Stack v State of New South Wales (Central Coast Health District - Woy Woy Hospital)
[2025] NSWPICMP 120
•25 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Stack v State of New South Wales (Central Coast Health District - Woy Woy Hospital) [2025] NSWPICMP 120 |
| APPELLANT: | David Garry Stack |
| RESPONDENT: | State of New South Wales (Central Coast Health District - Woy Woy Hospital) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 25 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; matter referred to Medical Assessor (MA) without findings by Commission; previous injury disclosed but not described in file; worker argued MA failed to apply disease provisions and in application of section 323; inadequate evidence to allow determination about previous relevant employment; application of section 323; Vitaz v Westform (New South Wales) Pty Ltd; Ryder v Sundance Bakehouse; barely adequate reasons but no demonstrable error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 December 2024 David Stack lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 6 November 2024.
Mr Stack relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The President’s delegate was satisfied, on the face of the application, that the ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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
Mr Stack suffered an injury to his left shoulder in the course of his employment as a Patient Support Assistant by the State of New South Wales in the Central Coast Health District (the Health District) at Woy Woy Rehabilitation Hospital. He claimed compensation in respect of a disease injury to his left shoulder deemed to have been suffered on 2 November 2021. Dr Bateman undertook a reverse shoulder arthroplasty on 27 June 2022. His recovery was delayed by the development of an infection, requiring further surgery.
Between leaving school at the age of 15 or 16 and commencing his employment with the Health District, Mr Stack worked in the motor vehicle industry. He was employed by Alto Ford BMW when he suffered an injury to his left shoulder and arm in 2001. Dr Bokor operated on his left shoulder on13 November 2001 and Mr Stack returned to work. Mr Stack began to experience increasing symptoms and was referred back to Dr Bokor who performed a rotator cuff repair on 13 November 2012. He sought alternative work to avoid re-injuring his left shoulder and taught for the Motor Trades Association for two years until the employment was no longer available. He then commenced work for the Health District on a casual basis and his employment was subsequently made permanent.
Mr Stack claimed permanent impairment compensation in 2024. His claim was based on an assessment by Prof Ghabrial who assessed 25% whole person impairment (WPI) and deducted one-tenth under s 323 of the 1998 Act in respect of the previous injury and surgery. The Health District retained Dr Bosanquet who also assessed 25% WPI but deducted one half under s 323 for “previous degenerative changes.”
The Health District made an offer to settle based on Dr Bosanquet’s opinion. Mr Stack commenced proceedings and the claim was referred to a Medical Assessor without any determination being made by the Personal Injury Commission (Commission).
The Medical Assessor assessed 22% WPI in respect of Mr Stack’s left upper extremity (shoulder) and added 2% under the Table for the Evaluation of Minor Skin Impairment (TEMSKI). He deducted one half under s 323 because the two previous surgeries made it inevitable that his rotator cuff would fail and he would require shoulder arthroplasty.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Stack to undergo a further medical examination because the MAC does not disclose error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The MAC is very brief. The Medical Assessor obtained a history that:
“Mr Stack was working as a Patient Support Assistant at the Woy Woy Rehabilitation Hospital. During the COVID pandemic during staff restrictions there were less staff to support him with manual handling of patients who were often significantly overweight. He noted over time that he was developing pain in his left shoulder.
After initially trying to deal with it with a self-supervised exercise program, he presented to his General Practitioner who sent him off for imaging that demonstrated a failed rotator cuff. Mr Stack was subsequently referred to Dr Bateman, Orthopaedic Surgeon, who recommended proceeding with a reverse shoulder replacement. This was undertaken on 27/06/2022. Unfortunately, he went on to develop an infection in the joint replacement and was re-admitted to hospital for a washout on 16/08/2022. He subsequently spent 6 weeks on intravenous antibiotics and underwent a further procedure to remove a suture from his shoulder.”
The Medical Assessor provided a brief summary of the treatment, described as a reverse shoulder replacement. He said:
“Mr Stack previously had injury to his left shoulder working in alternate employment. He underwent arthroscopic cuff repair on 13/11/2011 with had further arthroscopic surgery in November of 2012.”
We note that the date of the first surgery is inconsistent with the evidence in the file which suggests that it occurred on 13 November 2001.
The Medical Assessor said that “Mr Stack has sustained previous injuries to his left shoulder working in the motor industry”. With respect to social activities and activities of daily living, the Medical Assessor said only that Mr Stack previously enjoyed working on cars but now has difficulty.
The Medical Assessor described Mr Stack’s scars and set out the range of motion of both shoulders. He said that he did not see any imaging. He noted that Mr Stack had previously undergone two surgical procedures for rotator cuff pathology.
The Medical Assessor set out his assessment of 22% WPI for Mr Stack’s left shoulder and 2% under the TEMSKI. He explained the parts of AMA 5 to which he had regard. He said:
“With respect to the report by Dr Ghabrial dated 21/08/2023, I assessed a slightly greater range of motion in the left shoulder and assessed a slightly lesser impairment for it. I have assessed 2% rather than 1% impairment for Scarring/TEMSKI.
With respect to the report by Dr Bosanquet dated 11/03/2024, again I have assessed a slightly greater range of motion and have assessed lesser impairment on that basis. I note Dr Bosanquet has made a 50% deduction for pre-existing pathology whereas Dr Ghabrial has only made a 10% deduction.”
With respect to s 323 the Medical Assessor said:
“Mr Stack has had 2 previous surgical procedures on his left shoulder. It was inevitable that his rotator cuff would fail and the ultimate outcome in the absence of further injury was going to be a shoulder arthroplasty.”
And:
“As above, failure of the left rotator cuff represents progression of pathology for which Mr Stack had had 2 previous surgical procedures. A failure of the rotator cuff represents progression of the pre-existing disease. In the absence of the preexisting pathology, it is unlikely Mr Stack would have required a reverse shoulder arthroplasty.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by Mr McManamey of counsel, Mr Stack submitted that the Health District did not contest the assertion that the injury was a disease. He said that the Medical Assessor made four errors:
(a) he failed to consider and apply s 15 and s68B of the Workers Compensation Act 1987 (the 1987 Act);
(b) he made a deduction where the pre-existing condition did not contribute to the current impairment because the shoulder arthroplasty had eliminated the previous impairment (referring to State of New South Wales (Central Coast Local Health District) v Page) (Page);[1]
(c) he failed to relate the previous impairment to the injury being assessed and that he was in error to apply the s 323 deduction to the assessment of the range of motion, and
(d) he failed to give proper reasons.
[1] [2023] NSWSC 935.
Mr Stack said that there should be no s 323 deduction or, in the alternative, it should be no more than one-tenth.
In reply, and in submissions prepared by its solicitor Ms Gair, the Health District said that it was an overstatement to assume that the claim was one under s 15 of the 1987 Act and that the pleadings and evidence also allowed a conclusion that the injury was the deterioration of a disease within s 16 of the 1987 Act. It said there is insufficient evidence to apply s 68B of the 1987 Act.
The Health District submitted that the Appeal Panel should call for a previous file concerning Mr Stack and seek submissions from the parties. It submitted that the Medical Assessor’s deduction was appropriate, observing that both independent medical examiners had made a deduction. It said that it was inappropriate to apply s 323 to only part of the assessment and that the Medical Assessor gave adequate reasons for his assessment where there was no alternative conclusion shown on the evidence to be necessarily available.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].
The forensic decisions made by the parties are relevant to the outcome of the appeal. Mr Stack claimed compensation for a disease injury. There is nothing in the file to indicate that the parties corresponded about whether the injury was a disease contracted by a gradual process, within the meaning of s 15 of the 1987 Act, or the aggravation, acceleration, exacerbation or deterioration of a disease as described in s 16. They did not ask the Commission to determine the question and it does not appear from the file that any issue was raised about the form of the referral to the Medical Assessor.
Mr Stack’s statement is relatively brief. He did not describe the work he performed for Alto Ford BMW (other than to say it was repetitive) or the Motor Trades Association (other than that it was teaching). We presume that the work with the Motor Trades Association was lighter work because Mr Stack said that he sought work in an effort to avoid re-injuring his left shoulder with the encouragement of the insurer of Alto Ford BMW and the rehabilitation provider who was assisting him to return to work after his second operation. He said that he did that work for “about 2 years”.
The referral from Mr Stack’s general practitioner Dr Schulze to Dr Bateman lists an extensive medical history including “left rotator cuff syndrome and surgery” by Dr Bokor in 2001 and “left acromioplasty, arthroscopic rotator cuff repair” in 2012.
There is no medical evidence in respect of the previous injury and surgery in the Application to Resolve a Dispute (ARD). That omission is significant when Mr Stack has undergone significant surgery. The omission made both the Medical Assessor’s task and ours as an appeal pane more difficult.
Though the Health District complained about the lack of evidence about the previous surgery, there is no indication that the Health District or its insurer sought to obtain any. The ARD refers to proceedings brought in the former Workers Compensation Commission in 2014. The Health District did not take steps to seek access to that file. Prof Ghabrial said in his report dated 21 August 2023 which provided the basis for the claim that he had seen Mr Stack for an assessment for the 2001 injury in 2013. There is no indication in the file that the Health District sought to obtain Prof Ghabrial’s earlier report when the claim was made. It did not request that the matter be listed before a Member of the Commission to seek leave to issue directions before the referral to the Medical Assessor was made. The submission that we should now call for the previous file and invite further submissions is inappropriate when the Health District had the opportunity to make that request before the referral to the Medical Assessor.
Application of s 15
Mr Stack’s submissions assume that s 15 of the 1987 Act applied but said that the application of s 16 would have the same effect. His first ground of appeal is that the Medical Assessor did not properly apply the disease provisions and that s 15 operates to deem that the injury occurred when the claim was made so that there should not be a s 323 deduction. He also sought to rely on s 68B of the 1987 Act which provides in part:
“(2) When determining the compensation payable by an employer in a case in which section 15 applies (disease of such a nature as to be contracted by a gradual process), section 323 of the 1998 Act applies to that compensation subject to the following—
(a)there is to be no deduction under section 323 of the 1998 Act for any proportion of the permanent impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b)for the purposes of paragraph (a), previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 15 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),
…”
Mr Stack argued that his employment with Alto BWM required repetitive use of his arms and was employment to the nature of which the shoulder condition was due. The evidence about his previous employment was limited to his statement that it required repetitive use of his arms. The employment is not otherwise described nor is the work with the Motor Trades Association.
The Medical Assessor did not turn his mind to this issue, nor was he directed to by the evidence. He noted that Mr Stack had previous injuries working in the motor industry.
Prof Ghabrial, retained by Mr Stack’s solicitors, omits any reference to the surgery in 2012. He said:
“Mr. Stack gave me the history of an injury to his left shoulder on the 2nd November 2021. As a result of that injury he developed re-rupture of the rotator cuff.
I understood that he had an injury to the left shoulder (the same shoulder) on the
9th May 2001. He sustained rupture of the rotator cuff which has been repaired in 2001 by Professor Des Bokor with a satisfactory outcome. I saw him as a result of that injury for an assessment in 2013.I understood that he returned to the work force in 2015 working at the Rehabilitation Hospital at Woy Woy.”
Dr Bosanquet, who saw Mr Stack at the request of the Health District, had a little more information and recorded that Mr Stack had been teaching in a previous position and that he had been a mechanic for most of his life.
The implication from the reference to repetitive use suggests that the previous condition might have been a disease injury but there is insufficient evidence to draw any conclusion about it and as to whether or not that there was a frank incident which led to either surgery.
The absence of evidence about the nature of Mr Stack’s duties does not allow a determination of whether the previous employment was employment to the nature of which the disease was due or was previous relevant employment for the purpose of s 68B(2)(b). In those circumstances we do not accept the submission that the only correct question for the Medical Assessor was whether any part of the impairment resulted from a previous injury, pre-existing condition or abnormality which predated Mr Stack’s employment with Alto Ford BMW. Because of the way the evidence was presented, the Medical Assessor was correct to consider the impact of Mr Stack’s work before he commenced work for the Health District as a pre-existing injury.
Whether the previous condition contributed to the current impairment
Mr Stack argued that once the previous rotator cuff tear had been repaired there was no longer a tear and that it gave rise to a mere vulnerability to injury which does not provide a basis for a deduction under s 323, referring to Matthew Hall Pty Ltd v Smart.[4]
[4] [2000] NSWCA 284, (2000) 21 NSWCCR 34.
The submission is inconsistent with the evidence on which Mr Stack relied because Dr Ghabrial made a deduction of one-tenth under s 323 for the “pre-existing injuries although that has settled down almost fully.” It is inconsistent with the evidence that appears in the file.
While Mr Stack had a good recovery from the previous surgery, he was unable to return to his pre-injury position with Alto Ford BMW and the rehabilitation provider assisted him to find other work, teaching.
As we have observed, there is no medical evidence which pre-dates the injury. The report of the MRI scan taken on 11 February 2022 does not appear in the file and it was not shown to the Medical Assessor. Neither Prof Ghabrial nor Dr Bosanquet saw it.
The report of an X-ray and ultrasound taken on 19 January 2022 was reported as showing:
“X-ray:
Anchors from previous surgery are noted in the humeral head. There is widening of the acromioclavicular joint, presumably from previous injury. There is a coarse calcification in the region of the supraspinatus tendon, and there are glenohumeral joint degenerative changes with an exostosis arising from the proximal head shaft.
Ultrasound:
The long head of biceps tendon is intact and lies in the bicipital groove. Very thin tendon, difficult to visualise.
There is a large, full thickness tear involving the supraspinatus and infraspinatus tendons. The tear measures 28 mm AP. Diffuse atrophy of the supraspinatus muscle noted. There is tendinopathy of the subscapularis tendon and infraspinatus tendons. There is moderate thickening and an effusion of the subacromial – subdeltoid bursa without evidence of bursal impingement on abduction. Fluid and debris noted at the region of supra.
There is a model effusion of the glenohumeral joint.
There are degenerative changes of the AC. joint.
Mildly restricted shoulder abduction. No restriction on external rotation.
COMMENT:
1. Full thickness, tear of the supraspinatus and infraspinatus tendons.
2. Sub scapularis tendinopathy without evidence of a tear.
3. Moderate thickening of the subacromial–subdeltoid bursa without evidence of bursal impingement.
4. Moderate joint effusion.”
The ultrasound confirms the presence of changes consequent on the previous surgery. Dr Bateman said in his report dated 14 February 2022:
“I have reviewed the MRI scan of 66 year old David's left shoulder performed at PRP Imaging on the 11/2/2022. It reveals, as suspected, there has been an acute re-tear of the previous successful rotator cuff repair performed by Dr Bokor some years ago. The indication that the tear is fresh is that there is still reasonable muscle quality left in the supraspinatus and infraspinatus. Most likely it has been dysfunctional and the workplace event, unfortunately has allowed it to re-tear.
He is now in a fairly difficult position in that if he had a primary rotator cuff in the setting of a workplace event we could do a repair, however the complicating factor is that he had previous successful surgery with a new tear which renders the tear not fixable.”
Dr Bateman provided a response to a series of questions from the Health District’s insurer on 14 March 2022. He said:
“I do believe that his employment incident on the 02/11/2021 is the substantial contributing factor to the current diagnosis. I certainly accept that he has had previous rotator cuff surgery and that the findings on the MRI scan show a re-tear with chronic changes in the shoulder. The issue, however is that prior to the event on the 02/11/2021 he was asymptomatic and functioning extremely well in his role as a PSA.”
In Vitaz v Westform (NSW) Pty Ltd[5] Basten JA, with whom the other members of the Court agreed, rejected a construction that if a worker did not suffer symptoms from a pre-existing condition and there was no rateable impairment before an injury, there would be no deduction under s 323. His Honour said:
“That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart[2000] NSWCA 284; 21 NSWCCR 34 at [30]- [32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd[2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
[5] [2011] NSWCA 254 at [43].
In Ryder v Sundance Bakehouse Campbell J said:[6]
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[6] [2015] NSWSC 526 at [45].
As Dr Bateman’s reports show, the previous injury and surgery necessitated that treatment for a fresh tear was a reverse shoulder replacement. The new tear was not capable of repair because of the impact of the previous surgery. The impact of the previous surgery cannot be described as a mere vulnerability because the condition of Mr Stack’s shoulder was such that a repair was not possible when a further injury occurred. A reverse shoulder replacement was required, resulting in a greater degree of permanent impairment.
In Page, Lonergan J held that it was open to the appeal panel in the exercise of medical judgement to determine that a deduction under s 323 for pre-existing arthritis was not appropriate when surgery had removed all arthritic tissue. The injury was an aggravation of arthritic changes in the worker’s wrists as a result of repetitive work.
This case is different. Mr Stack suffered a fresh tear in his rotator cuff in November 2021 on the background of two previous operations for a separate injury. Dr Bateman said that if the previous surgery had not been undertaken, repair would have been considered. We are satisfied that but for the previous surgery, the impairment following the injury at Woy Woy Hospital would not have been as great.
Application to the impairment being assessed
Mr Stack’s third argument is that the Medical Assessor should not have applied any s 323 deduction to the part of the assessment that results from the loss of the range of motion. No authority is cited to support the argument.
Mr Stack sought to reply on the range of movement observed by his physiotherapist on 4 February 2022, without referring to the date. He said that, because the range of motion after the surgery was greater, the Medical Assessor’s reasoning for the s 323 deduction cannot be applied to it.
We do not accept that argument. First, another report from Mr Stack’s physiotherapist dated 17 March 2022, also before the surgery, reveals a different set of observations for the range of motion of his left shoulder to that cited in submissions. While still more restricted than those observed by the Medical Assessor, they show that the range was seen to be different on different days. The reference to the observations on one day is not a valid measure.
Second, the Medical Assessor was required to make his own observations on the day of the examination[7] and to assess Mr Stack as required by the Guidelines, using AMA 5. There is no ground of appeal with respect to the Medical Assessor’s application of AMA 5. The Medical Assessor was required to assess all of the relevant components and combine then before reaching a total assessment in respect of the upper extremity impairment (UEI).
[7] Guidelines paragraph 1.6.
Section 16.7b of AMA 5 deals with arthroplasty. It provides that “[i]n the presence of decreased motion, motion impairments are derived separately (section 16.4), and combined with the arthroplasty impairment (Combined Values Chart, p 604).” Table 16-27 is used to measure the “Impairment of the Upper Extremity After Arthroplasty of Specific Bones or Joints.” Total shoulder implant arthroplasty results in 24% UEI[TR1] .
Section 16.4 of AMA 5 describes the assessment of the range of motion of upper extremity joints. Again, there is no appeal with respect to the measurements the Medical Assessor obtained on the day of his assessment. Section 16.4a says that “the principles of the range of motion (ROM) are measured on the basis of the neutral position of a joint being zero.” The section contains three tables for the six planes of motion of the shoulder. The Medical Assessor measured the range of motion in accordance with those tables and reached
Once he combined those two components of 24% UEI for the arthroplasty and 17% UEI for the range of motion, the Medical Assessor reached the assessment of 37% UEI for Mr Stack’s shoulder which he converted to WPI. That assessment is the “degree of permanent impairment resulting from an injury”.
We note there is a typographical error in the Medical Assessor’s calculations in that he referred to 25% UEI and 17% in the second sentence of paragraph 10.b of the MAC. His calculation of 22% WPI after combining 24% UEI and 17%UEI is correct
Third, any s 323 deduction is applied in “assessing the degree of permanent impairment resulting from an injury.” Section 323 applies to the relevant injury (in this case Mr Stack’s shoulder) and not to the component of the assessment.
Failure to give reasons
Mr Stack said that the Medical Assessor failed to give reasons for the deduction of one-half and that either no deduction or a deduction of one-tenth was appropriate.
The MAC does contain the Medical Assessor’s reasons for his assessment though it is exceptionally brief. It would have been better for the Medical Assessor to provide more detail in all aspects of the MAC because that would allow any reader to more easily understand the assessment. The fact that the detail in the MAC is barely adequate does not mean that it contains a demonstrable error.
The Medical Assessor gave concise reasons for the deduction of one half of the assessment. Essentially, he said that it was inevitable that Mr Stack’s rotator cuff would fail after two previous operations and that arthroplasty was inevitable. While we do not agree that failure of the original repair was inevitable as the Medical Assessor said, it is not surprising that it did.
The deduction of one-tenth in s 323(2) is only appropriate if the extent of the deduction would be difficult or costly to determine. Dr Bateman’s reports provide a sufficient basis to assess the deduction. He explained why the arthroplasty was necessary in his report dated 14 February 2022. While the two previous surgeries were successful, the resulting condition of Mr Stack’s shoulder dictated that a further tear could only be treated by arthroplasty. In those circumstances, it was open to the Medical Assessor in the exercise of his clinical judgement to make a deduction of one-half.
For these reasons, we have determined that the MAC issued on 6 November 2024 should be confirmed.
[TR1]As abbreviated in [56]
3
7
0