St Charbels College v Stevanovski

DETERMINATION OF APPEAL PANEL
CITATION:	St Charbels College v Stevanovski [2023] NSWPICMP 349
APPELLANT:	St Charbel’s College
RESPONDENT:	Marianco “Mario” Stevanovski
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	24 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of right upper extremity and cervical spine; Medical Assessor (MA) assessed impairment from a right carpal tunnel condition as well at the right shoulder; no claim made for carpal tunnel condition; Panel satisfied that the dispute between the parties was a dispute concerning the degree of permanent impairment in the right shoulder and cervical spine and the MA erred in assessing impairment that was unrelated to the injury referred for assessment; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 May 2023 St Charbel’s College (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 April 2023.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The respondent (Mr Stevanovski) sustained an injury to his right shoulder in the course of his employment on 17 September 2015 and a consequential condition in the cervical spine.
The matter was referred to the Medical Assessor, Dr Cyril Wong, on 21 February 2023 for assessment of whole person impairment (WPI) of the cervical spine and right upper extremity with the date of injury being 17 September 2015.
The Medical Assessor examined Mr Stevanovski on 24 March 2023 and assessed 7% WPI of the cervical spine and 22% WPI of the right upper extremity. The Medical Assessor made no deduction pursuant to s 323 of the 1998 Act. The combined total was 27% WPI as a result of the injury on 17 September 2015.

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 Mr Stevanovski 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 it was not necessary for Mr Stevanovski to undergo a further medical examination because there was sufficient evidence 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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a)    The Medical Assessor made an assessment on the basis of incorrect criteria and/or has made a demonstrable error in:
(i)assessing impairment resulting from a right carpal tunnel condition which was not injured on 17 September 2015 and for which no claim for permanent impairment compensation was made;
(ii)failing to provide reasons for accepting that maximum medical improvement (MMI) had been reached;
(iii) not providing sufficient reasons for assessing the right shoulder loss of movement without reference to the uninjured left shoulder;
(iv) his assessment of the cervical spine and, in particular, attributing a restriction of movement towards the injured shoulder as impairment of the spine, and
(v) attributing restrictions in activities of daily living (ADL) to the cervical spine impairment.
(b)    Assessment of impairment from a carpal tunnel syndrome – there was no basis for the Medical Assessor to provide an assessment associated with right sided carpal tunnel syndrome. Whilst the referral noted assessment was required of the right upper extremity, it was apparent from the claim and the response to the claim that this was in relation to the right shoulder only.
(c)    The material filed in both the Application to Resolve a Dispute (ARD) and in the Reply demonstrated that the appellant had not accepted that Mr Stevanovski’s bilateral carpal tunnel syndrome was associated with the work injury on
17 September 2015. No challenge had been made to the appellant’s decision and no further claim made in relation to the right carpal tunnel condition.
(d)    Neither Dr Bodel nor Associate Professor Miniter, had assessed impairment as a result of the carpal tunnel condition.
(e)    There was no evidence to suggest that Mr Stevanovski had sustained a carpal tunnel injury on 17 September 2015, nor was there evidence to suggest that the carpal tunnel condition bore any relationship to the injury to the right shoulder sustained on that date.
(f)    The Medical Assessor had taken a history that the carpal tunnel condition arose bilaterally ‘since about 2018’. He noted that surgery for the carpal tunnel condition had not been approved by the appellant. The Medical Assessor provided no reasoning as to why the carpal tunnel condition on the right side only (notwithstanding the condition presented at the same time bilaterally) was as a result of an injury to the right shoulder on 17 September 2015.
(g)    The Medical Assessor made a demonstrable error in assessing impairment that was unrelated to the injury referred to him. He made a further demonstrable error in providing no reasoning for assessing impairment of the carpal tunnel condition as being associated either with the right shoulder injury or as a result of an injury occurring three years before its presentation. He demonstrably erred in providing no reasoning as to why the right sided carpal tunnel condition was assessable but not the left sided carpal condition that arose at the same time.
(h)    MMI - the appellant initially declined Mr Stevanovski’s claim for permanent impairment compensation on the basis that MMI had not been reached.
(i)    The Medical Assessor has observed that the right shoulder condition has deteriorated since Dr Bodel’s examination in 2021.
(j)    In these circumstances the Medical Assessor was required, for the purposes of performing his statutory role, to provide reasons as to why he could be satisfied that MMI had been reached. The Medical Assessor made no comment in relation to prognosis noting that he had before him the opinion of Associate Professor Miniter commenting on prognostic issues in the context of adhesive capsulitis conditions affecting diabetics. It was apparent from the material contained in the ARD that Mr Stevanovski’s condition has fluctuated over time and that his range of motion in the right shoulder has similarly fluctuated. In these circumstances, with MMI in issue, the Medical Assessor was required to provide reasons for accepting that MMI had been reached and he demonstrably erred in failing to do so.
(k)    Assessment of right shoulder - the Medical Assessor assessed Mr Stevanovski on the basis that his adhesive capsulitis affecting the right shoulder was wholly as a result of the injury in 2015 and bore no relationship to his condition of insulin dependent diabetes.
(l)    The Medical Assessor did not set out limitations in range of motion of the left shoulder merely noting that as there was a previous injury to the left shoulder it could not be compared.
(m)     In failing to even measure the loss of motion in the left shoulder, the Medical Assessor demonstrably erred as he had not set out the basis for his conclusion that it was inappropriate to compare ranges of motion. The Medical Assessor had not made or considered the diagnosis relevant to the left shoulder, nor whether any loss of range of motion in the left shoulder was as a result of the earlier injury (rather than, say, adhesive capsulitis of constitutional origin).
(n)    Assessment of the cervical spine - the Medical Assessor made reference to
Mr Stevanovski jarring his neck in the subject incident in 2015 and otherwise referred to injury to the cervical spine. He provided no diagnosis, however. The Medical Assessor did not refer to any imaging of the cervical spine and did not identify any pathology in the cervical spine.
(o)    The Medical Assessor noted that there was normal alignment of the cervical spine and there were no neurological abnormalities that would be associated with injury to the cervical spine. In the absence of any diagnosis or recognisable pathology, the Medical Assessor erred in attributing a loss of movement that was (without providing measurements) said to be more pronounced on the right hand side to an injury to the cervical spine rather than the restriction in movement being associated with the bilateral shoulder injuries.
(p)    At a minimum, there was a demonstrable error in the Medical Assessor failing to provide reasons in this regard.
(q)    Attribution of restrictions in ADL to the cervical spine - in attributing 2% WPI for restrictions in ADL the Medical Assessor has simply indicated that the additional 2% WPI “was rated for ADL restriction for performance of household tasks as described”. Mr Stevanovski’s difficulties in relation to the performance of household tasks was associated with his bilateral shoulder conditions. To the extent that the Medical Assessor believed there was any contribution to restrictions in Mr Stevanovski’s ADL as a result of the cervical spine, he demonstrably erred in failing to provide his reasoning. This was particularly so in light of the failure of the Medical Assessor to provide a diagnosis or identify pathology in relation to the cervical spine.
(r)    Mr Stevanovski should be re-examined by a medical assessor on the Appeal Panel and assessed for impairment as a result of his injury.
Mr Stevanovski’s submissions included the following:
(a)    Assessing impairment resulting from a carpal tunnel syndrome - The appellant’s submissions were misconceived with reference to Leeming JA’s remarks in Skates v Hills Industries Ltd [2021] NSWCA 141. The Medical Assessor’s assessment was not limited by the terms of any referral and the Medical Assessor’s assessment was to be guided by the dispute raised by
Mr Stevanovski. The Medical Assessor was not restricted solely by the terms of the referral and was to determine the medical dispute that existed between the parties as presented for resolution (Mifsud v Pitador Excavations Pty Limited t/as JD Concrete Pty Ltd [2022] NSWSC 1010 at [55] – [57]).
(b)    Even on the appellant’s own submissions, there was a dispute pertaining to Mr Stevanovski’s carpal tunnel syndrome. As part of the medical dispute, the Medical Assessor assessed impairment resulting from this disputed condition. This was appropriate noting the above.
(c)    However, even if Skates and Mifsud were ignored, the Medical Assessor’s assessment was appropriate and consistent with the fact that the right upper extremity had been referred to the Medical Assessor for assessment and the Medical Assessor explicitly assessed impairment resulting to injury sustained to the right upper extremity. The referral did not suggest that the Medical Assessor erred in his assessment because he assessed impairment resultant to the body part referred for assessment.
(d)    With respect to the appellant’s submissions regarding the Medical Assessor’s assessment being limited to the right side only, those submissions were irrelevant and misconceived. The Medical Assessor’s assessment was not demonstrative of error because, it was presumed, his assessment of an additional body part or system would have yielded a higher impairment rating. Accordingly, the submissions were not material to the appeal. Moreover, the Medical Assessor was not required to give reasons for decisions/determinations that he did not make. It was clear, based on the MAC, why he assessed the right sided carpal tunnel condition in the manner that he did and what the resultant impairment assessment was. That was not demonstrative of error.
(e)    Not providing reasons regarding MMI - the appellant sought to construe the Medical Assessor’s reasons contrary to what was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272. The Appellant has not construed the Medical Assessor’s decisions fairly, nor wholly. The appellant also failed to grasp the fact that the Medical Assessor’s task was not to adjudicate between the competing medical evidence lodged by the parties but he had to form his own opinion based on his own examination (Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]). The Medical Assessor’s assessment was to be conducted on the basis of the presentation on the day of the examination.
(f)    When the reasons provided in the MAC were read, it was clear that, based upon his examination of Mr Stevanovski on the day of the examination, the Medical Assessor determined he had reached maximum medical improvement and, subsequently, assessed impairment.
(g)    There was no requirement for the Medical Assessor to provide reasons for findings that he did not make or provide a more elaborative answer to the question “Have all body parts/systems stabilized/reached maximum medical improvement?” than the “Yes” provided.
(h)    Assessment of right shoulder - the appellant’s submissions ought to be rejected as there was no actual submission as to why the Medical Assessor’s determinations were erroneous. The Appellant ignored the Guidelines under which the Medical Assessor was provided with discretion with respect to the assessment conducted. In this regard, the Medical Assessor explicitly indicated why he did not utilise the left shoulder as part of his assessment. There was no demonstrable error in this regard.
(i) Assessment of the cervical spine - pursuant to the DRE assessment method, DRE category II, the category which the Medical Assessor assessed Mr Stevanovski’s cervical spine, is a clinical diagnosis itself (clause 4.17(sic) of the Guidelines). The appellant’s submissions were misconceived because it was effectively requiring the Medical Assessor to determine the presence of an injury pursuant to section 4 of the Workers Compensation Act 1987 which the Medical Assessor plainly was not required to do. If the appellant wanted to take issue with the presence, or not, of a specific diagnosis, then it ought to have challenged/disputed same before a Member (see Dywidag Systems International Pty Ltd v Melksham [2020] NSWWCCPD 41 at [114]).
(j)    Attribution of restrictions in ADLs to the cervical spine - to the extent that the appellant repeated its submissions with respect to pathology of the cervical spine, the appellant’s submissions ought to be rejected. To the extent that the appellant has sought to challenge the finding that the restrictions to the Mr Stevanovski’s activities of daily living, these submissions ought be rejected because they were inconsistent with the fact that there was no requirement that the restrictions be solely related to the cervical spine. To suggest this was misconceived as any injury has the potential to create a restriction to a person’s capacity to participate/undertake in various activities.
(k)    Such a suggestion was contrary to the propositions that there can be multiple causes of incapacity (Calman v Commissioner of Police [1999] HCA 60; (1999) 73 ALJR 1609; Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435). In other words, just because Mr Stevanovski’s restrictions may have been contributed to by impairment to other body parts, this did not matter because the accepted cervical spine injury, in a material sense (see Murphy v Ality Management Services Pty Ltd [2015] NSWWCCPD 49) contributed to the relevant restrictions.
(l)    The appeal is misconceived and ought to be rejected.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

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, below and in the body of this decision.
Under “History relating to the injury”, the Medical Assessor wrote:
“On 17 September 2015, Mr Stevanovski was training several senior
students in Futsal near the edge of the boundary where there was a cyclone wire fence. He was nudged by a student causing him fall into the fence and the fingers of his right hand were caught into the fence and he jolted and strained his right shoulder and neck as the result. Mr Stevanovski consulted his general practitioner Dr Oreb at Newtown for his injuries. An ultrasound was performed to the right shoulder and he was referred to orthopaedic surgeon Dr Jeffrey Petchell. Right shoulder rotator cuff tear was diagnosed. Mr Stevanovski was treated conservatively. Surgery was suggested by Dr Petchell but approval for surgery was not received due to some mixed up at the insurance company. Surgery on the right shoulder has not been performed. The left shoulder was injured in a prior accident on 22 April 2015. Mr Stevanovski underwent surgery on 17 February 2017 to release the frozen left shoulder and reattachment of the biceps tendon. The surgery was deemed to be unsuccessful by the worker. Since about 2018, Mr Stevanovski began experiencing intermittent numbness in his thumb, index and middle fingers on both hands. Subsequent nerve conduction studies showed bilateral carpal tunnel syndrome. Mr Stevanovski has been recommended by Dr Petchell to undergo surgery for the carpal tunnel conditions but approval was not forthcoming from the insurer.”
22.Under “Social Activities/ADL”, the Medical Assessor wrote:
“Mr Stevanovski lives with his wife and their two young sons. He
used to participate in many sports and he now is unable to continue with these
activities. Mr Stevanovski is restricted in performing his domestic duties such as
vacuuming and bed making. He shops for small all items only. Mr Stevanovski needs help to put on his clothes from the shoulder injuries.”

Under “Findings on physical examination” the Medical Assessor wrote:
“Cervical Spine
Examination of the cervical spine revealed normal alignment. There was tenderness on palpation the back of the neck with muscle guarding. Range of movement of the cervical spine was restricted to 1/2 normal with more restriction on rotation to the right. Neurological examination was normal with no sensory or motor deficits arising from the cervical spine impairment. The upper limb reflexes were normal and symmetrical.
Shoulders
The shoulders were positioned symmetrically. There was no unilateral atrophy
On palpation, there was tenderness at the front of both shoulders. The goniometric
measurements obtained for the right shoulder in this examination are tabled below. The left shoulder had a prior injury and was not suitable to act as a reference for the right shoulder.
Shoulder ROM (AMA5, F16-40 to 46)   Right     UEI%
Flexion   70          7
Extension   5          2.5
Adduction   10         1
Abduction   85        4.5
Int. Rotation   40         3
Ext. Rotation   0         2
SUM UEI   Right    20% UEI
Right hand carpal tunnel syndrome
The right thumb, index finger and middle finger had sensory impairment. They were graded according to AMA5 T16-10 and AMA5 T16-15
The right thumb has sensory impairment as Grade 2 at 60% on both sides of the thumb.
The maximum radial palmar digital is 7% UEI x 60% = 4% UEI and the maximum ulnar palmar digital is 11% UEI x 60% = 7% UEI. The total sensory loss for the thumb is 11% UEI.
The right index finger has sensory impairment as Grade 3 at 50% on both sides of the digit. The maximum radial palmar digital is 5% UEI x 50% = 3% UEI and the maximum ulnar palmar digital is 4% UEI x 50% = 2% UEI. The total sensory loss for the index finger is 5% UEI.
The right middle finger has sensory impairment as Grade 3 at 50% on both sides of the digit. The maximum radial palmar digital is 5% UEI x 50% = 3% UEI and the maximum ulnar palmar digital is 4% UEI x 50% = 2% UEI. The total sensory loss for the middle finger is 5% UEI.
The total sensory loss for the right carpal tunnel syndrome = Sum 11%, 5% and 5% =21% UEI.”
Under “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor wrote:
“On 22 April 2015, Mr Stevanovski fell down the stairs at work landing on his outstretched left arm and on his left shoulder; he also hit his head on the floor. He still has symptoms at his left shoulder and wrist. Mr Stevanovski has no other prior injury and no subsequent injury.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the Medical Assessor wrote:
“Marianco ‘Mario’ Stevanovski is a 50-year-old man who had an accident at work
sustaining a soft tissue injury to his cervical spine and right shoulder and right wrist. He had on conservative treatment only for his cervical spine and right upper extremity injuries.”
Under “Evaluation of permanent impairment”, at 8(b) the Medical Assessor wrote:
“Have all body parts/systems stabilized/reached maximum medical improvement? Yes.”
Under “Reasons for assessment” the Medical Assessor wrote:
“Mr Stevanovski had injury to his cervical spine and right upper extremity while at work. I have assessed the whole person impairment at 27%.
In making that assessment I have taken account of the following matters: -
The cervical spine was assessed as DRE II at 5% WPI based on muscle guarding at the paravertebral muscles and asymmetry of movement. Additional 2% WPI was rated for ADL restriction for performance of household tasks as described (SIRA 4 S4.35).
The right shoulder was rated at 20% UEI based on the goniometric measurements
obtained in this examination. The right hand had sensory loss at the thumb, index and middle fingers from carpal tunnel syndrome. The total sensory loss was 21% UEI. The total right upper extremity impairment = Combine 20 and 21% above = 37% UEI equivalent to 22% WPI.”
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“30/08/2016 Dr Stephen Quain stated that in his opinion, “adhesive capsulitis can be
precipitated by trauma even of a minor nature although its onset is often multifactorial. It is further my opinion that at least 50% of his ongoing problems are directly related to his diabetes.”
16/02/2021 Associate Professor Paul Miniter assessed the injury occurred on 17/09/2015. He reported some thenar wasting and positive Tinel sign and the power abductor pollicis brevis was slightly reduced on the left hand side. There were no abnormal findings of similar ilk on the right hand. Dr Miniter was of the opinion that none of this was work related.
20/08/2021 Dr James G Bodel assessed Cervical DRE Category II at 7% WPI inclusive of ADL restrictions. He rated the shoulder impairment at 8% WPI for each side. He did not rate the carpal tunnel syndrome and allowed no apportionment. Based on the findings of this examination, I agree with the cervical spine impairment rating of 7% WPI as reported by Dr Bodel. The right shoulder impairment has deteriorated since Dr Bodel’s examination in 2021. The right shoulder has 20% UEI based on the goniometric measurements obtained in this examination. I agree with Dr Bodel in allowing no apportionment for the right shoulder impairment. There was no pre-existing impairment in the right shoulder. The development of adhesive capsulitis is a consequence of the injury and it is not the cause of the injury at the right shoulder. The human body reacts to injury differently. Injury to the shoulders causes adhesive capsulitis both in people with or without diabetes even though in at different rates. Marianco Stevanovski had no pre-existing condition in the shoulders before the subject injury. I also examined the right wrist and provided an impairment rating for the carpal tunnel syndrome at the right wrist.”
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the Medical Assessor wrote:
“There is no deductible proportion.”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Assessment of impairment from carpal tunnel syndrome

The appellant submitted that the Medical Assessor made a demonstrable error in assessing impairment associated with right carpal tunnel syndrome as being either impairment due to an injury to the right carpal tunnel on 17 September 2015 or otherwise impairment as a result of a right shoulder injury on that date.
Mr Stevanovski made a whole person impairment claim based on the report of Dr Bodel dated 20 August 2021. In this report, Dr Bodel noted Mr Stevanovski had an injury to left shoulder on 22 April 2015 and an injury to right shoulder on 17 September 2015. Dr Bodel assessed 8% WPI for the right upper extremity and 7% WPI for the cervical spine. The assessment of the right upper shoulder related to the rateable restriction of shoulder movement only.
In the ARD under “injury description”, the following details were provided:
“The Worker was undertaking his general duties as a teacher. The Worker was training several students in Futsal when he was nudged by a student, causing the Worker to fall into a wire cyclone type fence. The Worker's fingers got caught in the fence causing the Worker's right shoulder to be jolted and strained suddenly. The Worker sustained a rotator cuff tear in his right shoulder, which consequently caused strain, pain and stiffness of the cervical spine.”
A claim for 15% WPI of right upper extremity and cervical spine was made in the ARD.
In a s 78 Notice dated 6 January 2020, the insurer declined to pay for right shoulder arthroscopic release, acromioplasty, distal clavicle excision, biceps tenodesis, left carpal tunnel release as this is not reasonably necessary medical treatment in relation to your injury as required by Section 60 of the Workers Compensation Act 1987. There was no reference to a right carpal tunnel release although the insurer wrote:
“In order to clarify, Catholic Church Insurance require you to attend an independent medical examination on 14 January 2021 to confirm the diagnosis and causation of your current right shoulder and carpal tunnel condition and if any, the percentage of apportionment in relation to your workplace injuries.”
In a s 78 Notice dated 24 May 2022, in relation to the right shoulder injury, the insurer disputed that Mr Stevanovski was at MMI in respect of psychological injury [sic], the degree of impairment and entitlement to compensation under s 66. This Notice contained no reference to carpal tunnel syndrome, which was not surprising, as the report from Dr Bodel did not include any assessment of impairment from the carpal tunnel syndrome.
In the Reply dated 20 February 2023 under “Matters in Dispute” the appellant wrote:
“The Respondent relies on its decisions dated 6 January 2020 and 24 May 2022, issued pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
Injury:
1. It is accepted that the Applicant has sustained an injury to the right shoulder on 17 September 2015. It is also accepted that the Applicant sustained a consequential condition to the cervical spine.
Lump sum compensation:
2. The Respondent submits that the Applicant has not crossed the threshold to claim lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act).
3. The Respondent otherwise disputes the level of impairment claimed.
4. The Respondent agrees to have the Applicant referred to a Medical Assessor for assessment of whole person impairment with respect to the right shoulder and cervical spine.”
In Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates). Leeming JA noted the following at [44]:
“The starting point is a “medical dispute”. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)…The term is defined by reference to the existence of a “dispute between a claimant and the person on whom a claim is made” about any of seven related subject matters including the degree of permanent impairment as a result of an injury…It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”
And at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a “medical dispute” because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
And at [49]:
“…it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment”.
It was clear from the Reply and from the report of Dr Bodel dated 20 August 2021 that there was a dispute between the parties concerning the degree of permanent impairment in the right shoulder and cervical spine as a result of the injury on 17 September 2015. At no time had Mr Stevanovski made a specific claim in respect of an injury to the right wrist and impairment the right wrist as a result of carpal tunnel syndrome. Indeed, the ARD described
Mr Stevanovski as sustaining a rotator cuff tear in his right shoulder, which consequently caused strain, pain and stiffness of the cervical spine.
The Appeal Panel agreed with the appellant that the Medical Assessor made a demonstrable error in assessing impairment that was unrelated to the injury referred to him. Further, it was unfair for the Medical Assessor to treat the carpal tunnel syndrome in the right wrist as resulting from the incident on 17 September 2015 without putting this issue to the parties. This resulted in a lack of procedural fairness as neither party considered the issue and arguments or had a chance to address them.
Johnson J in Vitaz v Westform (NSW) Pty Limited and Ors [20010] NSWSC 667 considered whether the requirement for procedural fairness must be observed by an approved medical specialist conducting an assessment of permanent impairment under the 1998 Act. Johnson J was satisfied that an approved medical specialist performing an assessment of permanent impairment is, at least as a starting point, under some obligation of procedural fairness.
The Appeal Panel concluded that the assessment of the right upper extremity should be limited to an assessment of the right shoulder. Therefore, the assessment by the Medical Assessor of the sensory loss for the right carpal tunnel syndrome is to be deducted from the assessment made in respect of the right upper extremity. This results in an assessment of 20% upper extremity impairment for the right shoulder which equals 12% WPI.

Maximum medical improvement

The appellant submitted that the Medical Assessor made a demonstrable error as he provided no reasons for accepting that Mr Stevanokski had reached MMI despite this issue being raised by the appellant and an apparent deterioration in his condition noted by the Medical Assessor.
The Medical Assessor did note that Mr Stevanovski’s right shoulder impairment had deteriorated since the examination by Dr Bodel in 2021.
In his report dated 20 August 2021, Dr Bodel wrote:
"I will give a tentative assessment based on the clinical findings here today but it is
most unlikely that this will be the final level of Whole Person Impairment for any of the injured areas. The reason for that is that once he undergoes the surgery on the right side, which he is keen to do, it is likely that this will affect the levels of assessment in the neck and the left shoulder while he is recovering.
The final level of Whole Person Impairment should be deferred until 12 months after
he has completed all of his surgical interventions."
In the s 78 Notice dated 24 May 2022, the appellant wrote:
“Taking into account the above, we dispute that you have reached MMI, and also dispute that you are entitled to compensation under Section 66 WCA 1987. We also therefore dispute the degree of permanent impairment assessed by Dr Bodel, on the grounds that the impairment assessed is not an accurate reflection of your degree of permanent impairment noting that he is providing a tentative assessment and does not deducted the major causal factors of your condition”.
Dr Bodel’s “tentative assessment” was based on the doctor’s assumption that
Mr Stevanovski would undergo surgery to the right shoulder. The insurer denied liability for the proposed surgery to the right shoulder and no surgery has taken place. In those circumstances, it seems inappropriate to rely on Dr Bodel’s views as supporting the arguments that Mr Stevanovski was not at MMI.
The Appeal Panel reviewed the findings of the Medical Assessor and considered that it was open to the Medical Assessor to find that Mr Stevanovksi was at MMI. This was a matter of clinical judgment made on the day of examination. Further, the Appeal Panel did not accept that the Medical Assessor was obliged to provide detailed reason for that part of his assessment especially considering that the injury occurred in 2015 and Mr Stevanovski had not undergone any surgery to the right shoulder. The Appeal Panel was satisfied that in relation the finding that Mr Stevanovski was at MMI there had been no demonstrable error and the assessment was not made on the basis of incorrect criteria.

Assessment of the right shoulder

The appellant submitted there have been demonstrable errors or the application of incorrect criteria in relation to the Medical Assessor’s assessment of the right shoulder. Firstly, the appellant referred to a failure to measure the loss of motion in the left shoulder and a failure to set out the basis for the conclusion that it was inappropriate to compare ranges of motion.
In relation to the failure to measure the loss of motion in the left shoulder and set out the basis for his conclusion that it was inappropriate to compare ranges of motion in both shoulders, the Appeal Panel noted that Mr Stevanovski sustained an injury to the left shoulder on 22 April 2015. In his report of 20 August 2021, Dr Bodel made an assessment of 8% WPI of the left shoulder as a result of the injury on 22 April 2015.
The Medical Assessor wrote:
“On 22 April 2015, Mr Stevanovski fell down the stairs at work landing on his outstretched left arm and on his left shoulder; he also hit his head on the floor. He still has symptoms at his left shoulder and wrist.”
The Medical Assessor examined both shoulders and wrote: “The left shoulder had a prior injury and was not suitable to act as a reference for the right shoulder”.
The Guidelines at 2.20 provide:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral “normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
A Medical Assessor can only use the contralateral joint as a baseline if that joint is normal/uninjured. In this case, the contralateral joint, the left shoulder, had been injured and the Medical Assessor could not use it as a baseline. The Appeal panel considered that the reasons given by the Medical Assessor were certainly adequate.
Secondly, the appellant argued that the Medical Assessor also had not made or considered the diagnosis relevant to the left shoulder, nor whether any loss of range of motion in the left shoulder was as a result of the earlier injury (rather than, say, adhesive capsulitis of constitutional origin). The Appeal Panel did not consider that the Medical Assessor was required to make or consider a diagnosis relevant to the left shoulder, or whether any loss of range of motion in the left shoulder as a result of the earlier injury when the referral to the Medical Assessor was for the assessment of the right shoulder and not for the left shoulder. Once the Medical Assessor was satisfied that the left shoulder had been injured and could not be used as a baseline in the assessment of range of movement in the right shoulder, there was no need for the Medical Assessor to consider anything further in relation to the left shoulder.
The appellant submitted that the Medical Assessor assessed Mr Stevanovski on the basis that his adhesive capsulitis affecting the right shoulder was wholly as a result of the injury in 2015 and bore no relationship to his condition of insulin dependent diabetes.
The Medical Assessor wrote:
“I agree with Dr Bodel in allowing no apportionment for the right shoulder impairment. There was no pre-existing impairment in the right shoulder. The development of adhesive capsulitis is a consequence of the injury and it is not the cause of the injury at the right shoulder. The human body reacts to injury differently. Injury to the shoulders causes adhesive capsulitis both in people with or without diabetes even though in at different rates. Marianco Stevanovski had no pre-existing condition in the shoulders before the subject injury.”
Dr Bodel, in his assessment of impairment, did not deduct the pre-existing condition that he mentioned in his report. He stated in his report:
"This gentleman's general medical history is noted and it is important that it be
recognised that this gentleman has type 1 diabetes which is well controlled with
insulin. The medical literature clearly confirms that a person with type 1 diabetes does have an increased risk of developing adhesive capsulitis, even without injury."

Dr Stephen Quain, in a report dated 30 August 2016, noted that Mr Stevanovski had evidence of bilateral moderately severe adhesive capsulitis which appeared to have been precipitated by minor traumatic episodes with a fall on one case and jarring his right shoulder in the second incident. Dr Quain commented that Mr Stevanovski was predisposed to this condition by his long term insulin dependent diabetes. Dr Quain wrote:
“You will see that this is not absolute but in my opinion whilst he is diabetic, work
has been the precipitating factor and it is therefore in my opinion the main
contributing factor to the causation of his capsulitis.
In my opinion the incident of 17 September 2015 would be considered the main
contributing factor in relation to the right shoulder…”
Associate Professor Paul Miniter, in a report dated 16 February 2021, considered that the right shoulder condition was not work related. He wrote:
“…it has also been clearly shown that adhesive capsulitis in diabetics often follows a very minor incident which makes the patient aware of the lack of movement and pain in their shoulder. This is the likely explanation for his symptoms
…
This gentleman has Type I diabetes. It is likely that he has had adhesive capsulitis in the past. It appears not to be evident on MRI evaluation of the right shoulder recently and thus I doubt that it is still a major issue for him.”
In a report dated 21 April 2021, Dr Zelko Oreb, general practitioner, noted that Associate Professor Miniter had stated that Mr Stevanovski’s shoulder problems related to adhesive capsulitis and not related to trauma. Dr Oreb wrote:
“There is a history of trauma in 2015 which is not minor as described by Prof. Miniter rather these incidences caused a rotator cuff tear of the left shoulder and an ongoing SLAP tear in his right shoulder.
I disagree with Prof. Miniter's view that Mr Stevanovski's bilateral shoulder problems are diabetes related and not work related.”
After reviewing the evidence in this matter, the Appeal Panel concluded that it was open to the Medical Assessor to assess Mr Stevanovski on the basis that his adhesive capsulitis affecting the right shoulder was wholly as a result of the injury in 2015 and had no relationship to his condition of insulin dependent diabetes.
The Appeal Panel was satisfied that in respect of the assessment of the right shoulder, there was no demonstrable error and the assessment was not made on the basis of incorrect criteria.

Assessment of the cervical spine and ADLs

The appellant submitted that Medical Assessor provided no diagnosis, did not refer to any imaging of the cervical spine and did not identify any pathology in the cervical spine. The appellant submitted that at a minimum, there was a demonstrable error as the Medical Assessor failed to provide reasons in this regard.
The Medical Assessor reported that examination of the cervical spine revealed normal alignment. He noted that there was tenderness on palpation on the back of the neck with muscle guarding, the range of movement of the cervical spine was restricted to 1/2 normal with more restriction on rotation to the right. The Medical Assessor reported that neurological examination was normal with no sensory or motor deficits arising from the cervical spine impairment, and the upper limb reflexes were normal and symmetrical.
The Medical Assessor assessed the cervical spine as DRE II at 5% WPI based on muscle guarding at the paravertebral muscles and asymmetry of movement. An additional 2% WPI was rated for ADL restriction for performance of household tasks as described.
The Appeal Panel noted that Part 4.18 of the Guidelines provides that DRE II is a clinical diagnosis based upon features of the history of the injury and clinical features. In any event, the Medical Assessor made a diagnosis of a soft tissue injury. The Appeal Panel agreed that there appeared to be no investigations of the cervical spine. However, the findings on examination included muscle guarding, tenderness on palpation and an asymmetrical range of movement. All these findings were a basis for the assessment of DRE II and the Appeal Panel agreed with that assessment in view of those clinical findings. The Appeal Panel considered that it was open to Medical Assessor to assess the cervical spine as DRE II. The Appeal Panel was also satisfied that the Medical Assessor provided adequate reasons.
The appellant submitted that in the absence of any diagnosis or recognisable pathology, the Medical Assessor erred in attributing a loss of movement that was (without providing measurements) said to be more pronounced on the right hand side to an injury to the cervical spine rather than the restriction in movement being associated with the bilateral shoulder injuries.
The Appeal Panel considered that this was a matter of clinical judgment for the Medical Assessor following examination of Mr Stevanovski.
The appellant submitted that Mr Stevanovski’s difficulties in relation to the performance of household tasks was associated with his bilateral shoulder conditions and to the extent that the Medical Assessor believed there was a contribution to restrictions in Mr Stevanovski’s ADLs as a result of the cervical spine, he demonstrably erred in failing to provide his reasoning.
The Medical Assessor wrote:
“Mr Stevanovski lives with his wife and their two young sons. He used to participate in many sports and he now is unable to continue with these activities. Mr Stevanovski is restricted in performing his domestic duties such as vacuuming and bedmaking. He shops for small items only. Mr Stevanovski needs help to put on his clothes from the shoulder injuries.”
In a statement dated 6 November 2022, Mr Stevanovski wrote:
“Since my injury, I experience constant pain and stiffness in my neck as well as both my left and right shoulder, which travels down my arm. I also experience a tingling sensation in my fingers, and my movement is heavily restricted.
43. I am unable to perform the usual home duties that I undertook prior to sustaining my injuries, including gardening, lawnmowing, vacuuming, washing windows, washing the clothes, dusting, cleaning the kitchen cupboards and washing the cars.
44. I cannot carry out repairs and maintenance to my home such as painting, like I used to before my injury.
45. I also struggle to conduct day-to-day personal tasks such as putting my belt on or wiping my back side.
…
51. Before my injuries, I was very active and used to socially play and coach soccer, futsal and volleyball, which are hobbies I can longer partake in.”
Dr Bodel, in his report dated 20 August 2021, made an assessment of 2% for ADLs, noting Mr Stevanovski struggled with household maintenance and cleaning activities.
The Appeal Panel considered that it was open to the Medical Assessor to make an assessment of 2% for ADLs. The Medical Assessor noted on examination that there was tenderness on
palpation the back of the neck with muscle guarding and range of movement of the cervical
spine was restricted to 1/2 normal with more restriction on rotation to the right. The Medical Assessor wrote: “The cervical spine was assessed as DRE II at 5% WPI based on muscle guarding at the paravertebral muscles and asymmetry of movement”.
The Appeal Panel considered that it was open to the Medical Assessor to make an assessment of 2% for ADLs. Muscle guarding at the paravertebral muscles would impact
Mr Stevanovski’s ability to do many activities. The fact that the right shoulder injury also created limitations did not disentitle him from additional impairment when the injury to the cervical spine had caused restrictions with usual household tasks and was unable to get back to previous sporting or recreational activities.
The Appeal Panel was satisfied that in respect of the assessment of the cervical spine including ADL, there was no demonstrable error and the assessment was not made on the basis of incorrect criteria.
In summary, the Appeal Panel assessed Mr Stavanovski as having 12% WPI of the right upper extremity (shoulder) and 7% WPI of the cervical spine. Therefore, 12% for the right shoulder was combined with 7% for the cervical spine which resulted in a total of 18% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 April 2023 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:	W461/23
Applicant:	Marianco ‘Mario’ Stevanovski
Respondent:	St Charbel’s College

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 Cyril Wong 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 WorkCover Guides	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	17/9/2015	Chapter 4 P24-30	Chapter 15 Table 15-5	7	Nil	7
2. Right upper extremity	17/9/2015	Chapter 2 P10-12	Chapter 16 P433-521	12	Nil	12
Total % WPI (the Combined Table values of all sub-totals)					18% WPI

[2023] NSWPICMP 349

24 July 2023