Smith v Brambles Industries Ltd
[2025] NSWPICMP 409
•10 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Smith v Brambles Industries Ltd [2025] NSWPICMP 409 |
| APPELLANT: | Steven Smith |
| RESPONDENT: | Brambles Industries Limited |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 10 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the neck and left arm; worker appealed in respect of the deduction under section 323; Held – error found in respect of the left arm as the Medical Assessor deducted the prior award for the subject injury; error found in respect of the deduction made in respect of the neck as no clinical or radiological history to support a condition that pre-existed the subject injury; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
The worker Mr Steven Smith (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 February 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).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request that he be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel for it to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 26 May 2000
· Body parts/systems referred: Neck
Left arm above the elbow (shoulder)
· Method of assessment: Table of Disabilities
The Medical Assessor is to have regard to the Certificate of Determination – Consent Orders dated 14 February 2012 (at page 502 of the Application), in assessing the applicant’s further loss of use of the left arm (shoulder).
PREVIOUS AWARDS OR SETTLEMENTS:
WCC 007905/11 dated 14 February 2012
Date of injury: 26 May 2000
20% - left arm at or above elbow”
To the extent that the referral in the above terms directed the Medical Assessor to assess the appellant’s further loss it was open to be misconstrued. The role of the Medical Assessor is to assess the overall level of impairment on the day of examination and make a deduction in respect of any pre-existing condition, abnormality or injury to arrive at the total impairment or loss as a result of the referred injury. The role of the Medical Assessor is not to assess a degree of further impairment or loss. This is well settled.
The Medical Assessor issued a MAC certifying permanent impairment as follows:
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Neck | 26/05/2000 | 30% | ¾ | 8% |
| Left arm above the elbow (shoulder) | 26/05/2000 | 40% | 20% | 20% |
The worker appealed. There is no complaint on appeal about the overall assessment of loss of the neck and left arm. The complaints concern the deductions made under s 323 in respect of the neck and the left arm. The deductions were submitted to amount to demonstrable error and/or assessments on the basis of incorrect criteria.
In summary, the respondent employer Brambles Industries (the respondent) conceded the error in respect of the deduction made under s 323 for the left arm but otherwise in respect of the neck submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied. The MAC must be read as a whole to determine whether adequate reasoning has been provided.
The Medical Assessor recorded the following history:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On the date of injury, Mr Smith was at work as a dogman, loading a 10 tonne counterweight for a crane. He was trying to align the weight when it pulled away from him, applying a distracting force to his left shoulder. He let go of the chain but felt as though his shoulder had dislocated and spontaneously enlocated. In 2003 he went on to have an MRI of his shoulder, which demonstrated a labral tear. At that time, he had pain in his shoulder radiating into his scapula and around to the base of his neck.
In 2009, he was referred to Dr Herald, Orthopaedic Surgeon. At the time, chronic labral pathology was identified and he underwent a labral debridement / repair. Subsequent to this, he was able to return to work on light duties as a trainer and assessor.
When he had recovered from surgery to his shoulder, he noted he was getting pain in his neck radiating down to his left scapula and then down his left arm, associated with numbness in the hand. Ultimately, he was referred to Dr Donellan, Neurosurgeon. In 2020 he underwent a C4/5, C5/6 anterior cervical discectomy and fusion under
Dr Donellan. He said the procedure helped with pins and needles and numbness extending down the left arm but it did not alter his neck or scapula pain. In 2021,
Mr Smith underwent a reverse left total shoulder replacement under the care of
Dr Herald. He said this procedure was significantly helpful and markedly reduced his pain.· Present treatment:
For the shoulder, he is currently taking no medication. He uses heat packs. He is no longer undertaking a rehabilitation program for his shoulder.
For his neck, he takes no medications and again is not engaged in a rehabilitation program.
· Present symptoms:
For the left shoulder, he is unable to lift any significant weight. He notes restriction in range of movement with difficulty getting the arm beyond horizontal.
For the neck, he has persistent left sided posterior neck pain.
· Details of any previous or subsequent accidents, injuries or condition:
Mr Smith denies any previous injuries to his shoulder or neck.
· General health:
Mr Smith reports that he is otherwise well. Medications include duloxetine and temazepam. He has no allergies.
· Work history including previous work history if relevant:
Nil relevant.
· Social activities/ADL:
Mr Smith is restricted in playing with his son. He previously enjoyed water sports and swimming, which he is now unable to do. He has a contractor doing his lawns and hedges. If he does vacuuming, particularly on carpets at home, he develops neck and back pain.”
The Medical Assessor made the following comment in relation to special investigations:
“I was able to review no imaging related to the injuries today.”
The Appeal Panel considers that this means that he did not view the films but he notes he has had regard to the material in the referral, which the Appeal Panel notes included the imaging reports. The Appeal Panel has reviewed the imaging reports.
The Medical Assessor conducted an examination and recorded his findings as follows:
“On examination he was a well looking man in no obvious distress. There was a 10cm scar anteriorly over the left shoulder, consistent with an approach for shoulder replacement. The range of motion in the shoulders was assessed as follows:
MOVEMENT
LEFT
RIGHT
Flexion
90°
180°
Extension
20°
50°
Abduction
90°
180°
Adduction
10°
40°
Internal rotation
40°
80°
External rotation
40°
80°
Upper limb reflexes were symmetrical with a negative Hoffman test. Peripheral power was intact. Lower limb reflexes were symmetrical with downgoing Babinskis. Again, peripheral power was intact. There was no intrinsic fatigue of ulnar escape. There was a 3cm incision on the right side of the neck, consistent with an approach for anterior cervical discectomy and fusion.”
The Medical Assessor summarised the injury and diagnosis as follows:
“● Summary of injuries and diagnoses:
Mr Smith sustained a distraction injury to his left shoulder and subsequent imaging demonstrated he likely sustained a SLAP tear. He underwent surgical debridement / repair of this and over time, went on to develop glenohumeral osteoarthritis, for which he has undergone a reverse shoulder replacement. He also developed pain in his neck with numbness radiating down his arm. He was diagnosed as having C4/5, C5/6 degenerative disc disease and underwent C4/5, C5/6 anterior cervical discectomy and fusion.
· Consistency of presentation
Mr Smith was cooperative throughout the assessment.
· In making this assessment, I have taken into account the following matters:
Review of the material provided and a detailed examination of the claimant.”
In dealing with the s 323 deduction the Medical Assessor stated as follows:
“(a) Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes.
(b) If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Cervical spine
L arm at or above the elbow – previous award of 20% loss of efficient use.”
It is clear from this statement that the Medical Assessor has fallen into error. The prior award of 20% loss of efficient use of the left arm relates to the subject injury and cannot therefore be the subject of a deduction that relates to an injury, abnormality or condition that pre-existed the injury.
He gave reasons for his assessment as follows:
“My opinion and assessment of impairment:
BODY PART
% IMPAIRMENT
Left arm above the elbow (shoulder)
40% loss of efficient use
Neck
30% loss of efficient use of the neck
In making this assessment, I have taken into account the following matters:
Review of the material provided and a detailed examination of the claimant.
b. An explanation of my calculations, if applicable:
Mr Smith has undergone a reverse total shoulder replacement and has significant loss of motion and function in the left shoulder. 40% loss of efficient use of the left arm at or above the elbow is assessed.
Mr Smith has had a two level anterior cervical discectomy and fusion on his cervical spine. 30% impairment for the neck is assessed.”
There is no complaint on appeal about the overall level of loss assessed for the left arm (40%) and the neck (30%).
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“With respect to the report by Dr Dias dated 12 January 2024, I am in agreement with assessment of 40% loss of efficient use of the left arm at or above the elbow. I have assessed 30% rather than 40% impairment for the neck.
I note the multiple reports by Dr Davies, (2 November 2016, 15 August 2019, 29 October 2018) in addition to the reports by Dr Miniter (dated 12 January 2024 and 25 April 2024). I note their opinions that development of cervical spondylosis is unrelated to the injury. I note Dr Miniter has assessed 15% impairment for the cervical spine and made a 100% deduction on the basis of it being a constitutional condition. I note for the left upper extremity, he has made a 25% assessment of impairment at or above the elbow and again, has made 100% deduction. I am in agreement with there being a significant deduction for the cervical spine.
With respect to the shoulder, however, it appears that Mr Smith sustained an injury likely in the form of a SLAP lesion, which was surgically treated. He has gone on to develop glenohumeral osteoarthritis, which likely had significant contribution from the initial injury and the surgery undertaken to treat it.”
The Medical Assessor went onto give a more detailed explanation in respect of the s 323 deduction for the neck as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a) In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Cervical spondylosis.
b) The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) In the absence of a pre-existing condition, no surgical intervention would have been required for the cervical spine and no impairment for it would be assessable on the basis of injury.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is three-quarters for the following reasons:
(i) Mr Smith indicated the onset of symptoms in the cervical spine occurred some nine years after the indexed injury. The reported pathology is that of constitutional degenerative pathology, which would be expected to be seen on 60% to 70% of asymptomatic individuals Mr Smith’s age.”
Turning first to the deduction of three-quarters made for the neck.
A deduction can only be made under s 323 if the pre-existing condition has contributed to the level of permanent impairment assessed. This requires evidence of a condition that pre-existed injury. There is no evidence, radiological or otherwise, that demonstrates that the appellant had a condition, injury or abnormality in the neck that pre-existed the injury in 2000.
There is evidence as to the development of symptoms in the neck as follows:
(a) in the appellant’s statement of 1 November 2024 he notes that when referring to the injury on 26 May 2000, at paragraph 7, “At the same time, I also felt pain in my neck and lower back”;
(b) in the report of Dr Giblin of 1 June 2021 he notes that in 2003 “at that point in time, he was getting a lot of spasm in the trapezii and it was felt he may require some Botox injections”. He notes that the appellant saw Dr J Herald in 2009 who carried out surgery on his left shoulder and goes on to indicate “…following this he had some relief of his shoulder pain and at that point in time his neck and arm pain were becoming more of an issue to him”;
(c) in the report of Dr M Donnellan (neurosurgeon) of 11 March 2015 he notes that the appellant presented with left neck pain, scapular pain and paraesthesias in his left hand, and goes on to note “The pain is always present but does fluctuate in intensity”. He also notes pins and needles in the left hand;
(d) in Dr Donnellan’s report of 26 August 2015 he notes that MRI scans showed significant disc prolapses at C54/5 and C5/6 on the left side. There was nerve root impingement present. In the report of Dr Donnellan it is recorded that the appellant had given a history of ongoing left sided neck pain and left scapular pain “since an accident at work on 26/05/2000”;
(e) Dr Donnellan notes that the appellant had been referred to a physiotherapist,
Mr Stephen O’Connell, saying at that time that as well as his shoulder pain, the appellant complained of neck pain. He notes that the appellant saw Dr Bodel on several occasions and was referred to Dr Adler in 2008 in terms of his ongoing neck pain, and(f) in the MAC itself the Medical Assessor notes that in relation to previous accidents, injuries, condition that “Mr Smith denies any previous injuries to his shoulder or neck”. There is no evidence to the traverse this history.
There was no clinical history that predates the subject injury and it seems that neck symptoms were present from early on, eventually requiring surgery. In addition there was certainly referred pain into his left arm with radiological evidence of disc lesions, and no other history of any incident or injury, or precipitating factor that might have caused this, apart from his injury on 26 May 2000.
There is nothing to suggest that any deduction should be made as the appellant was only in his early 30s at the time of the injury with no previous history, and the degenerative changes referred to in many reports were only noted many years later.
The deduction made by the Medical Assessor in respect of the neck was on the basis of incorrect criteria and amounted to a demonstrable error and will be revoked by the Appeal Panel.
In respect of the left arm, the deduction was made to take account of the prior award in respect of the subject injury and amounted to a demonstrable error.
When prior awards have been made in respect of the subject injury the role of the Medical Assessor is not to assess further loss after the prior award. It is to assess total loss as a result of the injury. Any calculation of the compensation to be paid is then performed after the MAC issues and is either agreed by the parties or subject to a determination by the Commission, not by a Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on
3 February 2025 should be revoked.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
Matter Number: | W28280/24 |
Applicant: | Steven Smith |
Respondent: | Brambles Industries 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 Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Neck | 26/05/2000 | 30% | NIL | 30% |
| Left arm at or above the elbow (shoulder) | 26/05/2000 | 40% | NIL | 40% |
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