Safdarian v Kian Bread Pty Ltd
[2025] NSWPICMP 667
•2 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Safdarian v Kian Bread Pty Ltd [2025] NSWPICMP 667 |
| APPELLANT: | Saeid Safdarian |
| RESPONDENT: | Kian Bread Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 2 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of impairment of the cervical spine, lumbar spine, and right upper extremity; Medical Assessor made no diagnosis in respect of the right shoulder, cervical spine, and lumbar spine; assessment made on the basis of incorrect criteria; worker re-examined; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 April 2025 Saeid Safdarian (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin Alexander Mitchell, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
27 March 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 to his right shoulder, cervical spine and lumbar spine in his employment with Kian Bread Pty Ltd (the respondent) deemed on 9 November 2021.
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 16 October 2024 in which he claimed lump sum compensation in respect of the cervical spine, lumbar spine and right upper extremity.
On 23 January 2025, Member Michael Moore, made orders by consent, including:
" 3. I remit this matter to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a.Date of Injury: 9 November 2021.
b.Body systems/parts: Right upper extremity (shoulder); Cervical Spine; Lumbar Spine.
c.Method of Assessment: Whole person impairment.
2. The documents to be reviewed by the medical assessor are:
a.Application to Resolve a Dispute and attached documents.
b.Respondent's reply and attached documents.
c.Applicant's Application to Admit Late Documents and attached documents.
3. Award in favour of the respondent in respect of the alleged injuries of left and right ulnar neuritis.”
On 24 January 2025 the Referral for Assessment of Permanent Impairment to Medical Assessor was made to Dr Robin Mitchell.
The Medical Assessor examined the appellant on 5 March 2025 and assessed 2% WPI of the right upper extremity (shoulder), 0% WPI of the cervical spine and 0% WPI of the lumbar spine. The total assessment of impairment was 2% as a result of the injury on
9 November 2021.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and the appellant should undergo a further medical examination because there was insufficient information on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Drew Dixon of the Appeal Panel conducted an examination of the appellant worker on 22 August 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) Ground 1- in relation to the right shoulder, the Medical Assessor failed to give proper reasons and to disclose his reasoning process in arriving at an assessment of 2% WPI.
(b) Although the Medical Assessor noted that X-ray and ultrasound examination of the appellant’s right shoulder revealed a full-thickness supraspinatus tendon tear and then arthroscopic debridement and rotator cuff repair and acromioplasty by Dr Bokor on 12 April 2022, he provided little reasoning for his assessment.
(c) The Medical Assessor did not refer to or attach the worksheet (Upper Extremity Impairment Evaluation Record – Part 2 (wrist, elbow and shoulder)) referred to in Figure 16-1b of AMA 5. Without this, it is not possible to follow the Medical Assessor’s reasoning process in arriving at a determination of 2% WPI, particularly as Dr Dias assessed the appellant’s right shoulder at 4% WPI.
(d) The failure to explain his methodology of assessment as per Guideline 1.48 is a demonstrable error and the application of incorrect criteria.
(e) The Medical Assessor does not appear to have examined and measured the appellant’s contra-lateral shoulder. Such failure is in breach of Paragraph 2.20 of the Guidelines. The Medical Assessor gives no reason for why the appellant’s left shoulder was not examined.
(f) The Medical Assessor’s description of the appellant’s symptoms in the right shoulder is scant, noting that “he continues to have pain in the right shoulder”. He does not note the severity, frequency, extent, aggravating factors, or relieving factors of the pain in the shoulder.
(g) The Medical Assessor’s reasons and methodology for assessment are essential so that the appellant may know and understand why the particular assessment was made. In this case the Medical Assessor has not exposed his reasoning for the assessment.
(h) Ground 2 – in relation to the cervical spine the Medical Assessor has failed to give any or any adequate reasons for making an assessment of 0% WPI in respect of the appellant’s cervical spine.
(i) The Medical Assessor’s examinations findings are extremely brief. He notes that on physical examination movement in the cervical spine was limited symmetrically with ¾ of normal flexion and extension and ½ of normal flexion to the left and right side. Rotation in each direction was normal. He does not appear to have tested reflexes and motor power nor sensation.
(j) The Medical Assessor did not make any diagnosis in respect of the appellant’s cervical condition, nor does he make any mention of the effect of any cervical spine symptoms on activities of daily living, a requirement of Paragraph 4.4 of the Guidelines. The Medical Assessor states that there was no examination inconsistency.
(k) The Medical Assessor does not indicate how he made the assessment of 0% WPI, ie whether the Diagnosis Related Estimates (DRE) Method was used and what criteria was used for making the assessment. It is submitted that without being provided with the Medical Assessor’s reasoning and methodology for assessment it is not possible to understand why the assessment of 0% WPI was made.
(l) Ground 3 – in relation to the lumbar spine the Medical Assessor made no diagnosis of the appellant’s condition and has failed to give any or any adequate reasons for the assessment of 0% WPI of the lumbar spine. The appellant repeats the submissions above.
(m) Again, the Medical Assessor’s examination findings are very brief. He makes no mention of the severity, frequency, extent, aggravating factors, or relieving factors of the appellant’s lumbar symptoms nor does he make any mention of the effect of his lumbar symptoms on activities of daily living as required by Paragraph 4.4 of the Guidelines. Again, the Medical Assessor does not disclose on what basis the assessment is made, i.e. whether the DRE Method was used and what criteria he used for rating the appellant’s WPI.
(n) The Medical Assessor gave no reasoning as to why there was no radiculopathy in either leg, despite the appellant’s complaints of pain in his legs (see paragraph 73 of the appellant’s statement of 16 October 2024) and despite the MRI scan of 22 August 2022 disclosing disc degeneration at L4/5 with reduced disc height and broad-based disc osteophyte complex causing moderate to severe foraminal stenosis and moderate canal stenosis. This is contrary to the findings of Dr Dias, who noted that the appellant had reduced sensation to light touch, sharp touch and reduced two-point discrimination in a region corresponding with the left L5 dermatome and confirmed that the neurological examination findings were consistent with a persisting left L5 radiculopathy.
(o) The examination conducted by the Medical Assessor and the inadequate history and complaints obtained by the Medical Assessor from the appellant and a lack of a comprehensive description of the appellant’s current symptoms and their relationship to activities of daily living is in breach of Paragraph 4.4 of the Guidelines. The appellant ought to be re-examined by a Medical Assessor who is a member of the Appeal Panel.
The respondent’s submissions include the following:
(a) Right shoulder - the Medical Assessor has provided his reasoning for arriving at the assessment, considering the explanation provided at part 8 b, page 4 of the MAC. The Medical Assessor describes his findings for the right shoulder joint movement and assessed total UEI for the right shoulder as 3% which converts to 2% WPI.
(b) These recorded ranges of motion are identical to those recorded earlier at part 5, page 3 of the MAC and are taken from the Medical Assessor’s findings on physical examination of the appellant.
(c) The Medical Assessor goes on to confirm the relevant figures referred to in AMA 5 at row 4, column 4 of the Table at page 6 of the MAC referring also to the chapters, pages, and table numbers relied on to reach the assessment.
(d) It is not a mandatory requirement that a worksheet (Upper Extremity Impairment Evaluation Record – Part 2 (wrist, elbow and shoulder)) be provided by the Medical Assessor for the assessment to accord with the relevant criteria. The approach is consistent with the methodology and content of the and accords with the general requirements set out in Chapter 2 of the Guidelines. This process clearly described the Medical Assessor’s findings on clinical examination of the appellant and transference of the information against the relevant tables of the AMA 5 to reach an assessment. There is no application of incorrect criteria in this approach and there is no demonstrable error in the reasoning provided by the Medical Assessor.
(e) Paragraph 2.20 of the Guidelines requires an assessor to compare the measurement of contralateral joints if a contralateral ‘normal/uninjured’ joint has less than average mobility. It is only in this instance that the impairment value corresponding to the uninvolved joint serve as a baseline and is subtracted from the calculated impairment for the involved joint.
(f) The absence of any recorded impairment in the contralateral joint of the left shoulder in the MAC is indication there was not less than average mobility in that joint; and therefore, the Medical Assessor correctly made no deduction for any latent impairment in that joint. Even if this omission did constitute a demonstrable error (which the respondent says it does not), then the outcome would be to the detriment to the appellant by further reducing the assessment of impairment to the right shoulder. The appellant’s grounds of appeal must fail in respect to the right shoulder.
(g) Cervical spine - the Medical Assessor provided his findings on examination of the appellant at part 5, page 3 of the MAC. The Medical Assessor also noted at part 7, page 4 of the MAC that the clinical records of the appellant’s general practitioner did not mention any reference to neck pain. He also noted the MRI scan of the cervical spine dated 7 June 2023. The Medical Assessor proceeded to provide his assessment of impairment in the cervical spine under part 8, page 4 of the MAC noting a 0% WPI finding and his explanation that the assessment considered the history provided by the appellant, his findings on physical examination, and his assessment of the provided documentation and radiological results.
(h) The Medical Assessor explains his assessment, at pages 4 -5 of the MAC, when he states:
“Although there was reduced movement in the neck and lumbar back there was no evidence of dysmetria or asymmetry and no evidence of increased muscle tone or spasm. There were no abnormal neurological findings to indicate radiculopathy, were normal muscle bulk and strength, and normal reflexes throughout both legs”.
(i) In the Medical Assessor’s reasons for assessment at part 8 c., page 5 of the MAC, he notes:
“Furthermore, I did not find any asymmetry of spinal movement which appears to be the basis of a significant portion of his assessed permanent impairment level. Mr Safdarian did not report any leg symptoms to me and there was no evidence of radiculopathy which also constituted part of Dr Dias’ assessment”.
(j) The appellant submits that the Medical Assessor failed to make any mention of the effect of any cervical spine symptoms on activities of daily living, being a requirement of part 4.4 of the Guidelines and which says. The assessment should include a comprehensive, accurate history, a review of all pertinent records available at the assessment, a comprehensive description of the individual’s current symptoms and their relationship to activities of daily living (ADL); a careful and thorough physical examination, and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The assessor should record whether diagnostic tests and radiographs were seen or whether they relied solely on reports.
(k) The Medical Assessor was clearly satisfied on his clinical examination that the appellant had reduced movement in the neck and lumbar back, but did not demonstrate any dysmetria or asymmetry; there was no evidence of increased muscle tone or spasm, no abnormal neurological findings to indicate radiculopathy, and that there was normal muscle bulk and strength, and normal reflexes throughout both legs. The respondent says that the clinical criteria for DRE cervical category I impairment stipulated at Table 15-5 of the AMA 5. The appellant’s grounds of appeal must, also, fail in respect of the cervical spine.
(l) Lumbar spine - the Medical Assessor provided his findings on examination of the appellant at part 5, page 3 of the MAC under where the following was recorded: “Movement in the lumbar spine was reduced in a symmetrical manner with of lateral flexion to each side possible, and normal flexion and extension. Straight leg raising was normal on each side and there was no indication of muscle wasting, weakness, or abnormal reflex to indicate radiculopathy in either leg”.
(m) Under Table 15-3 of the AMA 5 for a DRE Category II finding to apply the appellant must demonstrate an asymmetric loss of range of motion or non-verifiable radicular complaints, both of which were not present on the Medical Assessor’s examination. A finding of DRE Lumbar Category I was appropriate and open to the Medical Assessor; and attracts the 0% WPI assessment confirmed in the MAC.
(n) It was not necessary for the Medical Assessor to make mention of the severity, frequency, extent, aggravating factors, or relieving factors of the appellant’s lumbar symptoms for his assessment to accord with the Guidelines or the AMA 5. As for the allegation that the Medical Assessor failed to address the effect of his lumbar symptoms on activities of daily living as required by part 4.4 of the Guidelines, any loading applied under parts 4.34 and 4.45 of the Guidelines would reasonably apply if there was any base rating of impairment to add the loading to. Further, the Guidelines only require an assessor to provide reasoning for the application of any loading for the impact on activities of daily living if one is applied, not if the loading was omitted (or, in this case, not assessed at all). The appeal must fail in relation to the assessment of the lumbar spine.
(o) The MAC issued on 27 March 2025 be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The Appeal Panel has reviewed the MAC and the evidence in this matter.
The Medical Assessor under “History relating to the injury” wrote:
“Mr Safdarian was involved in an incident at work on 9 November 2021 when he lost his balance, apparently due to treading on a slippery section of the floor, and put his hand down to support himself and noted the onset of pain at his right shoulder. He was reviewed by his general practitioner, Dr Shahari and referred for x-ray and ultrasound examination of the right shoulder which indicated evidence of full-thickness supraspinatus tendon tear, for which he was referred to an orthopaedic surgeon
Dr Bokor, who initially assessed him on 16 March 2022, after which he recommended arthroscopic debridement at the right shoulder with rotator cuff repair and acromioplasty which was undertaken on 12 April 2022.His right arm was then immobilized in a sling for 6 before referral for physiotherapy which continued for 3 months’.
He said that he also noticed pain in the neck at the time of the same subject incident, but has not received any treatment for his neck symptoms.
After his shoulder surgery in April 2022 Mr Safdarian reported noticing numbness in his lower arms and neck at night, for which he was referred to a hand surgeon
Dr Gumley.”Under “Findings on physical examination”, the Medical Assessor wrote:
“Movement in the cervical spine was limited symmetrically with ¾ of normal flexion and extension and ½ of normal flexion to the left and right side. Rotation in each direction was normal.
Right shoulder joint movement was mildly reduced, with flexion possible to 170°, abduction was possible to 160°, extension and adduction were normal range on each side, and internal rotation was slightly reduced in the right arm at 70°, and external rotation was normal.
Although Mr Safdarian described numbness throughout the lower forearm wrist and hand on each side, there was normal movement noted in the wrist and hand on each side, with no significant change in skin sensitivity. On each side Tinnell's test for carpal tunnel syndrome was negative, as was each Phalen's test.
Movement in the lumbar spine was reduced in a symmetrical manner with ½ of lateral flexion to each side possible, and normal flexion and extension. Straight leg raising was normal at 90° on each side and there was no indication of muscle wasting, weakness, or abnormal reflex to indicate radiculopathy in either leg.”
The Medical Assessor referred to various investigations including MRI scans of the right shoulder on 28 February 2022, the lumbar spine on 22 August 2022 and the cervical spine on 7 June 2023.
The Medical Assessor in Part 7 of the MAC noted that the clinical notes of the general practitioner did not mention any reference to neck pain and reported that the appellant had complained of paraesthesia in the left hand in March 2020, two years prior to his right shoulder surgery. The Medical Assessor noted that the appellant underwent an ultrasound on 16 March 2020 to investigate paraesthesia which was reported to have been normal.
In Part 8, under “Reasons for Assessment” the Medical Assessor explained his calculations as follows:
“Right shoulder joint movement was mildly reduced, with flexion possible to 170°, 1% UEI, abduction was possible to 160°, 1% UEI, extension and adduction were normal range on each side, 0% UEI, and internal rotation was slightly reduced at 70°, 1% UEI, and external rotation was normal. UEI of 0%. Therefore, the total UEI for the right shoulder is 3% which converts to 2% WPI.
Although there was reduced movement in the neck and lumbar back there was no evidence of dysmetria or asymmetry and no evidence of increased muscle tone or spasm. There were no abnormal neurological findings to indicate radiculopathy, were normal muscle bulk and strength, and normal reflexes throughout both legs.”
In commenting on the other medical opinions, the Medical Assessor wrote:
“I note the opinion of Dr Raymond Wallace who opined there was no objective medical evidence of any injury to the cervical spine or forearms as a result of
Mr Safdarian's fall on 9 November 2081. He found no evidence of any ongoing disability in the cervical spine or forearms. He also mentioned the history of a previous complaint of paraesthesia in the left hand in March 2020, prior to the subject injury. Dr Wallace found no ongoing evidence of significant low back injury.I also note the opinion of Dr Dias, occupational physician, who opined the presence of chronic bilateral post-traumatic ulnar neuritis and cubital tunnel syndrome affecting each forearm wrist and hand. However, I found no clinical evidence to indicate any such condition at the time of my assessment.
Furthermore, I did not find any asymmetry of spinal movement which appears to be the basis of a significant portion of his assessed permanent impairment level.
Mr Safdarian did not report any leg symptoms to me and there was no evidence of radiculopathy which also constituted part of Dr Dias' assessment.”In Part 9 of the MAC, the Medical Assessor wrote:
“Although there was a past history of a significant back pain condition and long-standing degenerative changes identified radiologically in both the cervical and lumbar spinal regions, no deduction of the assessed impairment level is necessary because there was 0% WPI in each region.”
Right shoulder
The appellant submits that this failure to explain his methodology of assessment as per Guideline 1.48 is a demonstrable error and the application of incorrect criteria.
Paragraph 1.48 of the Guidelines which provides:
“… that 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.”
The appellant submits that the Medical Assessor failed to give proper reasons and to disclose his reasoning process in arriving at an assessment of 2% WPI for the right shoulder. The appellant argued that the Medical Assessor provided little reasoning, and does not refer to or attach a worksheet and did not assess the contralateral joint of the left shoulder.
The Appeal Panel did not accept that it was necessary that the Medical Assessor attach a worksheet to the MAC. The Medical Assessor provided the recorded ranges of motion found on examination of the right shoulder and based his assessment of impairment on those findings. The Appeal Panel is satisfied that it was possible to follow the Medical Assessor’s reasoning process in arriving at a determination of 2% WPI for the right shoulder.
The Appeal Panel considered that any failure to examine the contralateral joint would have had no material impact of assessment as it could not increase the degree of impairment assessed.
The Appeal Panel noted that there was no section in the MAC that provided a summary of injuries and diagnoses and, in particular, a diagnosis in respect of the right shoulder.
Part 1.6 b of the Guidelines provides: “Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
The Appeal Panel is satisfied that the failure to determine a diagnosis in respect of the right shoulder resulted in a demonstrable error as the assessment was made on the basis of incorrect criteria.
This ground of appeal is made out.
Cervical spine
The appellant submits that the Medical Assessor has failed to give any or any adequate reasons for making an assessment of 0% in respect of the appellant’s cervical spine.
The appellant submits that the Medical Assessor’s examinations findings were extremely brief and he did not appear to have tested reflexes and motor power nor sensation. Further, the appellant submits that the Medical Assessor did not, however, make any diagnosis in respect of the appellant’s cervical condition.
The Appeal Panel noted that although the Medical Assessor at part 8c stated that he found no evidence of radiculopathy in the spine, he did not provide any details of his findings in relation to the tests he carried out in order to determine whether the appellant had radiculopathy. The Appeal Panel is satisfied that the Medical Assessor has not exposed his reasoning for the assessment, and this constitutes a demonstrable error.
The Appeal Panel agree that the examination findings were brief. The Appeal Panel notes that the Medical Assessor made no reference to having tested reflexes, motor power nor sensation. The Appeal Panel notes that there was no summary in the MAC that provided a summary of injuries and diagnoses and, in particular, a diagnosis in respect of the cervical spine.
As noted above, Part 1.6 b of the Guidelines provides: “Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
Part 4.24 and Table 4.1 of the Guidelines set out the steps that must be followed to evaluate permanent impairment in the spine. Table 4.1 provides that the procedures in evaluating impairment in the spine include making a diagnosis, after taking a history and carrying out a physical examination.
The Appeal Panel is satisfied that the failure to determine a diagnosis in respect of the cervical spine resulted in a demonstrable error as the assessment was made on the basis of incorrect criteria.
This ground of appeal is made out.
Lumbar spine
The appellant submits that the Medical Assessor made no diagnosis of the appellant’s condition in the lumbar spine and failed to give any or any adequate reasons for the assessment of 0% WPI of the lumbar spine.
The Appeal Panel notes that the examination findings were relatively brief. The Appeal Panel notes that there was no summary in the MAC that provided a summary of injuries and diagnoses and, in particular, a diagnosis in respect of the lumbar spine.
As noted above, Part 1.6 b of the Guidelines provides: “Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
Part 4.24 and Table 4.1 of the Guidelines set out the steps that must be followed to evaluate permanent impairment in the spine. Table 4.1 provides that the procedures in evaluating impairment in the spine include making a diagnosis, after taking a history and carrying out a physical examination.
The Appeal Panel is satisfied that the failure to determine a diagnosis in respect of the lumbar spine resulted in a demonstrable error as the assessment was made on the basis of incorrect criteria.
This ground of appeal is made out.
The Appeal Panel, having found error, concludes that it is necessary for the appellant to undergo a further medical examination because there is insufficient evidence on which to make a determination.
As noted above, Medical Assessor Drew Dixon of the Appeal Panel examined the appellant on 22 August 2025. Medical Assessor Dixon noted that a Farsi interpreter was present. Medical Assessor Dixon provided the following report:
“Accident Details
This 50 year old claimant commenced a business in 2017, a bakery goods store, located in Baulkham Hills trading under the business name of Kian Bread Pty Limited, which specialised in Persian bread and bakery products. He and his wife, who attended the consultation today, co-owned the business and the claimant employed two staff members and he would typically work 50 hours a week for his business starting each day at 4.00 am.
In the nature of running a bakery business, he had to lift dough and bread products often weighing up to 25 kg, do repetitive mixing, knead and lift heavy bakery trays, load ovens, stock racks and display shells, serve customers, train staff, order stock and use hand held bakery implements and tools on a regular basis. The job involved prolonged standing and walking, repetitive heavy pulling and pushing and repetitive tight gripping with both hands, bending and twisting of the back, torso and trunk and intermittent heavy lifting of items weighing in excess of 20 kg and episodes of prolonged neck flexion and intermittent squatting and crouching.
He lived approximately a 10 minute drive from work and would drive to work early in the morning.
Work history
He worked as a baker from 2017 to 2022 and since then has been supervising staff but not doing manual duties.
Social History
He is married and his wife attended the consultation today. They have two children aged 11 and 8. He reports no difficulty with personal care but does have difficulty with heavy household chores and doing the garden and heavy cleaning.
Past History
He recalls prior symptoms of low back pain, which he attributed to the nature and conditions of his employ as a baker.
He was referred for a CT scan of his lumbar spine which was performed on 30 October 2019 which showed degenerative changes in the lumbar spine as well as disc protrusion at L4/5 and L5/S1.
Treatment
At the time of his injury on 9 November 2021 he slipped on a wet tile falling in his bakery and he fell towards his right side, landing on his outstretched right hand, jarring his right shoulder and neck.
He aggravated pre-existing symptoms in his lower back.
He developed paraesthesia in both hands, mainly to the ulnar three digits.
He eventually sought attention from his GP, Dr Mitra Shahry on 6 November 2021 and was referred for an MRI scan of his right shoulder and for physiotherapy treatment.
MRI in early 2022 showed a partial thickness rotator cuff tear and he was referred to Dr Desmond Bokor, orthopaedic surgeon, who recommended surgical intervention and on 12 April 2022 he had right shoulder arthroscopic rotator cuff repair, acromioplasty and biceps tenodesis at Sydney Adventist Hospital. His post-operative course was uneventful. He was in a sling for several weeks followed by physiotherapy.
Present Symptoms
His right shoulder gradually improved but he still had pain and stiffness in his neck, particularly when elevating the arm and had right sided neck pain which has improved.
He had marked low back pain with radicular complaint with some left sciatica with sciatic radiation which has resolved but he has ongoing difficulty with prolonged standing and sitting, recurrent bending and stooping which aggravates his back pain. He has a walking tolerance of 20 minutes and a standing tolerance of 20 minutes but has to move about and a sitting tolerance of half an hour and a driving tolerance of 15 to 20 minutes. This enables him to drive and from work in an automatic vehicle.
He has difficulty sleeping on the right shoulder due to pain and his low back pain sometimes disturbs his sleep.
He reports improvement in his neck with some residual trapezial muscle pain.
On review today he localised pain to the deltoid muscle of his right shoulder and the deltopectoral groove. He reported that he had difficulty with heavy lifting and carrying due to right shoulder brachalgia and low back pain.
He reported pain in the lower back with lumbar stiffness with recurrent spasm and pain radiating to the left and right paralumbar regions. He had transient sciatica which has now resolved.
As noted above, he has had intermittent paraesthesia in the ulnar three digits of his left hand and he remarked today he thought he was getting carpal tunnel syndrome on the left.
Examination
On examination at PIC on 22 August 2025 he was 168cm tall and weighed 63kg.
He has a symmetrical range of motion of his cervical spine with flexion extension decreased by one quarter, lateral rotation decreased by one quarter bilaterally and lateral flexion by one third bilaterally. He had mild tenderness of the right trapezius muscle. His cervical foraminal compression test and brachial plexus stretch tests were negative. There was no tenderness of the supraclavicular brachial plexus. His reflexes were symmetrical in both upper extremities. His distal power was grade 5 out of 5 in terms of grip strength, thenar power and intrinsic power. He reported some sensory alteration in the ulnar three digits, which was intermittent and not objectively found today. He did however report this may occur at night after a long day supervising at work.
There was stiffness on elevation of his right shoulder with active abduction 120 degrees, forward flexion 120 degrees with impingement on abduction. Extension was 30 degrees and adduction 30 degrees, associated with pain and external rotation was 80 degrees and internal rotation was 40 degrees. There was weakness of his right shoulder girdle grade 4 out of 5. There was drooping of the right shoulder. There was tenderness of the anterior anterolateral deltoid and in the biceps groove. There was mild tenderness of the trapezius muscle. There was no winging of the right scapular on resisted protraction. There was wasting of the supraspinatus muscle belly. His four arthroscopic portals have healed well.
There was a full range of motion of his left shoulder where power was grade 5 out of 5.
His left upper limb measured 26cm, 10cm above the elbow crease and on the right 27cm and there was no wasting of the forearms, 10cm below the elbow crease, measuring 23cm each. He is right handed.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm with pain on back extension which was decreased by one half. Lateral flexion to the left was decreased by one quarter as was that to the right. He had tenderness at the L5 level in the mid line and the adjacent lumbosacral facet joints. His straight leg raise was 60 degrees bilaterally and associated with tightness of the hamstrings but no sciatica and the sciatic nerve root compression tests were negative. His reflexes were present and symmetrical in both lower extremities. His power was grade 5 out of 5 and there were no objective sensory losses. He was uncomfortable getting on and off the examination couch and became uncomfortable while sitting in the consultation room.
There was no wasting of either thigh or the calves bilaterally, 15cm above the patella. There was no significant limb length discrepancy measuring 88.5cm on the right and 89 cm on the left from the ASIS to the medial malleolus.
His normal gait was slow and toe and heel walking were associated with low back pain, as was squat testing.
Radiological investigations
His investigations include an x-ray of the right shoulder and ultrasound on 6 December 2021 which showed early degenerative OA of the glenohumeral joint with marked widening of the AC joint and full thickness supraspinatus tear.
Right shoulder MRI on 28 February 2022 showed a full thickness supraspinatus tear without moderate cartilage loss at the posteroinferior humeral head.
Lumbar spine MRI on 22 August 2022 showed retrolisthesis at L2 and L3 with facet OA and disc degeneration at L3/4 with broad based disc herniation causing mild right canal foraminal stenosis and at L4/5 there was disc degeneration and reduced height and broad based disc osteophyte complex causing moderate to severe foraminal stenosis and moderate canal stenosis.
Cervical spine MRI on 7 June 2023 showed disc degeneration at C3/4 with a small disc osteophyte complex at C4/5 causing foraminal stenosis bilaterally and reduced disc space with disc osteophyte complex at C5/6 with mild central canal stenosis and severe left and mild right foraminal stenosis due to osteophyte formation and a small disc bulge at C6/7.
Summary
In summary this claimant, in the course of his duties in his bakery business, developed neck, shoulder and low back pain. While his neck has settled reasonably with mild right trapezial pain, he has marked post traumatic stiffness of his right shoulder, despite supraspinatus repair and residual biceps tendonitis with wasting of the supraspinatus muscle belly and difficulty elevating the arm where there is impingement on abduction.
In the lumbar spine he has had a back strain injury in the course of his bakery business with lumbar stiffness with erector spinae muscle spasm and did have transient sciatica pain and today had dysmetria on flexion and extension and facet arthralgia clinically without radiculopathy but had difficulty with toe and heel walking and squat testing due to back pain.
Impairment assessment
That for his cervical spine where he had a previous neck strain injury with stiffness but no dysmetria and some right trapezial muscle tenderness but no radiculopathy in either upper extremity is from Table 15-5, Page 392, DRE 1, 0% whole person impairment.
That for the post traumatic stiffness of his right shoulder is from Pie Charts 16-40, 16-43 and 16-46, AMA 5, 12% upper extremity impairment which equates to 7% whole person impairment.
That for his lumbar spine where his post-traumatic lumbar stiffness with dysmetria, erector spinal muscle spasm with an L3/4 disc herniation and aggravation of osteophyte complex at L4/5 and L2/3 facet OA which is ongoing is from Table 15-3, DRE II plus impaction on ADLs, giving 7% whole person impairment less one-tenth for pre-existing spondylosis, giving 6% whole person impairment.
This gives a total from the Combined Values Chart of 13% whole person impairment.
There was pre-existing cervical and lumbar spondylosis.
He has reached maximum medical improvement.”
The Appeal Panel adopts the report and findings of Medical Assessor Dixon.
The Appeal Panel therefore assesses 0% WPI in respect of the cervical spine, 7% WPI in respect of the right upper extremity (shoulder) and 6% WPI in respect of the lumbar spine. This gives a total from the Combined Values Chart of 13% whole person impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 March 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: | W27500/24 |
Applicant: | Saeid Safdarian |
Respondent: | Kian Bread Pty Limited |
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 Robin Alexander Mitchell and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.cervical spine | 9 Nov 2021 | Table 4.1 Page 26 | Table 15-3 page 384 | 0% | 0% | |
| 2.lumbar spine | 9 Nov 2021 | Table 4.1 Page 26 | Table 15-5 Page 384 | 7% | 1/10th | 6% |
| 3.right shoulder | 9 Nov 2021 | Para 2.5 Page 10 | Figures 16-40, 16-43 and 16-46, pages 476, 477 and 479 | 7% | 0 | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0