Seccombe v GRT Refrigerated Transport Pty Ltd
[2024] NSWPICMP 786
•21 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Seccombe v GRT Refrigerated Transport Pty Ltd [2024] NSWPICMP 786 |
| APPELLANT: | Paul Leon Seccombe |
| RESPONDENT: | GRT Refrigerated Transport Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 21 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; matter referred to Medical Assessor (MA) for assessment of right upper extremity and scarring; no dispute worker had a right brachial plexus injury; MA failed to assess brachial plexus injury; worker re-examined; assessment made by the Medical Appeal Panel for axillary neuropathy; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 July 2024 Paul Leon Seccombe (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
7 June 2024.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 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 lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 15 March 2024 in which he claimed 24% WPI of the right upper extremity and scarring (TEMSKI). The appellant alleged that on 17 January 2021 he exited his truck and slipped and fell to the ground.
In the Referral for Assessment of Permanent Impairment to Medical Assessor (the referral) dated 9 April 2024 the matter was referred for assessment of whole person impairment (WPI) of the right upper extremity and scarring (TEMSKI) with the date of injury being
17 January 2021.The Medical Assessor examined the appellant on 30 April 2024 and assessed 10% WPI of the right upper extremity and 2% WPI for scarring. The total WPI was 12% as a result of the injury on 17 January 2021.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and that the appellant worker should undergo a further medical examination because there was insufficient information upon which to make a determination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The respondent seeks to admit the following evidence:
(a) report of Dr Chris Walls dated 17 July 2024.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
In State of New South Wales v Ali [2018] NSWSC 1783 (Ali), it was noted by his Honour Harrison J that s 327(3)(b) limited that right of appeal to circumstances where additional relevant information was available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“…section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite...”
The respondent sought to have admitted the report of Dr Walls dated 17 July 2024. This report was obtained by the respondent after the ARD and reply were admitted and after the Medical Assessor examined the appellant on 30 April 2024.
The Appeal Panel accepts that this report of Dr Walls and was not information available to the respondent before the medical assessment. The respondent concedes that, based on this report of Dr Walls, the appellant has suffered a brachial plexus injury. The appellant did not object to the report of Dr Walls being relied upon as fresh evidence to the appeal. On balance, the Appeal Panel considered that report of Dr Walls has considerable probative value.
The Appeal Panel determines that the following evidence, should be received on the appeal:
(a) report of Dr Walls dated 17 July 2024.
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 worker on 1 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. They are not repeated in full but have been considered by the Appeal Panel.
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) Ground 1: The Medical Assessor’s commentary and determination as to causation and liability pertaining to the right brachial plexus extends beyond the scope of the referral, thereby constituting a demonstrable error.
(b) The appellant relies on the medical report of Dr Uthum Dias dated 16 May 2023, who identified injury to the right shoulder, right brachial plexus and scarring as a result of the workplace injury on or about 17 January 2021.
(c) Dr Chris Walls, the Independent Medical Examiner (IME) qualified by the respondent, affirmed that the appellant sustained an injury to the “Right shoulder and right brachial plexopathy” as a result of the injury on or about
17 January 2021. Dr Walls opined there was “insufficient information to confidently calculate the impairment arising from the Brachial plexopathy”.(d) Causation or liability pertaining to the appellant’s right brachial plexus injury was not disputed by the respondent. The present dispute was limited to the appellant’s degree of permanent impairment as reflected in the referral to the Medical Assessor.
(e) Contrary to the limitations of the referral and the dispute, the Medical Assessor erroneously commented on causation pertaining to the appellant’s right brachial plexus injury and applied this erroneous determination in his assessment of WPI. The Medical Assessor’s commentary and determination with respect to the presence and causation of the right brachial plexus injury was beyond the confines and scope of the referral and thus, the MAC contains a demonstrable error.
(f) Ground 2: The Medical Assessor’s failure to examine the right brachial plexus is a demonstrable error.
(g) The referral to the Medical Assessor broadly requests the Medical Assessor to assess the WPI as a result of the right upper extremity injury and scarring. The referral to the Medical Assessor does not seek to limit the WPI assessment to the right shoulder.
(h) It is clear from the report of Dr Dias that the appellant was claiming for lump sum compensation as a result of permanent impairment arising from the right shoulder, the right brachial plexus and scarring. The MAC contains a demonstrable error as the Medical Assessor failed to perform a physical examination to determine whether the appellant possessed impairment to the right brachial plexus.
(i) The referral outlining the “Right Upper Extremity” as an assessable body system obligates the Medical Assessor to perform a thorough physical examination of all impairments within the right upper extremity. It was well documented within the medical reports of Dr Dias and Dr Waller that the impairment to the right brachial plexus was in dispute, and the Medical Assessor ought to have performed a physical examination pertaining to the right brachial plexus.
(j) On the face of the available evidence, notably paragraph 5 – “FINDINGS ON PHYSICAL EXAMINATION”, the Medical Assessor has failed to perform a physical examination on the appellant’s right brachial plexus. There is no evidence, commentary or results within the MAC indicating an examination of the right brachial plexus was conducted in accordance with s 16.5b of AMA 5 and the Guidelines.
(k) Thus, the MAC contains a demonstrable error as the Medical Assessor has failed to uphold his obligations in accordance with the referral as no examination on the right brachial plexus was performed.
(l) Alternatively, in the circumstance an examination of the right brachial plexus was conducted, the MAC contains a demonstrable error as the Medical Assessor has failed to uphold his documentary obligations. The High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 held that: “The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve error of law”.
(m) In the circumstance the Medical Assessor conducted an examination of the right brachial plexus, the MAC contains a demonstrable error as it fails to explain in sufficient detail, the tests that were performed and the results of the examination.
(n) The MAC dated 7 June 2024 should be revoked.
The respondent’s submissions include the following:
(a) Ground 1 – right brachial plexus. The file review report from Dr Wallis dated
17 July 2024 was not available when the ARD and Reply were filed and was only obtained post appeal. The respondent concedes the appellant has suffered a brachial plexus injury as indicated by Dr Wallis.(b) Ground 2 – failure to examine the right brachial plexus. In relation to the principles associated with the Medical Assessor’s clinical observations and decision making in completing a medical assessment, reference is made to State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346.
(c) Paragraph 1.6(a) of the Guidelines provides that: “Assessing permanent impairment involves clinical assessment of the appellant as they present on the day of the assessment taking into account the appellant’s relevant medical history and all available relevant medical information…” This is precisely what the Medical Assessor has done.
(d) Dr Dias, in his report dated 16 May 2023, determined the appellant suffers from ongoing right upper limb weakness and sensory loss secondary to a partial right brachial plexus upper trunk traction injury and made a finding of right brachial plexus upper extremity impairment of 20%.
(e) Dr Walls, in his report dated 10 June 2022, indicated in his report that nerve conduction studies undertaken in May 2021 had seemed to identify a right brachial plexus lesion from which the appellant was recovering. In his report dated 13 February 2024, Dr Walls stated there was insufficient evidence to enable him to confidently calculate the impairment arising from the brachial plexopathy and therefore assessed WPI by reference to the range of motion method.
(f) The Medical Assessor has correctly referred to the MRI of the appellant’s right brachial plexus dated 29 May 2021 which showed the brachial plexus was unremarkable in appearance, returning normal signal. Further, in his report dated 21 June 2021, Dr Shinuo Liu advised the appellant’s MRI of the cervical spine and brachial plexus did not demonstrate any compression of the C5 or 6 nerve roots, or any injury to the brachial plexus.
(g) The EMG/nerve conduction study undertaken on 6 May 2021, was consistent with a left upper trunk plexopathy with reinnervation which Dr Liu characterised as mild. In a series of nerve conduction studies dated 4 August 2021, it was noted there had been further improvement in the right upper trunk plexopathy compared to the previous study.
(h) It was open to the Medical Assessor, upon his review of the available medical evidence and his clinical interpretation of the MRI which was negative for a right-sided brachial plexus injury, to not provide an assessment for brachial plexus injury in accordance with the assessment of Dr Dias.
(i) In Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 wherein Malpass AJ commented that: “A demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.”
(j) Additionally, in Ferguson v State of New South Wales [2017] NSWSC 887, Campbell J said at [23]:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
(k) Page 11 of the Guidelines provides that an assessor must use their judgment “based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guides criteria as intended” to enable an appropriate assessment. Therefore, it is within the jurisdiction of the Medical Assessor to form his own expert opinion as to the level of impairment.
(l) The demonstrable error to which the appellant has referred is merely a difference of opinion for which there is sufficient information and material to support the finding made.
(m) In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) McHugh JA (as he then was) stated at 280: If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The respondent submits the Medical Assessor has provided sufficient reasoning for his findings.
(n) Allowing for these authorities, the appellant has not successfully established that the MAC discloses the categorisation was glaringly improbable, the Medical Assessor was unaware of significant factual matters, a clear misunderstanding could be demonstrated, an unsupportable reasoning process could be made out or the Medical Assessor has expressed more than a difference of opinion in expressing his clinical judgment.
(o) In the event the matter is referred to an Appeal Panel, that the medical assessment certificates ought to 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.
Ground 1 – determination of causation and liability relating to the right brachial plexus
The appellant submitted that the Medical Assessor’s commentary and determination as to causation and liability pertaining to the right brachial plexus extends beyond the scope of the referral, thereby, constituting a demonstrable error.
The Medical Assessor under history noted:
“…His surgeon, Dr Jovanovic reviewed further studies and diagnosed a rotator cuff tear and thought brachial plexus injury should be excluded. He was referred to Dr Liu who diagnosed other (unrelated) neurological issues but did not confirm a right sided brachial plexus injury.”
Under “Findings on Physical Examination” the Medical Assessor wrote:
“He has morbid obesity and walks with wide gait.
He has a scar over the anterior aspect of his right shoulder. This is whiter than the
surrounding skin and the skin is hypersensitive to touch. There is a marked depression under the scar. Looking at the shoulder profile, it is hard to see wasting, given the level of obesity.
Examination of the shoulder range of movement is set out in the table below:
MOVEMENT RIGHT LEFT
Flexion 90 180
Extension 40 50
Abduction 80 170
Adduction 20 40
Internal rotation 40 70
External rotation 40 80
The elbow examined with equal range of movements each side.”
Under “Details and Dates of Special Investigations” the Medical Assessor wrote:
“MRI 18/03/2021 Massive right side rotator cuff tear, complete rupture long head of biceps, with retraction.
Dr A Louiselle, 6/5/2 neurological studies “moderate to severe left(!) upper trunk plexopathy with early reinnervation” plus generalized long axis sensory motor neuropathy of arms and legs, plus bilateral carpal tunnel. He has reviewed the MRI and notes no brachial plexus injury in right shoulder.
Dr U Dias 16/04/2023 IME that has listed brachial flexus injury.
Dr C Walls notes only unrelated carpal tunnel which is planned for surgical repair.”
The Medical Assessor summarised the injuries and diagnoses as:
“Fracture dislocation of right humerus
Rotator cuff injury right shoulder.”
The Medical Assessor assessed 16% UEI of the right shoulder based on the restriction of movement found in the examination. This was converted to 10% WPI. A further 2% WPI was assessed for scarring under TEMSKI methodology.
In commenting on the other medical opinion, the Medical Assessor wrote:
“Dr Dias notes a range of movement restrictions similar to my assessment. He has concluded from the notes that there is a brachial plexus injury and has assessed this.
This was an early suggestion of Dr Jovanovic who referred for confirmation or exclusion. The nerve studies show left side problems, and bilateral carpal tunnel, and the MRI was negative for this right sided brachial plexus injury.
Dr Walls has assessed only on the ROM. He notes upcoming carpal tunnel surgery and wonders if this may help symptoms.”
Dr Jovanovic, treating orthopaedic surgeon, in a report dated 1 March 2021, noted on clinical examination that there was obvious clinical wasting of the deltoid muscle most likely due to axillary nerve or plexus brachialis injury. Dr Jovanovic wrote:
“On the basis of history, clinical examination and investigations available I believe Paul has sustained a fracture dislocation of his shoulder damaging most of the glenoid and also causing a neurological traction injury to either the upper fibres of the plexus brachialis or the axillary nerve itself. Since he has weakness of external rotation and abduction it does sound like Erb’s palsy which is usually the result of the superior trunk of the plexus brachialis injury.”
Dr Andre Loiselle, consultant neurologist, in a report of nerve conduction studies and EMG study of the upper limbs dated 6 May 2021 made the following comments:
“There is a moderate to severe subacute left upper trunk brachial plexopathy, with early signs of reinnervation.
There is electrophysiological evidence of a severe generalised length dependent axonal sensorimotor neuropathy affecting the legs and arms.
There is also evidence of a severe median neuropathy of both wrists, consistent with severe bilateral carpal tunnel syndrome.”
In the report of MRI scan of cervical spine and brachial plexus dated 29 May 2021,
Dr Stephen Currin, radiologist, concluded:“Moderate upper cervical spondylosis with moderate to marked bilateral C3/4 and moderate bilateral C4/5 and C5/6 degenerative intervertebral foraminal stenosis, contacting the exiting nerve roots at these levels. No high grade nerve root impingement. No focal disc protrusion. Unremarkable brachial plexus. Please note that on the previous MRI right shoulder, a Grade 2 posterior deltoid muscle strain with partial thickness tearing was noted as well as fatty atrophy of the supraspinatus, infraspinatus and subscapularis muscle bellies secondary to chronic massive rotator cuff rupture.”
Dr Shinou Liu, consultant neurosurgeon, in a report dated 21 June 2021, noted there had been improvement since the last review in shoulder function and deltoid paraesthesia. Dr Liu found that there was only mild 4/5 weakness of right shoulder abduction and external rotation, with near normal forward flexion. He wrote:
“His MRI cervical spine and brachial plexus did not demonstrate any compression of the C5 or 6 nerve roots, or any injury to the brachial plexus, The EMG/NS was consistent with an upper trunk plexopathy with reinnervation. Paul probably had a mild traction/neuropraxis injury to the upper trunk.”
In a referral dated 21 June 2012 from Dr Liu to Dr Loiselle, the clinical details provided were as follows: “R brachial plexus traction injury – upper trunk plexopathy w reinnervation 6/5/21. Progress EMG/NCS in August to ensure ongoing improvement.”
Dr Loiselle, in a report dated 4 August 2021, following further nerve conduction studies, concluded:
“There has been an improvement in the right upper trunk plexopathy compared to the previous study.
There is also a severe medial nerve neuropathy at both wrists, consistent with severe bilateral carpal tunnel syndrome.
There is electrophysical evidence of a generalised length dependent axonal sensori-motor neuropathy.”
Dr Walls, occupational physician, in a report dated 10 June 2022, noted that there was some right deltoid and infraspinatus wasting. Dr Walls considered that the accident caused a fracture dislocation of the right shoulder and also appeared to have caused a right brachial plexus lesion which appeared to be recovering slowly.
In a report dated 16 May 2023, Dr Dias, carried out a neurological examination of the upper limbs and wrote:
“Mr Seccombe was noted to have marked wasting of the right deltoid muscle contour and mild wasting of the right biceps musculature on inspection of the right upper limb. He had mild weakness of the right shoulder at 4/5 power with respect to abduction and flexion as well as mild weakness (4+/5 power) with respect to flexion of the right elbow and extension of the right wrist. His biceps region was sluggish. There was patchy sensory loss in a distribution consistent with the right C5 and C6 dermatomes with reduced sensation to sharp touch and light touch, along the lateral and anterior aspects of he right arm, right forearm into the right thumb. There were no other objective motor or sensory deficits noted on neurological examination of Mr Seccombe’s right and left upper limbs. Neurological examination findings were consistent with a partial right brachial plexus upper trunk traction injury.”
Dr Dias made an assessment of 16% UEI using the Range of Movement Impairment Estimates as per figures 16-40 to Figure 16-46 in AMA 5 (Chapter 16) and 20% UEI in respect of the right brachial plexus injury. These impairments combined to give 33% UEI or 20% WPI of the right upper extremity. Dr Dias assessed 1% WPI for scarring, resulting in a total WPI assessment of 21%.
Dr Walls, in a report dated 13 February 2024, stated that the injury on 17 January 2021 caused a fracture dislocation in the right shoulder and a right brachial plexopathy. He wrote:
“I find it difficult on the information available to differentiate between the various causes of Paul’s upper limb pain, his cervical spine, the possibly still measurable brachial plexopathy, the shoulder injury and his carpal tunnel syndrome (+/- Right cubital tunnel syndrome).”
Dr Walls considered that he had insufficient information to calculate the impairment arising from the brachial plexopathy but assessed 13% UEI of the right shoulder using the range of motion method.
In the file review report dated 7 June 2024, Dr Walls assessed 25% UEI for the right brachial plexopathy.
In the report of MRI scan of cervical spine and brachial plexus dated 29 May 2021,
Dr Stephen Currin concluded:“Moderate upper cervical spondylosis with moderate to marked bilateral C3/4 and moderate bilateral C4/5 and C5/6 degenerative intervertebral foraminal stenosis, contacting the exiting nerve roots at theses levels. No high grade nerve root impingement. No focal disc protrusion. Unremarkable brachial plexus. Please note that on the previous MRI right shoulder, a Grade 2 posterior deltoid muscle strain with partial thickness tearing was noted as well as fatty atrophy of the supraspinatus, infraspinatus and subscapularis muscle bellies secondary to chronic massive rotator cuff rupture.”
The Appeal Panel notes that causation and liability in relation to the applicant’s right brachial plexus injury was not disputed. In the respondent’s submissions, the respondent conceded that the appellant had suffered a brachial plexus injury as indicated by Dr Walls.
The Appeal Panel notes that the dispute was limited to the degree of permanent impairment of the right upper extremity and for scarring. Both IMEs had expressed the opinion that the appellant sustained both a fracture dislocation injury of the right shoulder and a brachial plexus injury to the right shoulder in the incident on 17 January 2021. The Medical Assessor, in omitting the brachial plexus injury in his summary of injuries and diagnoses, failed to assess part of the claim that was before him. This omission and failure to make an assessment of the brachial plexus injury was a demonstrable error.
The Appeal Panel also notes that the Medical Assessor did not refer to the second nerve conduction report on 4 August 2021. The Medical Assessor had referred to the first report of 6/5/2 [sic] and the “moderate to severe left(!) upper trunk plexopathy with early reinnervation” and appeared to focus on the word “left”. The Appeal Panel infers from this that the Medical Assessor assumed that there was no right brachial plexus injury.
The second nerve conduction study report dated 4 August 2021 and the referral from Dr Liu dated 21 June 2021 identify a right brachial plexus injury and right upper trunk plexopathy. The Appeal Panel considers that the reference to “left upper trunk plexopathy” in the report of 6 May 2021 is incorrect and Dr Loiselle should have referred to “right upper trunk plexopathy.”
The Appeal Panel accepts that both IMEs, Dr Dias and Dr Walls made assessments of impairment that included a right brachial plexus injury. The Appeal Panel considers that although it might be open to the Medical Assessor to conclude that there was no WPI as a result of the injury to the right brachial plexus, it was not open to him to find that no such injury had occurred.
Grounds 2 and 3 - Failure to examine the right brachial plexus and give adequate reasons
The appellant submits that the Medical Assessor’s failure to examine the right brachial plexus is a demonstrable error.
The Appeal Panel considers that the Medical Assessor’s examination should have included a full examination and proper clinical evaluation of the right brachial plexus. From the absence of any description or details of a neurological examination in the MAC, the Appeal Panel infers that the Medical Assessor failed to carry out a proper neurological examination. The Medical Assessor should not merely rely on the opinions expressed by other doctors. The Appeal Panel also notes that a brachial plexus injury should be diagnosed clinically as scan findings cannot always be relied upon to exclude such an injury.
The reliance by the Medical Assessor only on the nerve conduction studies and MRI is not, in the view of the Appeal Panel, an adequate basis upon which to make an assessment of impairment resulting from a brachial plexus injury. The Appeal Panel considers that the Medical Assessor should have conducted a neurological examination of the appellant and based his findings on the neurological examination, the results of clinical findings as well as on the tests and studies. The failure to conduct a proper examination to determine if there was impairment from the brachial plexus injury is a demonstrable error. Further, the failure to provide an adequate report of a neurological examination of the appellant, in circumstances where the Medical Assessor was to make an assessment of a brachial plexus injury, is a demonstrable error. It follows that the Appeal Panel accepts the appellant’s submission that the Medical Assessor failed to provide adequate reasons in relation to the assessment of the brachial plexus injury.
The Appeal Panel notes that the Medical Assessor appeared to have assumed that the brachial plexus injury was on the left, which was incorrect. While the Appeal Panel noted that the Medical Assessor referred to “Dr A Louiselle, 6/5/2 neurological studies ‘moderate to severe left (!) upper trunk plexopathy with early reinnervation’” in the MAC, he did not refer to the report of Dr Loiselle dated 4 August 2021. In the report of 4 August 2021, which was written following further nerve conduction studies, Dr Loiselle concluded: “There has been an improvement in the right upper trunk plexopathy compared to the previous study”.
The Appeal Panel also noted that in the referral dated 21 June 2012 from Dr Liu to
Dr Loiselle, the clinical details provided were as follows: “R brachial plexus traction injury – upper trunk plexopathy with reinnervation 6/5/21. Progress EMG/NCS in August to ensure ongoing improvement.”The Appeal Panel was satisfied that the reference by Dr Loiselle to a “moderate to severe subacute left upper trunk brachial plexopathy, with early signs of reinnervation” in his report of nerve conduction studies was incorrect in that he referred to the left upper trunk. Dr Loiselle described a left brachial plexopathy by mistake instead of a right brachial plexopathy. This mistake was corrected in the later report of Dr Loiselle dated 4 August 2021. The Appeal Panel was satisfied that there was a misunderstanding on the part of the Medical Assessor concerning the opinions expressed by Dr Louiselle.
The Appeal Panel 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 of degree of impairment of the brachial plexus injury. In particular, no details and findings of any neurological examination were provided in the MAC.
As noted above, Medical Assessor Drew Dixon re-examined the respondent on
1 November 2024. Dr Dixon provided the following report:“Accident Details
This 60 year old truck driver slipped and fell from the driver’s door of his truck at approximately 6.00 pm on the evening of 17 January 2021 sustaining a fracture dislocation of his right shoulder. He attended Coffs Harbour Hospital where he had closed reduction performed and a sling applied. After orthopaedic review, he had open repair of the rotator cuff on 22 June 2021 followed by physiotherapy. He was able to return to work part-time more than one year after the accident but his post-operative course was complicated by difficulty lifting and loading his truck and doing tasks above shoulder height due to residual pain and stiffness in his right shoulder, where he had paraesthesia over the deltoid muscle and paraesthesia extending to the fingers of her right hand and was thought to have C5/6 axillary nerve injury with possibly upper trunk brachial plexopathy.
He was referred to a neurosurgeon, Dr Shinuo Liu, who reviewed him on 26 April 2021, noting that the claimant had an MRI and CT of the shoulder demonstrating tears of the right subscapularis, infra and supraspinatus and there was clinical evidence of axillary nerve injury. He felt it was difficult to exclude an upper trunk brachial plexopathy and arranged for nerve conduction studies and EMGs which initially reported moderate to severe sub-acute left upper trunk brachial plexopathy with early signs of re-innervation on 6 May 2021 but also showed severe median neuropathy of both wrists consistent with severe bilateral carpal tunnel syndrome and the claimant had bilateral carpal tunnel decompression performed.
On 22 June 2021 the claimant had operative findings from Baringa Private Hospital of a massive rotator cuff tear involving the supraspinatus, subscapularis, and infraspinatus with significant retraction and although his orthopaedic surgeon, Dr Oakes Davanovic, thought the tears seemed unrepairable at the time, he managed to re balance the rotator cuff by repairing the subscapularis and infraspinatus and performed a long head of biceps tenotomy with anchors and fibre tape, due to the complex displacement of the biceps from its groove and into the joint space. He was expecting the claimant to make a reasonable recovery, although with some weakness of his shoulder in the future. He was put in an abduction pillow sling.
Eventually a suitable duties plan dated 16 September 2021 was made for the claimant to return to suitable duties on reduced hours, commencing on 21 September 2021 where he was upgraded to four hours, three days a week. He is currently doing 4 to 6 hours any week as a truck driver working for GRT Transport.
He had bilateral carpal tunnel decompression on 29 February 2022 under the care of Dr Marshall, orthopaedic surgeon.
At work he has retained his MC truck driver’s licence.
Past Health
He has diabetes for which he takes Jardiamet and previously took Lyrica for neuropathic pain and Oxycontin and Endone for pain relief and he takes Eliquis as an anti-coagulant.
He reports no significant injury in the past to his right shoulder. The only significant injury in the past that he recalled was to his right calf and right fibula while working at a depot in Newcastle in his duties as a transport co coordinator with G and T Interstate Transport. He has a history of sciatica in his right leg.
Work History
He worked as a truck driver for 40 years including 9 years as a road train operator and some 6 years driving refrigerator trucks. He is working part-time now.
Social History
He is a single man who lives in a one level dwelling in a small house. He reports some difficulty with heavy cleaning, doing the garden and lawns and cleaning the car and doing his toe nails.
Present Symptoms
He reports difficulty sleeping on his right shoulder and difficulty lifting above shoulder height and doing overhead work at home and that the paraesthesia in his right arm and hand have in the main settled with some residual tingling in the tips of the fingers of both hands. He reports the carpal tunnel scars have not settled completely and he indicated they were tender today.
Current Treatment
He takes Nurofen as required and does his own exercises with a theraband and sees his local doctor regularly and will see his orthopaedic specialist and carpal tunnel surgeon as referred.
He had been taking Endep at night for sleeping and taking a statin for raised cholesterol and an anti-coagulant for atrial fibrillation.
Examination
On examination at the PIC rooms on 1 November 2024 he was 5’8” tall and weighed 125.6kg.
There was stiffness on elevation of his right shoulder with active abduction 70 degrees, forward flexion 90 degrees, extension 40 degrees, adduction 30 degrees, external rotation 70 degrees and internal rotation 40 degrees. Shoulder girdle power was grade 4 out of 5. There was sensory loss in the vaccination area over the axillary muscle.
The range of motion of his left shoulder was full.
He had a full range of motion of both elbows, wrists and hands. His shoulder girdle power on the right was grade 4 out of 5 and grade 5 out of 5 on the left. His biceps flexion and elbow extension were grade 5 out of 5 and finger extension was grade 5 out of 5 as was grip strength, thenar power and intrinsic power of both hands. There was no wasting of his right upper extremity measuring 38cm, 10cm above the elbow on the right and 37cm on the left and both forearms measured 29cm, 10cm below the elbow. There was no winging of the right scapula.
There was a long tender 12cm hypertrophic scar with pigmentation and the claimant was able to localise the scar which is visible when wearing a singlet or when in a swimming costume and the claimant remains conscious of the scar. There were some staple marks visible with minimal contour defect and negligible effect on ADLs.
He had a full range of motion of his cervical spine. The trapezius muscles were non-tender and there was no tenderness of the supraclavicular brachial plexus and his cervical foraminal compression test and brachial plexus stretch tests were negative.
He has recently has had right total knee replacement some five months ago.
Investigations
His investigations include the MRI of the right shoulder on 17 March 2021 which showed complete rotator cuff tear and rupture involving the supraspinatus and infraspinatus sand subscapularis muscles with a large joint effusion. There is AC joint arthrosis.
Summary
His diagnoses are:
1. Reduced fracture dislocation of his right shoulder with post traumatic stiffness with repair of the infraspinatus and subscapularis with impingement on abduction;
2. Axillary neuropathy grade 4 out of 5 with sensory changes in the vaccination area over the deltoid muscle and weakness of his shoulder girdle without distal weakness in the arm and bilateral carpal tunnel decompression with some residual sensory change in the tips of the fingers.
WPI
That for the post traumatic stiffness of the right shoulder is from Pie Charts 16-40, 16-43 and 16-46, Pages 476-9, 16% UEI. That for the grade 4 out of 5 axillary neuropathy is from Table 16-15, Page 492, 25% of 38%, giving 9.5%, which equals 10% UEI. This gives a total from the Combined Values Chart of 24% UEI which equates to 14% WPI.
He has reached maximum medical improvement.
There were no symptomatic pre-existing conditions.”
The Appeal Panel adopts the report and findings of Medical Assessor Dixon. The Appeal Panel assesses the appellant as having 14% WPI of the right upper extremity (comprising 16% UEI for post-traumatic stiffness of the right shoulder and 10% UEI for axillary neuropathy). The Appeal Panel notes that the sensory loss is included in the 38% Maximum UEI for the axillary nerve, both sensory and motor, in the third column of combined motor and sensory deficits from Table 16-15, page 492.
The Medical Assessor assessed 2% WPI for his surgical scar at the right shoulder (TEMSKI Table 14.1, Page 74 of the Guidelines). Therefore, the total WPI from the Combined Values Chart is 16%.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 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: | W2152/24 |
Applicant: | Paul Leon Seccombe |
Respondent: | GRT Refrigerated Transport 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 Peter Honeyman 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.Right upper extremity | 17/01/2021 | F 16-40 p476 F 16-43 p477 F 16-46 p479 T 16-15 p492 | 14% | 0 | 14% | |
| 2.Scarring | 17/01/2021 | T14.1 p74 | 2 | 2 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0
11
0