State of New South Wales (Northern NSW Local Health District) v Procter

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (Northern NSW Local Health District) v Procter [2023] NSWPICMP 700
APPELLANT:	State of New Soputh Wales (Northern NSW Local Health District)
RESPONDENT:	Deborah Procter
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	22 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor (MA) assessed 15% whole person impairment of the left Upper Extremity (shoulder) and 17% of the thoracic spine following an injury on 22 February 2017; Panel determined that the MA erred in assessing the thoracic spine as DRE III because the findings on examination did not satisfy the criteria in Table 15-4 of AMA5 for category III; MA failed to provide adequate reasons for the assessment of the shoulder; worker re-examined by Panel member; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 September 2023 the State of New South Wales (Northern NSW Local Health District) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 August 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 (Ms Procter) sustained an injury to her left upper extremity (shoulder) and thoracic spine in the course of her employment with the appellant on 22 February 2017.
Ms Procter lodged an Application to Resolve a Dispute (ARD) in the Commission on
12 August 2022 in which she claimed 25% whole person impairment of the thoracic spine and left upper extremity as a result of injuries sustained on 22 February 2017 in her employment with the appellant.
The matter was referred to the Medical Assessor, Dr Tim Anderson, on 19 May 2023 for assessment of whole person impairment (WPI) of the thoracic spine and left upper extremity (shoulder) with the date of injury being 22 February 2017.
The Medical Assessor examined Ms Procter on 18 July 2023 and assessed 15% WPI of the the left upper extremity (shoulder) and 17% WPI of the thoracic spine. The combined total was 29% WPI as a result of the injury on 22 February 2017.

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 Ms Procter 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 necessary for Ms Procter to undergo a further medical examination because there was insufficient 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.

Further medical examination

Medical Assessor Gregory McGroder of the Appeal Panel conducted an examination of the worker on 4 December 2023 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a)   Ground 1 – the Medical Assessor erred in assessing Ms Procter under Diagnosis-Related Estimates (DRE) Thoracic Category III as having 17% WPI. At no stage in his report did the Medical Assessor identify any neurological impairment of any lower extremity. It followed that Ms Procter did not fall within the first option of category III.
(b)   At no stage in the MAC, did the Medical Assessor make a finding of clinically significant radiculopathy. He did not use this term in his report or refer to any radiological imaging to support a finding of clinically significant pathology. He did not refer to Ms Procter as having sustained a fracture to any vertebral body or posterior element in the thoracic spine.
(c)   The Medical Assessor therefore made a demonstrable error and applied incorrect criteria in assessing this aspect of Ms Procter’s permanent impairment.
(d)   Although Dr Poplawski, in his report of 30 November 2022 considered that she met the criteria of DRE Thoracic Category III as she had “clinically significant radiculopathy verified by imaging study [being the MRI scan dated 21 April 2017] which demonstrated a herniated disc at the level and on the side which would be expected from objective clinical findings”, he did not review the MRI scan of the thoracic spine dated 21 April 2017 itself and merely the commentary on this scan provided by Dr Jander.
(e)   A complete reading of the MRI report of Dr Litton, as was provided to
Dr Robinson, established the scan showed a “small vertebral hemangioma within the T7 vertebra… and a Schmorl’s node in the T8 region” and the radiologist considered there was “no significant ligament, disc, or vertebral pathology”.
(f)    On the basis of the documentation provided to him, which included the report of Dr Litton, Dr Robinson said he did not believe Dr Poplawski’s suggestion of a herniated disc was present on the evidence before him. He said Dr Poplawski also suggested there was a possible fracture of the thoracic spine, which would support his finding of impairment under DRE Thoracic category III, but the investigations available to Dr Robinson did not support there was any definitive fracture.
(g)   Dr Robinson did not make a finding of impairment under DRE III, as to do so would have been inappropriate in the circumstances where Ms Procter did not meet the required criterion.
(h)   There was a lack of any evidence to support an assessment under DRE Thoracic Category III where the clinical findings of the Medical Assessor can be considered to fall within the category II criteria.
(i)    In this context, and considering the criteria provided by the AMA-5 Guides, the reasoning process used by the Medical Assessor was not been made out. The Medical Assessor applied incorrect criteria in assessing permanent impairment under this category, and in turn, made a demonstrable error.
(j)    Ground 2 - The Medical Assessor erred in his range of motion assessment of
Ms Procter’s left upper extremity (shoulder). The Medical Assessor assessed 15% WPI of the left shoulder, based on a range of motion assessment of the left upper extremity (flexion, extension, abduction, adduction, internal rotation, and external rotation).
(k)   On review of the earlier and similar assessments of Dr Poplawski (at 9% WPI) and Dr Robinson (at 8% WPI), the Medical Assessor fell into error in assessing impairment under this category. On review of the examination findings, of the Medical Assessor’s assessment was lower than both the assessments of
Dr Poplawski and Dr Robinson.While this was not, of itself, necessarily controversial, at times the decrease in Ms Procter’s ability to execute the range of motion measures was significant. For example, at her examination with
Dr Poplawski which was conducted in February 2023, she had 90˚ of external rotation of her left shoulder. Then, at the examination with the Medical Assessor, only 5 months later, she had only 10˚, a change of 80˚.
(l)    An inference which could be be drawn from these results was Ms Procter’s condition has worsened since her examination with Dr Robinson in
February 2023, or her examination with Dr Poplawski in November 2022. However, there was no medical evidence which would suggest any such deterioration has occurred and no observation from the Medical Assessor which suggested her condition has steadily or suddenly declined at any stage over the past five months.
(m)     Further, a finding where this recent deterioration was present would be inconsistent with the conclusion by Medical Assessor that Ms Procter had reached maximum medical improvement.
(n)   Medical evidence from Barora Physical Therapies and Physio Fit Studios, which was available to the Medical Assessor, should have been looked at by the Medical Assessor in considering whether his test results were plausible and consistent with the impairment he was evaluating, consistent with part 1.36 and 2.5 of the SIRA Guides. The range of motion results detailed in the medical evidence were consistent with or similar to the results reported by Dr Poplawski and Dr Robinson in their reports.
(o)   The Medical Assessor erred in that he did not adequately or at all consider the inconsistency between his range of motion results and the earlier assessments of Dr Poplawski and Dr Robinson, or the references to limited range of motion in the medical evidence; and subsequently erred in considering the results he obtained were plausible and consistent with the impairment being evaluated.
(p)   The Medical Assessor fell into further error when he did not conduct repeated testing (or detail that he had done so in the MAC) or disregard range of motion as being a valid parameter of evaluation in the face of the unreliable and inconsistent results, or provide an explanation as to why he did not do so. The only commentary provided in this regard by the Medical Assessor was that he merely found greater impairment than what Dr Poplawski was able to demonstrate, and so erred by not providing any or any adequate justification in obtaining test results which were contradicted by the medical evidence.
(q)   While a Medical Assessor was entitled to give pre-eminence to their clinical observation when assessing impairment, the available test results established a pattern of range of motion outcomes which were inconsistent with the results obtained by the Medical Assessor. The conclusion made was glaringly improbable and the reasoning process by the Medical Assessor had not been made out, warranting intervention on this aspect of his assessment.
(r)    The Medical Assessor had incorrectly applied the criteria and made a demonstrable error in assessing permanent impairment to this body part.
(s)   Ground 3 - The Medical Assessor erred in deciding not to make a deduction under s 323 of the 1998 Act for impairment due to previous injury or pre-existing condition or abnormality on the basis of incorrect criteria. The Medical Assessor said he was not “persuaded that there is any significant pre-existing condition which would necessitate the application of any deduction”.
(t)    Whether or not the Medical Assessor was persuaded of the presence any significant pre-existing condition was immaterial and the incorrect test to use when deciding whether or not to make a deduction under s 323 of the 1998 Act. It was not required that a Medical Assessor be persuaded that a previous injury or pre-existing condition or abnormality was significant under this section.The accepted test in making such a determination is that if there is a previous injury or pre-existing condition or abnormality, even where the injury, condition, or abnormality was asymptomatic or in remission prior to the subject injury, if the injury, condition or abnormality made the worker vulnerable or contributed to the permanent impairment, a deduction is mandatory. (Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254).
(u)   Therefore, the Medical Assessor made a demonstrable error and applied incorrect criteria in assessing this aspect of permanent impairment.
(v)   Ground 4 - The Medical Assessor erred by not providing any or any adequate reasons as to why a deduction for previous injury or pre-existing condition or abnormality had not been made, and erred by incorrectly recording in the MAC she had no “pre-existing clinical features” which had any “direct effect on the area of concern” and were therefore “not clinically relevant” .
(w)   The Medical Assessor erred in recording that the “pre-existing clinical features” did not have “any direct effect on the area of concern” and were therefore not “clinically relevant”.
(x)   The medical history which can be obtained from a reading of the evidence enclosed to the proceedings details an extensive history of symptomology closely related to and/or directly emulated by Ms Procter’s present symptoms as reported to her treating providers and the Medical Assessor and in particular:
(i) Dr Robinson acknowledged the clinical records disclosed a “constancy of thoracic pain” prior to the subject injury, and the work injury had “obviously” increased her symptoms, and
(ii) the records referred to by Dr Robinson (which were enclosed in the proceedings) included the clinical records of Physio Fit Studio which revealed the worker suffered from osteopenia, back pain, degenerative disease due to a previous work injury in around 2015 and 2016, and Meniere’s disease. The practice had treated the worker since June 2010.
(y)   This material was not available to Dr Poplawski, who examined Ms Procter at her request and provided his report dated 30 November 2022. In the absence of these records, Dr Poplawski was obliged to accept the incorrect history provided by Ms Procter and did not consider any impairment was attributable to previous injury or pre-existing condition or abnormality. In fact, no consideration of
Ms Procter’s prior medical history or general health was made by the doctor at any stage in his report.
(z)   In light of the above, Ms Procter suffered from cervical, thoracic, and left-sided rib pain prior to the subject injury. The consultation notes provide a clear timeline of pre-existing problems in these areas from at least 2010, which continued to be symptomatic up until the subject injury. Ms Procter also suffered from a number of other health problems both prior to and since the subject injury but none of these conditions were reported by Ms Procter to the Medical Assessor. He did not acknowledge them or their potential effects on her physical functioning in his report. He did not refer to these clinical records in any capacity in the MAC. The “details of any previous or subsequent accidents, injuries or conditions” heading and “general health” heading disclosed an inaccurate history of lower back pain (which was fully resolved), a motor vehicle accident in December 2017, and the worker being “rather overweight”.
(aa)    While there was no requirement for the Medical Assessor to discuss each and every piece of evidence in the MAC, and any lack of reference should not be taken as the Medical Assessor not having had regard to the material, the content of this material revealed a history of relevant pre-existing conditions and health problems experienced by Ms Procter, as well as problems experienced after the injury. The Medical Assessor should have considered and explained how the medical conditions and pre-existing symptoms demonstrated in the medical evidence, resulted in vulnerability or contributed to her impairment.
(bb)    Any or any adequate consideration of these factors would have resulted in a deduction under s 323, or, if no deduction was made, would have required the Medical Assessor to provide any or any adequate explanation as to why he reached this conclusion in the face of the evidence.
(cc)     The Medical Assessor fell into error by failing to provide a deduction in the face of clear evidence of a symptomatic condition or abnormality which was treated onwards from 2010 and continued to be symptomatic up until the subject injury. Further, the reasoning process used by the Medical Assessor was unsupportable and had not been made out in that he did not provide any or any adequate reasons for his conclusion, his conclusion was glaringly improbable, and he appeared unaware of significant factual matters; all of which resulted in a demonstrable error warranting intervention in this category of impairment.
(dd)    For the reasons outlined above, the appellant submits the MAC contained a demonstrable error and/or was based on incorrect criteria.
(ee)    The MAC should be revoked.
Ms Procter’s submissions included the following:
(a)   Ground 1 – the Medical Assessor clearly identified and documented ongoing neurological impairment in relation to the injury and stated: “Sensation to pinprick was markedly reduced in the distribution of the painful and tender area at the medial border of the left scapula. She also mentioned that on occasions, the pain would radiate around to the front (suggestive of irritation of a sub-costal nerve)”.
(b)   The Medical Assessor in the summary section of the MAC related the ongoing neurological impairment to the injury, stating: “ …she sustained injury to the left sided rhomboids, serratus anterior and the probable nerve distribution to these muscle complexes. The innervation for the rhomboids comes from C5 (dorsal thoracic nerve) and for the serratus anterior from the long thoracic nerve, C5, 6 and 7. At this assessment it did appear evident that there was a combination of dysfunction of these nerves and the associated muscles”.
(c)   The Medical Assessor assessed WPI from the thoracic spine injury as follows: “With the features which Mrs Procter demonstrated at this assessment, I am persuaded that she is in DRE Thoracic Category III. The reason for this is that there is a history of regular pain radiating around from the spinal area on the left side towards the anterior, suggestive of dysfunction of a sub-scapular nerve. There is also an area of markedly reduced sensation to pinprick on the left side over the general distribution of the rhomboids. Deep breathing, coughing or sneezing also causes severe pain in this area, all of which quite strongly suggest associated neurological irritation”.
(d)   DRE III allows for a WPI ranging between 15% and 18%, depending on the activities of daily living. The Medical Assessor assessed 15% WPI plus 2% WPI for ADL.
(e)   Wile the Medical Assessor did not document neurological impairment in the lower limbs, he clearly found other neurological impairment iwhich he was entitled to take into account in assessing the appropriate DRE category, using his clinical judgment which was permitted when the Guides do not adequately addtess or include an impairment (Clause 1.6 (b) of the Guidelines).
(f)    Clause 1.23 of the Guidelines provides that in situations where impairment ratings are not provided, that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living. The assessor must stay within the body part/region when using analogy. The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.
(g)   Therefore, it was not established that the Medical Assessor applied incorrect criteria in light of his findings. In any event, if the Medical Assessor did incorrectly assess Ms Procter as DRE III instead of DRE II, this would have resulted in an assessment between 5-8% + 2% for ADL and she would have been entitled to an assessment in accordance with Clause 15.6 of the Guidelines in respect to the injuries to her left rhomboids, serratus anterior and the nerve distribution to these complexes, the dorsal thoracic nerve and the long thoracic nerve (peripheral nerve injuries).
(h)   Clause 5.16 and Table 5.1 of the Guidelines provide that impairment due to peripheral nerve injuries should be evaluated according to clinical features. Therefore, there would be no material difference in the overall assessment od WPI.
(i)    Ground 2 – the presentation at the examination by the Maedical Assessor was inconsistent with prior assessments of the left shoulder. The MAC did not reveal any errors on the part of the Medical Assessor with respect to the examination and assessment of Ms Procter’s range of motion, nor did it reveal that he applied incorrect criteria. The fact that Ms Procter’s left shoulder was deteriorating and not improving was corroborated by the Medical Assessor’s findings on examination and his assessment.
(j)    The Medical Assessor made express findings that Ms Procter’s presentation was very consistent and that she came across with an extraordinarily high work ethic. As there was no inconsistent presentation, Clause 1.36 of the Guidelines did not apply to the assessment and there was no demonstrable error or incorrect criteria applied.
(k)   The MAC was not made on the basis of incorrect criteria nor did it contain a demonstrable error in relation to the assessment of the left shoulder.
(l)    Ground 3 – the appellant failed to identify which body part should have been subject of a deduction and why. In any event, the Medical Assessor correctly interpreted the evidence contained in the ARD and the Reply and was well aware of the full factual matrix of the injury and appropriately assessed the relevant facts and issues having regard to his examination of Ms Procter as well as the evidence made available to him.
(m)     The Medical Assessor’s summary of that evidence was: “There is a history of lower back pain in 2016, although this fully resolved and is several segments distal to the current level of concern. She also mentioned that she had been a passenger in a vehicle which had been hit from the side in December 2017, although again this had not caused any increase in the condition of concern”.
(n)   It was clear that there was simply no pre-existing injury affecting the compensable injury, and accordingly the Medical Assessor was correct in not making a deduction pursuant to s 323 of the 1998 Act.
(o)   Ground 4 – This is an extension of Ground 3 and the appellant failed to establish that the MAC contained a demonstrable error or the Medical Assessor applied incorrect criteria – the submissions above are repeated and relied upon.
(p)   The assessment should be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The 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.
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.

Ground 1 – Assessment of the thoracic spine

The appellant submitted that the Medical Assessor fell into error in assessing Ms Procter as having a DRE category III impairment as he did not identify any neurological impairment of any lower extremity or make a finding of clinically significant radiculopathy.
AMA 5 at Table 15-4 (page 389) provides the following criteria for rating impairment due to thoracic spine injury as follows:
Category II
“History and examination findings are compatible with a specific injury or illness;
findings may include significant muscle guarding or spasm observed at the time of the
examination, asymmetric loss of motion, or nonverifiable radicular complaints,
defined as complaints of radicular pain without objective findings, no alteration
of motion segment integrity”.
Category III
“Ongoing neurologic impairment of the lower extremity related to a thoracolumbar
injury, documented by examination of motor and sensory functions, reflexes, or
findings of unilateral atrophy above or below the knee related to no other condition;
impairment may be verified by electrodiagnostic testing
Or
Clinically significant radiculopathy, verified by an imaging study that demonstrates
a herniated disc at the level and on the side that would be expected from
objective clinical findings; history of radiculopathy, which has improved following
surgical treatment
Or
Fractures: (1) 25% to 50% compression fracture of one vertebral body; (2) posterior
element fracture with mild displacement disrupting the canal; in both cases the
fracture has healed without alteration of structural integrity; differentiation from a
congenital or developmental condition should be accomplished, if possible, by
examining pre-injury roentgenograms, if available, or by a bone scan performed after
the onset of the condition.”
The Guidelines provide the following:
“Part 1.36 of the SIRA Guides refers to page 19 of the AMA-5 which states:
Consistency tests are designed to ensure reproducibility and greater accuracy.
These measurements, such as one that checks the individual’s range of motion are
good but imperfect indicators of people’s efforts. The assessor must use their
entire range of clinical skill and judgement when assessing whether or not the
measurements or test results are plausible and consistent with the impairment
being evaluated. If, in spite of an observation or test result, the medical
evidence appears insufficient that an impairment of a certain magnitude exists,
the assessor may modify the impairment rating accordingly and then describe
and explain the reason for the modification in writing.”
Part 2.5 provides the following commentary in relation to range of motion assessments:
“(a)    If the assessor is not satisfied that the results of a measurement are reliable,
repeated testing may be helpful in this situation.
(b)     If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation.
(c)     If ROM measurements at examination cannot be used as a valid parameter of
impairment evaluation, the assessor should then use discretion in considering
what weight to give other available evidence to determine if an impairment is
present.”
The Medical Assessor “Under History Relating to the Injury” noted that Ms Procter had grabbed a patient who had fainted during an immunisation process which resulted in her left forequarter being badly wrenched with a lot of pain around the scapula.
Under “Present Symptoms” the Medical Assessor wrote:
“Pain in the mid-thoracic spine close to the lateral border of the left scapula. Deep
breathing makes this condition worse, which results in a lot of limitations in her physical activities. Any kind of bending or lifting also makes the condition worse. She feels that there has been some lateral migration of the left scapula and also some winging. She drew attention to the left costo-chondral margin where she felt that this had expanded. She kindly demonstrated a photograph of herself in a supine position, which does demonstrate this feature.
Body rotation is very grossly reduced.
She has very gross restriction in trying to lift anything, particularly an object out in front of her.”
Under “Findings on Physical Examination” the Medical Assessor wrote:
“She was in a lot of discomfort, particularly when she carried out most movements with her body and upper limbs, especially on the left side.
Thoracic Spine. She held herself with a slight forward stoop, which would increase the static loading of the spinal extensors. She had almost no capacity for further spinal extension and rotatory movements were grossly reduced, particularly towards the left side. There was a focus of pain and tenderness along the length of the medial border of the left scapula (rhomboid distribution). This edge of the scapula was measured at 10cm from the mid-line, whereas on the right it was 8cm. Very cautiously conducted provocation testing (inclined push-up) demonstrated winging of the left scapula, suggesting dysfunction of the serratus anterior. Thoracic springing caused irritation and mild pain over the left costo-chondral margin. Sensation to pinprick was markedly reduced in the distribution of the painful and tender area at the medial border of the left scapula. She also mentioned that on occasions, the pain would
radiate around to the front (suggestive of irritation of a sub-costal nerve)”.
Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“In this event it looks as though she sustained injury to the left sided rhomboids, serratus anterior and the probable nerve distribution to these muscle complexes. The innervation for the rhomboids comes from C5 (dorsal thoracic nerve) and for the serratus anterior from the long thoracic nerve, C5, 6 and 7. At this assessment it did appear evident that there was a combination of dysfunction of these nerves and the associated muscles”.
The Medical Assessor assessed WPI from the thoracic spine injury as follows:
“This is addressed in AMA 5 Page 389, Table 15-04.With the features which
Mrs Procter demonstrated at this assessment, I am persuaded that she is in DRE Thoracic Category III. The reason for this is that there is a history of regular pain radiating around from the spinal area on the left side towards the anterior, suggestive of dysfunction of a sub-scapular nerve. There is also an area of markedly reduced sensation to pinprick on the left side over the general distribution of the rhomboids. Deep breathing, coughing or sneezing also causes severe pain in this area, all of which quite strongly suggest associated neurological irritation. This category provides a whole person impairment ranging between 15% and 18%, depending on the activities of daily living. For this, she would attract a further 2%, giving 17%.”.
In commenting on the other medical opinions, the Medical Assessor wrote:
“My assessment is very similar to that of Specialist Orthopaedic Surgeon, Dr Zbigniew Poplawski in his report of 30/11/22. The only difference is that Dr Poplawski applies an ADL figure of 3%, whereas I believe 2% is more appropriate. Also, the range of movement which he demonstrated with the left upper extremity was greater than I was able to demonstrate.
Specialist Orthopaedic Surgeon, Dr Paul Robinson in his reports of 14/02/23 and 14/03/23 selects DRE II for the thoracic spine with only 1% for activities of daily living. Even if everything pointed to DRE II, with great respect I believe a greater factor for the activities of daily living would still be most appropriate. Dr Robinson also advises that there should be a deduction of half for pre-existing conditions. With great respect, I am unable to demonstrate significant pre-existing conditions at all. He also advises that this condition was an aggravation of a pre-existing condition and that the aggravation has now ceased. Again, with the greatest of respect, I am unable to support this view when for well over six years since the start of this condition, Mrs Procter has continued to experience severe
dysfunction of her left forequarter, which she never experienced before this event”.
In the report of the MRI scan dated 21 April 2017, Dr Litton noted:
“No significant ligament, disc or vertebral pathology, however theer is a small focus of T1/T2 hyperintensity with loss of signal and interventional recovery sequence is consistent with a small vertebral haematoma within the T7 vertebral body. A small discogenic endplate impression at T8 consistent with Schmorl’s node in te context of mild mid thoracic disc degenerative disease. No concernig lesions. No abnormality of the ligament signal. No evidence of foraminal or canal compromise. Adjacent soft tissue outline normally. No significant costovertebral joint degenerative changes are evident.”
The Appeal Panel noted that the Medical Assessor appeared to have based his diagnosis and assessment of DRE III on the fact that the MRI on 21 April 2017 suggested “anterior bulging at T4/5 deviated towards the left”. The Appeal Panel considered that according to the report of Dr Litton the MRI scan did not show disc pathology at T4/5. Further, if there was a bulge present, Dr Litton considered it was an anterior bulge which would not have had any effect on nerve roots.
In order for the Medical Assessor to make an assessment of DRE III for the thoracic spine in this matter on the basis of clinically significant radiculopathy, it would be necessary to have MRI confirmation of a disc lesion causing nerve root pressure which was not the case.
On examination the Medical Assessor noted some scapular winging with some reduced sensation to pinprick in the medial border of the left scapula. He went on to note “she also mentioned that on occasions, the pain would radiate around to the front (suggestive of irritation of a subcostal nerve)”. While it was possible that there was irritation of a subcostal nerve, there was nothing in the history nor the findings on examination of the Medical Assessor that suggested there was thoracic radiculopathy that would place Ms Proctor in DRE Category III.
In his “Summary of injuries and diagnoses” the Medical Assessor referred to nerve damage from C5/6 and C6/7, but these were cervical nerves and unrelated to the site of injury.
On examination, the Medical Assessor noted that Ms Procter did demonstrate winging of the scapula, and by his measurements noted that the scapula has moved laterally, whereas with dysfunction of the serratus anterior as indicated by the Medical Assessor, the scapula would move medially. This was anatomically incorrect.
In his reasons for assessment, the Medical Assessor suggested that the reason for assessment of DRE Thoracic Category III was that there was “a history of regular pain radiating around the spinal area on the left side towards the anterior, suggestive of dysfunction of a subscapular nerve”. However, the symptoms described by the Medical Assessor were sensory, and the subscapular nerve is purely a motor nerve, with nothing to do with sensation. The subscapular nerve supplies the subscapularis muscle which functions as an internal rotator of the shoulder, and is not related to any of the pathology being reviewed.
The Appeal Panel was satisfied that there was no ongoing neurologic impairment of the lower extremity related to a thoracolumbar injury, and there was no 25% to 50% compression fracture of one vertebral body or posterior element fracture with mild displacement disrupting the canal.
In the absence of a finding that met the criteria set down in AMA 5 at Table 15-4 for DRE Thoracic Category III, the Appeal Panel were satisfied that the Medical Assessor made a demonstrable error in rating Ms Procter as DRE III and applied incorrect criterial in makig this assessment.

Ground 2 - Assessment of left shoulder

The appellant submitted that the Medical Assessor erred in that he did not or did not adequately consider the inconsistency between his range of motion results and the earlier assessments of Dr Poplawski and Dr Robinson, and the references to limited range of motion in the medical evidence. The appellant submitted that the Medical Assessor subsequently erred in considering the results he obtained were plausible and consistent with the impairment being evaluated.
The appellant submitted that the Medical Assessor fell into further error when he did not conduct repeated testing (or detail that he had done so in the MAC) or disregard range of motion as being a valid parameter of evaluation in the face of the unreliable and inconsistent results, or provide an explanation as to why he did not do so.
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Upper Limbs. No significant features were identified with the elbows, wrists, hands or any
of the digits. There were no neurological findings in the upper limbs with equivalent, brisk and quite easy to demonstrate reflexes at the elbows (C5 and 7) and at the wrists (C6).
Shoulder Movements
MOVEMENT      RIGHT           LEFT
Flexion               180°               40°
Extension           50°                 10°
Abduction           180°               30°
Adduction           50°                 10°
Internal rotation    80°                 80°
External rotation 80°                 10°
Attention is drawn to the gross restriction of movement, particularly with elevation, although preservation of internal rotation.”
Under “Consistency of presentation ” the Medical Assessor wrote:
“Mrs Procter’s presentation was very consistent. She came across with an extraordinarily high work ethic and advised that she just has to work to try to give appropriate support to her family. She also advised that she has done everything in her power to minimise the effects of this condition but unfortunately without significant change.”
The Medical Assessor assessed WPI from the left upper extremity (shoulder) as 10% left UEI for flexion, 2% left UEI for extension, 7% left UEI for Abduction, 1% left UEI for Adduction and 5% left UEI for external rotation which gave a subtotals of 25% UEI. Using Table 16-03 (page 439 of AMA 5) this was converted to 15% WPI.
In commenting on the other medical opinions, the Medical Assessor wrote:
“My assessment is very similar to that of Specialist Orthopaedic Surgeon, Dr Zbigniew Poplawski in his report of 30/11/22….Also, the range of movement which he demonstrated with the left upper extremity was greater than I was able to demonstrate.”
The Appeal Panel accepted that there were very significant differences in the range of movement of the left shoulder found by the Medical Assessor compared to those found by Drs Poplawski and Robinson, who had examined Ms Proctor in November 2022 and February 2023 respectively. The Appeal Panel could see no reason for the significant decrease in range of movement, and noting this, the Medical Assessor should have provided reasons for why he felt there had been a significant deterioration. The Appeal Panel concluded that the Medical Assessor failed to provide adequate reasons in his assessment of the left shoulder and that failure was a demonstrable error.

Grounds 3 and 4 - s 323 deduction

The appellant submitted that the Medical Assessor erred in deciding not to make a deduction under s 323 of the 1998 Act for impairment due to previous injury or pre-existing condition or abnormality. The appellant noted that the Medical Assessor said he was not “persuaded that there is any significant pre-existing condition which would necessitate the application of any deduction”.
The appellant argued that whether or not the Medical Assessor was persuaded of the presence of any significant pre-existing condition was immaterial and the incorrect test to use when deciding whether or not to make a deduction under s 323 of the 1998 Act. The accepted test in making such a determination is that if there is a previous injury or pre-existing condition or abnormality, even where the injury, condition, or abnormality was asymptomatic or in remission prior to the subject injury, if the injury, condition or abnormality made the worker vulnerable or contributed to the permanent impairment, a deduction is mandatory. (Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254).
While the Appeal Panel agreed with part of this submission, that is, a deduction is to be made for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality even though the pre-existing condition had been asymptomatic prior to the injury, we do not agree that it is permissible to make a deduction merely on the basis of vulnerability. In Ibraham v Sellers Fabrics Pty Ltd [2023] NSWSC 1320 Harrison AsJ held that s 323 did not permit a deduction to be made on the bassi of a predisposition or susceptibility.
The Medical Assessor noted a history of lower back pain in 2016 “although this fully resolved and is several segments distal to the current level of concern”. He reported that Ms Procter also mentioned that she had been a passenger in a vehicle which had been hit from the side in December 2017, although again this had not caused any increase in the condition of concern.
In concluding that there was no proportion of loss of impairment due to a pre-existing injury, pre-existing condition or abnormality, the Medical Assessor wrote:
“Attention is drawn that there have been pre-existing clinical features, although none of these have had any direct effect on the area of concern with this issue and therefore are not assessed as being clinically relevant.”
In commenting on the other medical opinions, the Medical Assessor wrote: “Dr Robinson also advises that there should be a deduction of half for pre-existing conditions. With great respect, I am unable to demonstrate significant pre-existing conditions at all”.

At part 11 of the MAC, the Medical Assessor wrote: “I am not persuaded that there is any significant pre-existing condition which would necessitate the application of any deduction”.
The Appeal Panel agree that the Medical Assessor did not apply the correct correct test in considering whether to make a deduction pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality. Failure to apply the correct test was a demonstrable error and involved the application of incorrect criteria.
Ground 4 concerned the failure by the Medical Assessor in failing to provide adequate reasons as to why a deduction for previous injury or pre-existing condition or abnormality had not been made, and by incorrectly recording in the MAC she had no “pre-existing clinical features” which had any “direct effect on the area of concern” and were therefore “not clinically relevant”.
The Appeal Panel accepted that the Medical Assessor made a demonstrable error in stating that Ms Proctor had low back pain in 2016 which had resolved and was at a much lower level, and that she was in a motor vehicle accident in December 2017 which had not caused any increase in the condition of concern.
Dr Robinson, in his report of 14 February 2023, carried out a review of the documentation, which referred to evidence of Ms Proctor having had problems in her thoracic spine region radiating around to the front of her chest in June 2012, and also thoracic pain radiating up to her neck in March 2015. Dr Robinson reported that in March 2016, the general practitioner noted that there was pain in her thoracic region on the left side and that on 5 December 2016 an MRI was suggested and a mention of T4/5 was made in the notes.
The appellant referred to the clinical records from Physio Fit Studio including the following:
(a)     In June 2010 she said she hurt her left side severely. She had a catching pain in “Tx”. She had mid back soreness.
(b)     In July 2010 she reported improvement in her “upper Tx” symptoms, but pump classes could make this area sore.
(c)     In August 2010 she described her “upper TX” symptoms as coming and going.
(d)     In December 2010, she reported her upper back went into spasm, potentially due to a coeliac reaction. The note outlined “deep breathing hurts, twisting. Dry retching. Pregnant”.
(e)     In February 2011, she reported tension in her “mid Tx” and “Cx”. The physiotherapist performed a “Tx tension release, gentle adj./mass”.
(f)      In April 2011, she had “mild Tx tightness”, and this was adjusted by the physiotherapist.
(g)     In May 2011, she had a “tender mid back”.
(h)     She was treated for “mid Tx” tightness again in July and August 2011.
(i)      In around October 2011 she was treated for “lt Cx Tx jct tight”, which meant she was treated for a tight left cervical thoracic junction. There was reference to a “mass” at the “mid Tx”. She reported a stinging pain in her “upper Lx/Tx jct”.35
(j)      In February 2012 she was treated for a “# [fractured] rib or cartilage tear”. She had “++” pain at the left lower ribs. She had tightness in her mid-back. The ribs which were treated were on the left side at 11 and she was treated with an adjustment of her upper thoracic spine.
(k)     In March 2012 the consultation notes continue to record symptoms at the mid-back “lt” [left] and thoracic spine.
(l)      In April 2012, she reported her top thoracic felt like it was tightening up. She had spasms in her right “Cx Tx” junction. On examination she had a tight left mid-thoracic spine.
(m)    In June 2012, she reported front, left-sided rib pain. The physiotherapist said she had a mass along her ribs [emphasis added].
(n)     In October 2012, the consultation note said her thoracic pain was “jammed” and her Tx (illegible) was starting to feel painful. She was treated for left sided mid-thoracic and “CxTx” symptoms. She was treated for symptoms at T8-12 on the right side and ribs (side not specified).
(o)     In February 2014 the worker returned for further treatment for thoracic pain on the left side between T4-T12.41
(p)     In May 2014 the worker was observed to have a tight left thoracic spine, which was treated with an adjustment, but this caused a spasm. The mass was described as “settled”. She had a spasm at the cervical-thoracic junction.
(q)     The worker was treated for symptoms in her mid-thoracic spine (right side) as well as for her ribs in March and May 2015. In June 2015 she had left upper thoracic pain and stiffness between T4-T7.
(r)      In July 2015 she said her upper thoracic area was painful again on the left side between T4-T7. The notes said the thoracic spine had “moss” [sic] with breathing. In November 2015 she had symptoms at her left thoracic spine at T2-4.
(s)     The consultation notes describe the worker as having symptoms at the left sided thoracic spine at T4 and T5, and on the right side at T6 and T7.
(t)      On 29 August 2016 the consultation note outlined the worker’s mid thoracic was “jammed for months”.
(u)     In September 2016, the consultation notes said the worker had a mass along her spine and had symptoms at the left “Tx Cx”.
(v)     In October 2016 the worker reported thoracic pain all week. The physiotherapist observed a tight left-sided “Tx Cx jct”.
(w)    In December 2016 she reported numbness in her left thoracic. She was planning to attend an MRI scan. There is reference to a bone tensity test which said she had increased arthritis/calcification. On examination she had symptoms at T4-T5.
The Appeal Panel accepted that Ms Proctor’s symptoms in the thoracic region were longstanding.
The Appeal Panel considered that re-examination was necessary as there was insufficient information on which to make a determination.
As noted above, Medical Assessor McGroder re-examined Ms Procter on 4 December 2023. Medical Assessor McGroder provided the following report:
1.   The workers medical history, where it differs from previous records
Mrs Procter was present with her husband, Andrew.
Mrs Procter is now 49 years of age. She lives with her husband and they have three children who were born in 2006, 2008 and 2011, all by Caesarean section.
She said her husband is very supportive and does a lot of the work to help her around the house and they get someone in to do this three days a week. She cannot do anything that involves elevation of her left arm or that puts any strain on her left arm.
She said that when she was pregnant she developed low back pain and sciatica. This was one of the reasons she saw physiotherapists through 2010/2011/2012 and she had various aches and pains. They also involved her upper back.
She said that she had Coeliac disease and one of the problems with Coeliac disease is that it was also accompanied by body aches and pains. This is another reason why she saw physiotherapists from 2011 to 2016, because of the pain. She said that this did involve her back but she said that the problems were minor and she didn’t take any time off work because of these. She was able to do significant physical work until the injury that is the subject of this report.
She also has osteopenia which doesn’t affect her. She had Meniere’s Disease. Her thyroid function is being monitored.
In 2005 she had a melanoma removed from her right chest. The scar developed keloid and she subsequently had plastic surgery to remove this. She has been left with a scar over the anterior chest/axillary wall which is 12cm in length. She doesn’t feel that this is involved in her current chest problems because it is on the right and her symptoms are on the left.
She said that she has some anxiety/depression and feels that this is related to the injury that is the subject of this report.
She had an ankle injury in 2019 when she fell from a kerb and sustained a minor fracture. She was treated with a moon boot. She saw Dr O’Toole in 2020 with regard to a fitness for work assessment. At that stage she was working in her current job as a Nurse Educator. She said that he didn’t inquire about any other problems and only concentrated on her ankle and felt that from this point of view she was able to perform her normal duties.
She was also involved in a road traffic accident in December 2017. She said that there was no injury in the accident but the driver of the motor bike that hit the side of her car was injured and he grabbed her left arm and there was a temporary aggravation of her left shoulder condition which returned to background level.
She is a career Registered Nurse and at the time of her injury she was a School Immunisation Nurse and also did vision screening for pre-school students. She said after her injury in 2017 she ceased these jobs and after a short period of desk work she then obtained alternative employment as a Nurse Educator and she is currently doing this full time. She is working at the Southern Cross University on the Gold Coast which is not far from where she lives and she is able to do some work from home.
She said that she also had a significant episode of Whooping Cough in 2012 and because of a lot of coughing she developed a lot of pain around her chest and back and she said this is one of the reasons for the entries in her GP’s notes and her physiotherapist’s notes.
She went through the history that she had outlined previously where she developed pain in the mid-thoracic and left scapular area when she supported a girl who fainted during an immunisation process. She had problems breathing at the time. She has seen a number of different doctors, including Sports doctors and Pain Physicians. These included Dr Ohmsen who gave her injections into the intercostal spaces; Dr Lewis who gave her costovertebral injections; and Dr Ring who discussed facet blocks but thought that further injections would not help. The last specialist she saw was Dr Grice, Pain Specialist, and he also discussed various treatment modalities including facet blocks and ablation procedures but these suggestions weren’t acted on.
Investigations so far included a MRI of the thoracic spine in 2017 which was non-productive but it didn’t demonstrate any evidence of disc prolapse or any evidence of exit foraminal narrowing or nerve root compression. A bone scan suggested some increased uptakes in the facet joints and a MRI of the left shoulder suggested mild bursitis and infraspinatus tendinitis. None of these investigations explained her condition according to her treating doctors.
Her current treatment involves occasional physiotherapy and she also has remedial massage. She takes Nurofen and Voltaren. She takes Panadol Osteo. She is on Duloxetine for neuropathic pain and depression and she also takes Endep when her symptoms are severe.
She said that her problems at the moment are coming from the mid thoracic area and the left scapular area where she gets spasms and burning pain. She said that there is a numb patch medial to her scapular. She said that the thoracic pain is in the medial aspect of the left scapular and it radiates through to the inferior surface of the scapular to the lateral chest wall and around under her breast. There is a burning sensation down the outside of her left arm into her fifth finger occasionally, although this is not present at the moment. She gets tingling in the second and third fingers of the left hand when her pain is severe or after sneezing but this is also not present at the moment.
She feels that her left scapular has migrated laterally. She feels that her left anterior ribs are more prominent than those on her right.
She said that her left shoulder movement is restricted but she says this is not from the shoulder joint but because of the dysfunction involving her left scapular. She said that the scapular cannot stay close to her rib cage when she tries to move her arm and movement is also painful.
There is no low back pain and no radiation of symptoms to the lower extremities.
2.   Additional history since the original Medical Assessment Certificate was performed
There have been no additional events. She does have a certificate from her GP, Dr Bronwyn Mann, who stated that she had been Mrs Procter’s regular practitioner since 2010 and she confirmed that prior to the work injury in 2017 she had no relevant or contributory pre-existing conditions. She did note a reference to Whooping Cough related chest pain in 2012.
I enquired with Mrs Procter as to why on her last examination with the AMS that she displayed significant restriction of range of movement compared to that displayed to other doctors. She said that she doesn’t think she has a primary shoulder problem but the problem with moving her arm is because of her scapular problem and that this was worse after the other doctors because her condition is gradually worsening.
I also enquired as to why she hasn’t been investigated if she has such significant disability and the last investigation was some five years ago. She said that she has been told that nothing will show up so she doesn’t think she should do this. She also said that she now has a full time job and she doesn’t want any intervention that would suggest that she would lose this job.
3.   Findings on clinical examination
A 12cm scar was noted over the anterior right chest wall towards the axilla. There was some tethering of the scar.
There was no obvious muscle wasting involving the left shoulder relative to the right. Biceps circumference was 36cm bilaterally and forearm circumference 29cm on the right and 28cm on the left.
She displayed a full pain free range of movement of the cervical spine. She displayed restriction of range of movement of the lumbar spine on forward flexion which was only to knee level and she said that this resulted in scapular and mid thoracic pain and this is why she could not flex any further. Other movements of the thoracolumbar spine were reasonable apart from rotation and this demonstrated in the thoracic segment with the lumbar spine immobilised that she could rotate towards the right fully but this was minimal towards the left.
The left lower rib cage did appear slightly more prominent than that on the right. On assessment of range of movement of the shoulders, this was through a variable range but it was noted that when testing for winging of the scapular she could extend her left shoulder to 80 degrees but I could not detect any winging, although there did appear to be some lateral migration of the left scapular relative to the right. It was, however, difficult to compare left and right scapula function due to her reluctance to move her left shoulder. It is noted that at various stages of her assessment she displayed a full range of internal and external rotation. Brachial plexus testing was negative but it was noted that she could abduct her left arm to 80 degrees. Adduction was, however, to 20 degrees. Backward extension was to 30 degrees.
I couldn’t detect any wasting or specific muscle weakness involving the upper extremities although generalised weakness was demonstrated on the left relative to the right. Reflexes were equal and normal. There was no diminished sensation in the upper extremities but there was an oval area of diminished sensation medial to the left scapular not corresponding to a specific dermatomal or sensory nerve root distribution.
There was tenderness along the medial border of the left scapula extending laterally and anteriorly to the costochondral junction.
4.   Results of any additional investigations since the original Medical Assessment Certificate
21 April 2017 – MRI Thoracic Spine
A small focus of T1 and T2 hyperintensity with loss of signal on inversion recovery sequence is consistent with small vertebral haemangioma within T7 vertebral body. A small discogenic endplate impression at T8 consistent with Schmorl’s node in the context of mild mid thoracic disc degenerative changes. No concerning lesion. No abnormality of ligamentous signal. No evidence of foraminal or canal compromise. Adjacent soft tissues outline normally. No significant costovertebral joint degenerative changes are evident.
There have been no additional investigations.
5.   Assessment of Impairment
Mrs Procter presents with what I feel is best explained as multifactorial left upper quadrant pain. The thoracic spinal pain could be contributed to by facet and costotransverse degeneration. There is chest pain possibly secondary to sternocostal inflammation. There is some shoulder scapular loop muscle dysfunction with some asymmetry of movement but this does not have a neurological origin. There is secondary shoulder dysfunction without there being a specific shoulder joint injury.
I feel that Mrs Procter does not qualify for radiculopathy according to WorkCover Guidelines Section 4.27. She does not have loss or asymmetry of reflexes, there is no muscle weakness that is anatomically localised to an appropriate spine nerve distribution, there is no reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution. There is no concomitant imaging study. The only investigation that she has had was a MRI performed on 21 April 2017 which does not show any evidence of exit foraminal narrowing, nerve root impingement or compression. (I note that this has been incorrectly reported as disc bulging at T4/5 towards the left).
According to Table 15.5, Mrs Procter thus qualifies in DRE Thoracic Category 2 at 5 to 8% WPI. There is a history of injury with dysmetria and non-verifiable radicular complaints.
I have added 2% for the effect on ADL’s because of difficulty with house and yard work, although I note that she is working full time.
This is 7% WPI.
I note from the GP’s records and physiotherapy records that Mrs Procter had been having treatment for injuries to her cervical and thoracic spines and also her lumber spine. I note that there were multiple entries from 2010 to 2016 with regard to treatments on the thoracic spine and chest wall. Mrs Procter relates these to her pregnancies, Coeliac disease, and to developing Pertussis and accepting that this may be relevant I have limited the deduction to one-tenth. After rounding this is 6% WPI.
With regard to the left shoulder range of movement has been used to assess impairment and this was based today on the maximum range of movement that was able to be obtained at various stages of her assessment.
Impairment has been assessed according to Tables 16.40, 16.43 and 16.46. Flexion to 80 degrees is 7% UEI and extension to 30 degrees is 1% UEI. Abduction to 80 degrees is 5% UEI and adduction to 20 degrees is 1% UEI. Internal and external rotation to 80 degrees is 0% UEI. This is a total of 14% UEI, which converts to 8% WPI. There is no deduction for a pre-existing condition.”
The Appeal Panel has adopted the report and findings of Medical Assessor McGroder. The Appeal Panel agreed with the assessment made by Medical Assessor McGroder in this matter.
The Appeal Panel agreed that Ms Procter clearly did not qualify for radiculopathy according to WorkCover Guidelines section 4.27. Her asymmetry of movement of the scapular appeared to be the result of muscular dysfunction and not neurologically mediated. On examination, Medical Assessor McGroder did did not find evidence of scapular winging as described by the Medical Assessor and thus there was no evidence of the condition involving the long thoracic nerve. The Appeal Panel noted that there was no evidence that the dorsal thoracic nerve had been injured and in any event that was a motor nerve with no sensory function. As noted above the Medical Assessor pointed out that the nerves that he felt were involved were from C5, C6 and C7. Even if there were evidence of dysfunction of these nerves they involve the cervical segment and not the thoracic segment so there can be no justification for using these as a basis for diagnosing radiculopathy involving the thoracic spine.
The Appeal Panel noted that on examination by Medical Assessor McGroder there was clear evidence of dysmetria involving the thoracic spine, demonstrating that Ms Procter qualified in DRE Thoracic Category II.

Ms Procter submitted that even if the Medical Assessor did incorrectly assess Ms Procter as DRE III instead of DRE II, she would have been entitled to an assessment in accordance with cl 15.6 of the Guidelines in respect to the injuries to her left rhomboids, serratus anterior and the nerve distribution to these complexes, the dorsal thoracic nerve and the long thoracic nerve (peripheral nerve injuries) and there would be no material difference in the overall assessment of WPI.
On examination Medical Assessor McGroder found no evidence of classical scapular winging to suggest paralysis of the serratus anterior muscle. This subsequently does not demonstrate evidence of injury to the long thoracic nerve. The Medical Assessor based his suggestion of injury to the dorsal scapular nerve (he referred to dorsal thoracic nerve) on tenderness of the rhomboid muscle. This does not represent paralysis of this muscle and there was no evidence that the dorsal scapular nerve had been injured. The area of diminished sensation in the vicinity of the rhomboid muscle did not correspond to a specific peripheral nerve distribution. There was subsequently no impairment assessable with regard to peripheral nerve injuries.
Medical Assessor McGroder made a deduction of one tenth for pre-existing condition in the thoracic spine. The Appeal Panel agreed with this deduction as there was a history of thoracic and chest wall pain in the years leading up to the injury on 22 February 2017. The Appeal Panel was satisfied Ms Procter had a pre-existing condition in the thoracic spine and that a proportion of the impairment assessed was due to that pre-existing condition.
Ms Procter had been treated for symptoms in the thoracic spine from June 2010. She was referred by her general practitioner, Dr Simon Carter, to Ms Tyack, physiotherapist, of Physio Fit Studio in 2010 for treatment for sciatic pain and aching in the coccyx. While treatment then focused on the sciatic pain, reference was made to a “catching pain in the Tx”. Ms Procter attented physiotherapy on various occasions in 2010, 2011 and 2012. There was then one consultation in January 2013 and then the next attendance was in February 2014. Treatment continued throughout 2015 and 2016. It should be noted that the entries do not just refer to problems in the thoracic region, but include treatment of the hip, sacrum, coccyx, and lumbar spine. In the notes of Physio Fit Studio dated in December 2016, reference was made to Ms Procter reporting numbness in her left thoracic and planning to attend an MRI scan. On examination she had symptoms at T4-T5.
The Appeal Panel noted that at the time of the injury on 22 February 2017, Ms Procter was working in two roles for the respondent and another job with the Gold Coast Primary Health Network. Ms Procter stated that when she returmed to work after the injury, she was unable to return “physically to her previous nursing role” and found it difficult to even perform light duties on a desk job . Although Ms Procter had a pre-existing condition in the thoracic spine, the Appeal Panel considered on balance that it was too difficult even with the available evidence to determine the extent of the deduction to be made.
The Appeal Panel therefore made a deduction pursuant to s 323 (2), and considered that this deduction was appropriate and not at odds with the evidence.
The Appeal Panel did not consider that the temporary aggravation of her condition in the road traffic accident in 2017 was contributing to her current level of impairment.
In summary, the Appeal Panel have assessed 7% WPI of the thoracic spine and 8% WPI of the left upper extremity. These figures combine to produce a total of 14% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 August 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:	W2805/23
Applicant:	Deborah Procter
Respondent:	State of New South Wales (Northern NSW Local Health District)

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 Tim Anderson 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.Thoracic spine	22/2/2017	Chapter 4 Pages 26-33	Chapter 15 Page 388 Table 15.4	7%	1/10th	6%
2.Left upper extremity	22/2/2017	Chapter 2 Pages 13-15	Chapter 16 Pages 476/477/479 Figures 16.40/16.43/16.46	8%	Nil	8%
Total % WPI (the Combined Table values of all sub-totals)					14%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2023] NSWPICMP 700

22 December 2023