of Examination

12 noon to 1 pm, Wednesday, 9 November 2022, at MediLaw Platform, Level 20, 31 Market Street, SYDNEY NSW 2000.

The appeal was against the medical assessor Dr Yiu-Key Ho, Orthopaedic Surgeon, Wollongong.

Date of MAC – 21 June 2022. The medical assessor found an 11% WPI to restriction of motion right shoulder. Date of injury of 21 August 2018. With a fractural deduction of 1/3 under Section 323 there was a net 7% WPI.

A 10% WPI for left shoulder restriction of range of motion. Also, date of injury, 21 August 2018 with a fractional deduction of one-third under Section 323 with a net 7% WPI of his shoulder. The total combined value was 14% WPI.

The worker's medical history, where it differs from previous records

For recap, I note Mr Robert Ryles, the claimant, date of birth, (omitted) aged 61years. He lives in the old mining village of Mount Kembla overlooking Illawarra Coast for 30 years. He has not stopped work.

2. Additional history since the original medical assessment certificate.

Employment History:

At the time of the injury on 21 August 2018, he was employed at Winifred West Schools Limited as an electrician/handyman for about four months on a fulltime basis. Prior to that, he had been an electrician at Wollongong Hospital for 30 years. He came to surgery under the care of Dr Ivan Popoff, Shoulder Specialist at Prince Alfred Hospital in November 2018.

Following injury in August 2018, he required three years off work recovering and having rehabilitation following two arthroscopic procedures on right shoulder performed by Dr Popoff and one to the left shoulder. He is currently been working recently for a colleague who is an electrician. He cannot work above the shoulder height, said both shoulders give way. He is able to work normally below shoulder height. The only medication he takes now is Endep for nerve pain to help him sleep.

The original pain and pain after surgery has subsided, he said.

History of Previous Injury:

He came under the care of Dr Jerome Goldberg, for a labral tear of the left shoulder in the early 1980s. It was an open procedure with a prominent deltopectoral scar anterior to the left shoulder. That was between the deltoid muscle following cowl of the shoulder and the pectoralis major muscle. Following that surgery by Dr Goldberg in the early 1980s, he said he has had no problem doing everything back at work and at sport including riding a surfboard. There has been no further or subsequent injury following the injury of 21 August 2018.

He confirmed the last operation under Dr Popoff was that of moving a fresh-frozen allograft patch anteriorly at the left shoulder.

He ceased physiotherapist at five months ago for lack of improvement.

He has declined the suggestion of having a reverse total shoulder operation under the care of Dr Popoff. He said the fresh-frozen allograft patch had also failed. He felt the body has just rejected it.

Assessment of Sensory Loss:

I note on examination, the original 8-cm long deltopectoral scar at left shoulder. On examination, there was reduced sensation in the skin over the left shoulder extending down the proximal humerus area, wrapping around laterally and extending down for two-thirds over the left forearm. That is in the distribution of the cutaneous branch of the axillary nerve, left shoulder. The surgical procedure at the right shoulder had been through small arthroscopic scars no more than 1 cm in length and not reasonably attributable with any associated sensory loss at the opposite right shoulder.

Dr Jerome Goldberg had performed that original approach for the left shoulder through an open deltopectoral procedure. All procedures performed by Dr Ivan Popoff were arthroscopic.

Conclusion:

There is axillary nerve sensory loss over the lateral aspect of the left shoulder and right shoulder. Reference AMA5, under chapter 16, table 16-10a, I found a grade 3 sensory loss, that is, distorted superficial tactile sensibility (diminished light touch and two-point discrimination with some abnormal sensations or slight pain that interferes with some activities). The range is 20% to 60%, 60% or maximum is not automatically is chosen. It was chosen 50% through the clinical findings. Referenced then to AMA5 page 492, table 16-15, for axillary nerve, the maximal percentage upper extremity impairment due to sensory deficit or pain is 5% upper extremity, taking one half of that is 2.5% upper extremity, which round up to 3% over to the rounding provisions of AMA5. With 3% upper extremity impairment at the left shoulder and for sensory loss axillary nerve cutaneous supply which is to be combined with the range of motion loss expressed in the upper extremity at the left shoulder.

Radiological Investigations:

Date 4 September 2018, at the request of his GP in Mittagong, x-ray and ultrasound of left shoulder report of Dr Tom Ruut, radiologist, there are some calcifications of the articular cartilage of the glenohumeral joint suggestive of calcium pyrophosphate deposition disease. The acromioclavicular and glenohumeral joints are otherwise normal with some prominence of the greater tuberosity of the humerus which represents an old healed fracture in the past and not related to the recent trauma.

Ultrasound of the left shoulder, there is full thickness tear of the supraspinatus measuring 23 x 12 mm. Ultrasound of the left shoulder, impression complete supraspinatus tear per Dr Ivan Popoff of Hurstville.

Examination MR arthrogram of left shoulder, opinion:

Tears of the supraspinatus, subscapularis, infraspinatus tendons as described.
Antero-inferior and possibly postero-superior labral tears. The postero-superior tear is not as convincing, please correlate clinically.
Subacromial/subdeltoid bursal fluid, maybe arthrographic contrast as detailed above.
No significant osteoarthritic changes with mild early changes as detailed above.

In the body of the report, radiologist Dr Richard Caswell reported a complete full-thickness tear of the supraspinatus tendon measuring 2.7 x 2.3 cm. There is a complete tear of the superior subscapularis tendon with underlying osseous remodelling and prominence of the lesser tuberosity. There is a full-thickness partial width tear of the anterior inferior infraspinatus tendon is seen with a background of tendonosis. The teres minor tendon is intact and unremarkable. Long head of biceps tendon is intact. There is an anterior inferior and possible posterior superior labral tears identified. A cartilage fibrillation without large chondral defects with subchondral oedema is seen at the glenohumeral joint. No significant acromioclavicular degenerative changes.
Dr Caswell.

Dr Ivan Popoff, on initial consultation by GP at Mittagong, Dr Akhter, he noted a history of injury of left shoulder 21 August 2018, when Robert was levering on a crowbar which then gave way with sudden onset of pain in left shoulder associated with poor function. He noted the ultrasound report with full-thickness tear on the supraspinatus tendon and found on examination decreased active range of motion but passive range was intact. Jobe’s test was positive for pain and weakness, external rotation strength was reasonable but painful. Napoleon test was negative. Dr Ivan Popoff diagnosed a tear of the rotator cuff, arranging for the above referred to MRI scan to confirm that.

There was subsequent reporting by Dr Popoff. Initially, Dr Popoff referred Robert Ryles to Dr Paul Annett for a trial of PRP (platelet-rich plasma) injections to both shoulders. On 25 October 2018, Dr Popoff foreshadowed the subsequent left shoulder arthroscopic rotator cuff repair, biceps tenodesis and subacromial decompression. Confirming 19 December 2019, Robert was now four and a half months post arthroscopic rotator cuff repair, right shoulder.

In a letter of 19 December 2019, he confirmed that mid-October 2019 arthroscopic rotator cuff repair of right shoulder. He noted at that review of 19 December 2019 that the left shoulder remains irritable and foreshadowed a revision procedure for another arthroscopic repair of left shoulder. On my calculation, this statement applied in December 2019, Robert was four and a half months post arthroscopic rotator cuff repair of right shoulder implies that procedure was in August 2019. Finally, 9 July 2020, operation of Dr Popoff, right shoulder, revision arthroscopic rotator cuff repair, dermal allograft patch. He noted the operative findings of a failure in the rotator cuff repair with a tear of the posterior half of the supraspinatus extending into superior infraspinatus with a large amount of scar tissue which was debrided. Tendon tissue quality was relatively poor and after extensive mobilisation, the tear was surgically repaired into the greater tuberosity utilising two Bio-Cork screw FC anchors triple-threaded with FiberWire suture. There was no overlay of collagen patch with three intratendinous sutures medially and three Bio-Cork Screw FC anchors distally followed by remaining in a sling for seven weeks.

On 14 August 2019, was the post-arthroscopic rotator cuff repair of right shoulder. GP notes,
Dr Akhter, referred to the above mentioned x-ray and ultrasound of left shoulder with complete tear of left supraspinatus and referral to orthopaedic surgeon. Additionally, his sensory original medical assessment was performed, I refer to the clinical history of a sensory loss affecting the cutaneous branches of the axillary nerve of left shoulder at 3% upper extremity impairment.

History of Injury:

On 21 August 2018, at work as a handyman at Winifred West Schools Limited, explained there was a heavy cast iron gate at the perimeter of the driveway leading to the school principal’s private garage.

There were three hinges which were attached to a metal post on either side. These were rusted and unlubricated and due to the conditions of the hinges, the gate would not open on the remote control. The supervisor directed Robert Ryles and his colleague to free up the gate and he used WD40 on the rusted hinges to lubricate them and they tried to lift the gate slightly out of the hinges in order to get some movement with additional WD40 spray. He placed a wooden block under the gate and with a six-foot crow bar pushed and pulled on the crow bar, trying to lift the gate. He felt pain in the left shoulder and in the left side of the chest. He reported the injury to his GP on 29 August 2018 and Dr Popoff subsequently diagnosed torn rotator cuff of left shoulder with further MRI.

He had surgery to left shoulder, Dr Popoff, on 20 November 2018.

In mid-February 2019, there was a consequential injury to right shoulder, lifting a heavy bag out of the boot of his car one-handed. He was unable use to my left hand to assist due to the injury to the left shoulder, and there was a sudden onset of pain and weakness in right shoulder. Had an MRI under the care of Dr Popoff in June 2019. He did have the right shoulder rotator cuff surgery; however, the one-year old child he was playing with on the floor fell onto his left arm and he had a sudden pain and loss of function in left shoulder. Dr Popoff was concerned that he had retorn the left rotator cuff which was repaired on 20 November 2018. There was an MRI and on 13 August 2019, there was the right shoulder arthroscopic revision of rotator cuff repair at St George Private Hospital.

In late January 2020, he continued with treatment left shoulder with the repeat PRP injections in December 2019 and January 2020. MRI scans, April 2020, per Dr Popoff showed the right rotator cuff repair had failed and then there was the revision surgery to right shoulder on 9 July 2020, and the revision arthroscopic rotator cuff and insertion of allograft patch. There was another MRI scan in December 2020 and Robert decided not to proceed with any further surgery. Dr Annett undertook PRP injections of both shoulders in January 2021.

In terms of work experience in October 2011, he became employed by Wollongong Hospital as an electrician. He did have complaints of pain and restriction of movement of both shoulders.

Findings on clinical examination.

On examination, grip strength is stronger in right hand at 43 kg force/weak left hand 18 kg force. There is axillary nerve sensory loss and I have noted that is related to the long deltopectoral and surgical scar by open operation additionally under the care of Dr Goldberg of the left shoulder.

At that left and also at the right shoulder, there is also I find 2-inch long scars representing bilateral longhead of biceps tenotomies. This scarring explains the bilateral sensory loss of the shoulders and therefore, by the method assessment reference to chapter 16, page 482 and 492, there is a 3% upper extremity sensory loss due to grade 3 sensory loss for sensory deficit and pain 50% of maximum 5% upper extremity, gaining a rounded 3% upper extremity impairment bilaterally. Certainly at both shoulders, there is sensory loss found on two-point discrimination and on the Neurotip pinprick device with dull sensation. This is in the distribution of the cutaneous branches of the axillary nerves.

On examination of right shoulder, the active range of motion was assessed as follows: Reference AMA5 chapter 16, page 476 to 479, figure 16-40 to figure 16-46, upper extremity impairment, I have noted a whole person impairment of page 439, table 16-3.

Right Shoulder	Range of Motion	Impairment-Upper Extremity
Abduction	80°	5%
Adduction	20°	1%
Flexion	90°	6%
Extension	20°	2%
External Rotation	40°	1%
Internal Rotation	60°	2%

At right shoulder, the 17% upper extremity impairment combines with 3% upper extremity for sensory loss of axillary nerve cutaneous branches. A combination of 17 with 3 gains a 19% upper extremity impairment. A 19% upper extremity impairment converts to 11% WPI.

Dr Pillemer found sensory loss at page 4 of his report, “He does have very distinct and marked hypoaesthesia to pinprick over the shoulder cowl on both sides in the distribution of the supraclavicular nerves. This is distinct and present with repeated testing and the hypoaesthesia is marked. He used the analogy for the axillary nerve in that respect.”

In my opinion there is actual axillary nerve sensory loss and therefore an analogy is not required.

Referring to left shoulder, I found sensory loss of axillary nerve bilaterally, probably related to the mini-open repair scars each approximately 2 inches in length bilaterally. Therefore, it was a true axillary nerve sensory loss bilaterally.

In his statement Robert Ryles recorded 18/7/12 at clause 3 “Dr Pillemer used a thin wire to peel the entire area from the base of the neck all the way across the top of both shoulders and across the top both arms.

Report of Dr John Bentivoglio 28/2/22, this did not advise sensory loss but it did refer to scars which potentially could relate to sensory loss.

Now for the right shoulder, I have found 11% WPI; it being a combination of 17% for range of motion of loss of 3% sensory deficit gaining 19% upper extremity which converted to 11% WPI.

A 3% sensory loss was the nerve multiplier used bilaterally here.

Left Shoulder	Range of Motion	Impairment-Upper Extremity
Abduction	80°	5%
Adduction	30°	1%
Flexion	90°	6%
Extension	30°	1%
External Rotation	50°	1%
Internal Rotation	50°	2%

There is a 16% upper extremity impairment which combines with 3% sensory loss gaining 19% upper extremity impairment. 19% upper extremity impairment converts to 11% WPI. I found 11% WPI bilaterally. I have deducted one-third of the section 323, history of previous injury condition and abnormality and that goes back to the previous injuries, requiring surgery performed by
Dr Goldberg. Subtracting one-third, gains 8% WPI bilaterally. A combination of 8 with 8 gains 15% 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	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-totals % WPI (after any deductions in column 6)
1. Right upper extremity	21/8/18	Ch 2, Pages 10-12	Ch 16, Pages 433 to 521	11%	1/3	8%
2. Left upper extremity	21/8/18	Ch 2, Pages 10-12	Ch 16, Pages 433 to 521	11%	1/3	8%
Total % WPI (the Combined Table values of all sub-totals)						15%

The Appeal Panel issued a certificate to this effect.
The respondent employer at first lodged a complaint that the Appeal Panel had referred to it making submissions when it had not made submissions. The Appeal Panel was just about to correct this error when a reconsideration application was lodged.
The appellant worker was given time to file submissions in response. The appellant’s submitted that the matter should be referred back to Dr Stephenson for clarification. The appellant also submitted that a deduction should not be made from the sensory loss. The Appeal Panel notes that the IME qualified on behalf of the appellant Dr Pillemer had made a 1/3^rd deduction under s 323 which was consistent with Dr Stephenson’s findings on re-examination which the Appeal Panel had adopted.
In view of the reconsideration application and the submissions made by both parties, the Appeal Panel referred the matter back to Dr Stephenson who conducted the re-examination.
Dr Stephenson reported to the Appeal Panel in respect of his reconsideration as follows:

RECONSIDERATION OF THE REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL

Matter No: M2-W2663/22

Appellant: Robert Ryles

Respondent: Winifred West Schools Limited

Examination Conducted By: Dr J Brian Stephenson and member of the Appeal Panel

Date of Examination: 9 November 2022

Date, Time and Place of Examination

12 noon to 1 pm, Wednesday, 9 November 2022, at MediLaw Platform, Level 20, 31 Market Street, SYDNEY NSW 2000.

The appeal was against the medical assessor Dr Yiu-Key Ho, Orthopaedic Surgeon, Wollongong.

Date of MAC – 21 June 2022. The medical assessor found an 11% WPI to restriction of motion right shoulder. Date of injury of 21 August 2018. With a fractural deduction of 1/3 under Section 323 there was a net 7% WPI.

A 10% WPI for left shoulder restriction of range of motion. Also, date of injury, 21 August 2018 with a fractional deduction of one-third under Section 323 with a net 7% WPI of his shoulder. The total combined value was 14% WPI.

The worker's medical history, where it differs from previous records

For recap, I note Mr Robert Ryles, the claimant, date of birth, (omitted) aged 61years. He lives in the old mining village of Mount Kembla overlooking Illawarra Coast for 30 years. He has not stopped work.

2. Additional history since the original medical assessment certificate.

Employment History:

At the time of the injury on 21 August 2018, he was employed at Winifred West Schools Limited as an electrician/handyman for about four months on a fulltime basis. Prior to that, he had been an electrician at Wollongong Hospital for 30 years. He came to surgery under the care of Dr Ivan Popoff, Shoulder Specialist at Prince Alfred Hospital in November 2018.

Following injury in August 2018, he required three years off work recovering and having rehabilitation following two arthroscopic procedures on right shoulder performed by Dr Popoff and one to the left shoulder. He is currently been working recently for a colleague who is an electrician. He cannot work above the shoulder height, said both shoulders give way. He is able to work normally below shoulder height. The only medication he takes now is Endep for nerve pain to help him sleep.

The original pain and pain after surgery has subsided, he said.

History of Previous Injury:

He came under the care of Dr Jerome Goldberg, for a labral tear of the left shoulder in the early 1980s. It was an open procedure with a prominent deltopectoral scar anterior to the left shoulder. That was between the deltoid muscle following cowl of the shoulder and the pectoralis major muscle. Following that surgery by Dr Goldberg in the early 1980s, he said he has had no problem doing everything back at work and at sport including riding a surfboard. There has been no further or subsequent injury following the injury of 21 August 2018.

He confirmed the last operation under Dr Popoff was that of moving a fresh-frozen allograft patch anteriorly at the left shoulder.

He ceased physiotherapist at five months ago for lack of improvement.

He has declined the suggestion of having a reverse total shoulder operation under the care of Dr Popoff. He said the fresh-frozen allograft patch had also failed. He felt the body has just rejected it.

Assessment of Sensory Loss:

I note on examination, the original 8-cm long deltopectoral scar at left shoulder. On examination, there was reduced sensation in the skin over the left shoulder extending down the proximal humerus area, wrapping around laterally and extending down for two-thirds over the left forearm. That is in the distribution of the cutaneous branch of the axillary nerve, left shoulder. The surgical procedure at the right shoulder had been through small arthroscopic scars no more than 1 cm in length and not reasonably attributable with any associated sensory loss at the opposite right shoulder.

Dr Jerome Goldberg had performed that original approach for the left shoulder through an open deltopectoral procedure. All procedures performed by Dr Ivan Popoff were arthroscopic.

Conclusion:

There is axillary nerve sensory loss over the lateral aspect of the left shoulder and right shoulder. Reference AMA5, under chapter 16, table 16-10a, I found a grade 3 sensory loss, that is, distorted superficial tactile sensibility (diminished light touch and two-point discrimination with some abnormal sensations or slight pain that interferes with some activities). The range is 20% to 60%, 60% or maximum is not automatically is chosen. It was chosen 50% through the clinical findings. Referenced then to AMA5 page 492, table 16-15, for axillary nerve, the maximal percentage upper extremity impairment due to sensory deficit or pain is 5% upper extremity, taking one half of that is 2.5% upper extremity, which round up to 3% over to the rounding provisions of AMA5. With 3% upper extremity impairment at the left shoulder and for sensory loss axillary nerve cutaneous supply which is to be combined with the range of motion loss expressed in the upper extremity at the left shoulder.

Radiological Investigations:

Date 4 September 2018, at the request of his GP in Mittagong, x-ray and ultrasound of left shoulder report of Dr Tom Ruut, radiologist, there are some calcifications of the articular cartilage of the glenohumeral joint suggestive of calcium pyrophosphate deposition disease. The acromioclavicular and glenohumeral joints are otherwise normal with some prominence of the greater tuberosity of the humerus which represents an old healed fracture in the past and not related to the recent trauma.

Ultrasound of the left shoulder, there is full thickness tear of the supraspinatus measuring 23 x 12 mm. Ultrasound of the left shoulder, impression complete supraspinatus tear per Dr Ivan Popoff of Hurstville.

Examination MR arthrogram of left shoulder, opinion:

Tears of the supraspinatus, subscapularis, infraspinatus tendons as described.
Antero-inferior and possibly postero-superior labral tears. The postero-superior tear is not as convincing, please correlate clinically.
Subacromial/subdeltoid bursal fluid, maybe arthrographic contrast as detailed above.
No significant osteoarthritic changes with mild early changes as detailed above.

In the body of the report, radiologist Dr Richard Caswell reported a complete full-thickness tear of the supraspinatus tendon measuring 2.7 x 2.3 cm. There is a complete tear of the superior subscapularis tendon with underlying osseous remodelling and prominence of the lesser tuberosity. There is a full-thickness partial width tear of the anterior inferior infraspinatus tendon is seen with a background of tendonosis. The teres minor tendon is intact and unremarkable. Long head of biceps tendon is intact. There is an anterior inferior and possible posterior superior labral tears identified. A cartilage fibrillation without large chondral defects with subchondral oedema is seen at the glenohumeral joint. No significant acromioclavicular degenerative changes. Dr Caswell.

Operation Reports – Dr Ivan Popoff

1. 20 November 2018

Operation: Left shoulder arthroscopic rotator cuff repair, biceps tenodesis, subacromial decompression.

2. 13 August 2019

Operation: Arthroscopic revision rotator cuff repair right shoulder.

3. 9 July 2020

Operation: Right shoulder revision arthroscopic rotator cuff repair, dermal allograft patch.

History of Injury:

On 21 August 2018, at work as a handyman at Winifred West Schools Limited, explained there was a heavy cast iron gate at the perimeter of the driveway leading to the school principal’s private garage.

There were three hinges which were attached to a metal post on either side. These were rusted and unlubricated and due to the conditions of the hinges, the gate would not open on the remote control. The supervisor directed Robert Ryles and his colleague to free up the gate and he used WD40 on the rusted hinges to lubricate them and they tried to lift the gate slightly out of the hinges in order to get some movement with additional WD40 spray. He placed a wooden block under the gate and with a six-foot crow bar pushed and pulled on the crow bar, trying to lift the gate. He felt pain in the left shoulder and in the left side of the chest. He reported the injury to his GP on 29 August 2018 and Dr Popoff subsequently diagnosed torn rotator cuff of left shoulder with further MRI.

He had surgery to left shoulder, Dr Popoff, on 20 November 2018.

In mid-February 2019, there was a consequential injury to right shoulder, lifting a heavy bag out of the boot of his car one-handed. He was unable use to my left hand to assist due to the injury to the left shoulder, and there was a sudden onset of pain and weakness in right shoulder. Had an MRI under the care of Dr Popoff in June 2019. He did have the right shoulder rotator cuff surgery; however, the one-year old child he was playing with on the floor fell onto his left arm and he had a sudden pain and loss of function in left shoulder. Dr Popoff was concerned that he had retorn the left rotator cuff which was repaired on 20 November 2018. There was an MRI and on 13 August 2019, there was the right shoulder arthroscopic revision of rotator cuff repair at St George Private Hospital.

In late January 2020, he continued with treatment left shoulder with the repeat PRP injections in December 2019 and January 2020. MRI scans, April 2020, per Dr Popoff showed the right rotator cuff repair had failed and then there was the revision surgery to right shoulder on 9 July 2020, and the revision arthroscopic rotator cuff and insertion of allograft patch. There was another MRI scan in December 2020 and Robert decided not to proceed with any further surgery. Dr Annett undertook PRP injections of both shoulders in January 2021.

In terms of work experience in October 2011, he became employed by Wollongong Hospital as an electrician. He did have complaints of pain and restriction of movement of both shoulders.

Findings on clinical examination.

On examination, grip strength is stronger in right hand at 43 kg force/weak left hand 18 kg force. There is axillary nerve sensory loss and I have noted that is related to the long deltopectoral and surgical scar by open operation additionally under the care of Dr Goldberg of the left shoulder.

At that left and also at the right shoulder, there is also I find 2-inch long scars representing bilateral longhead of biceps tenotomies. This scarring explains the bilateral sensory loss of the shoulders and therefore, by the method assessment reference to chapter 16, page 482 and 492, there is a 3% upper extremity sensory loss due to grade 3 sensory loss for sensory deficit and pain 50% of maximum 5% upper extremity, gaining a rounded 3% upper extremity impairment bilaterally. Certainly at both shoulders, there is sensory loss found on two-point discrimination and on the Neurotip pinprick device with dull sensation. This is in the distribution of the cutaneous branches of the axillary nerves.

On examination of right shoulder, the active range of motion was assessed as follows: Reference AMA5 chapter 16, page 476 to 479, figure 16-40 to figure 16-46, upper extremity impairment, I have noted a whole person impairment of page 439, table 16-3.

Right Shoulder	Range of Motion	Impairment-Upper Extremity
Abduction	80°	5%
Adduction	20°	1%
Flexion	90°	6%
Extension	20°	2%
External Rotation	40°	1%
Internal Rotation	60°	2%