State of New South Wales (South Western Sydney Local Health District) v Henrisson
[2024] NSWPICMP 103
•26 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (South Western Sydney Local Health District) v Henrisson [2024] NSWPICMP 103 |
| APPELLANT: | State of New South Wales (South Western Sydney Local Health District) |
| RESPONDENT: | Tracey Henrisson |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Brian Stephenson |
| DATE OF DECISION: | 26 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of three separate injuries; no issue with assessment or apportionment made by Medical Assessor; section 323 deduction; Cole v Wenaline Pty Ltd, Ryder v Sundance Bakehouse, and Fire and Rescue NSW v Clinen referred to; relevance of radiological and surgical findings; one-tenth deduction appropriate – Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 September 2023 the State of New South Wales (South Western Sydney Local Health District) (the Health District) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 September 2023.
· the Health District 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 was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Henrisson was employed by the State of New South Wales (South Western Sydney Local Health District) (the Health District) as a registered nurse. The Medical Assessor was asked to assess Ms Henrisson in respect of three separate dates of injury.
Ms Henrisson suffered an injury to her left shoulder to 9 October 2012 when she fell while on a home visit, jolting her left shoulder. She suffered an injury on 5 December 2013 while working as a triage nurse in an emergency department when she tripped over a bollard rushing to attend to a patient in labour in a car. She injured her left shoulder and cervical spine and suffered a consequential condition in her right shoulder. Ms Henrisson returned to work and on 20 July 2016 aggravated the injuries to her left shoulder and cervical spine while transferring a quadriplegic patient from an ambulance to a bed.
The Medical Assessor assessed each body part referred to him as a whole and then apportioned the impairment to the separate dates of injury. He assessed 16% whole person impairment (WPI) in respect of Ms Henrisson’s cervical spine which he apportioned equally to the injuries in 2013 and 2016. He assessed 21% WPI in respect of Ms Henrisson’s left upper extremity, apportioning 3% to the 2012 injury and 9% to each of the 2013 and 2016 injuries.
The Medical Assessor assessed 23% WPI in respect of Ms Henrisson’s right shoulder condition which is all attributable to the 2013 injury. He assessed 2% for scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI). He did not make a deduction under s 323 of the 1998 Act.
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 Ms Henrisson to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
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 parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, the Health District submitted that the Medical Assessor failed to apply a deduction under s 323 of the 1998 Act in respect of degenerative conditions in
Ms Henrisson’s cervical spine and left and right shoulders, noting that he said he apportioned the impairment instead of making a deduction. The Health District said that the deduction was required in respect of a pre-existing condition , noting that Dr Bodel, qualified for
Ms Henrisson, said that the shoulder replacement surgery would not have been carried out but for the osteoarthritic change. It said that the deductions in respect of each shoulder should be greater than the one-tenth provided for in s 323(2).In reply, and in submissions prepared by Mr Andrew Parker of counsel, Ms Henrisson noted that no appeal was raised in respect of the Medical Assessor’s actual assessments and submitted the Medical Assessor properly addressed causation, assessing the contribution of each of three injuries and finding that there was no pre-existing condition so that no s 323 deduction was appropriate. Ms Henrisson said that degeneration was a radiological finding not a diagnosis, referring to Fire and Rescue NSW v Clinen.[1]
[1] [2013] NSWSC 629.
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 Queanbeyan Racing Club Ltd v Burton[2] 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.
[2] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[3] 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.
[3] [2006] NSWCA 284.
The MAC
The Medical Assessor recorded that Ms Henrisson had no problems with her neck or upper extremities prior to 9 October 2012. He set out the circumstances of each of the injuries and the treatment Ms Henrisson underwent including a left shoulder replacement on
10 October 2016, decompression surgery to her cervical spine on 12 February 2018 and right shoulder surgery in the form of a decompression and excision of the distal clavicle on
5 August 2019. Ms Henrisson underwent a right shoulder replacement on 3 December 2020.The Medical Assessor summarised the radiology, beginning in 2014 with a CT scan of Ms Henrisson’s cervical spine which was reported as normal and noting, among other reports, an MRI scan of her cervical spine, dated 14 April 2016, which showed degenerative disc disease throughout the cervical spine, particularly at C5/6 and C6/7. Arthritic changes were noted on MRI of the left shoulder on 25 August 2016. An MRI scan of the left shoulder showed acromioclavicular arthritis on 19 February 2017. Cervical spine scans on 14 February 2017 and 24 June 2017 showed degenerative disc disease. An MRI scan of the right shoulder on 3 July 2018 confirmed acromioclavicular arthritis.
Summarising the injuries and diagnoses, the Medical Assessor said:
“As a result of a number of incidents during the course of her work Mrs Henrisson has sustained injuries to both shoulders and the cervical spine.
With regard to the cervical spine she underwent surgery in the form of a decompressive procedure and has on-going multifactorial neck pain but there is no evidence of radiculopathy.
With regard to the shoulders, she sustained injuries to the rotator cuff on the background of some degenerative changes within the shoulder joints and she subsequently underwent a number of surgical procedures culminating in total shoulder replacements on the right and the left.”
The Medical Assessor set out his assessment of WPI saying:
“For the injury to the cervical spine I have estimated 16% WPI.
I have apportioned equally between the two referred dates of injury, being 5 December 2013 and 20 July 2016 at 8% WPI each.
For the left upper extremity I have estimated 21% WPI. I have apportioned between the three dates of injury. The injury on 9 October 2012 was the more trivial of the incidents and to this I have estimated 3% WPI. For the injury on 5 December 2013 and 20 July 2016 I have apportioned the remaining 18% WPI equally between the two referred dates of injury at 9% WPI each.
For the right upper extremity the referred date of injury is 5 December 2013. I have estimated 23% WPI wholly to this referred date.
For scarring I have estimated 2% WPI and this is attributed to the injury sustained on 5 December 2013.
Thus, for the injury on 9 October 2012 for the left upper extremity I have estimated 3% WPI.
For the injuries on 5 December 2013 to the left upper extremity, the right upper extremity, the cervical spine and scarring I have estimated 37% WPI.
For the injuries on 20 July 2016 to the left upper extremity and the cervical spine I have estimated 16% WPI.”
The Medical Assessor set out his calculations. He commented on other reports in the file:
“Dr R Breit, Orthopaedic Surgeon, supplied medico-legal reports dated 18 December 2017, 19 June 2020, 21 September 2020 and 25 November 2022. My clinical findings are basically the same as those of Dr Breit. My assessment of impairment is basically the same but Dr Breit has apportioned differently and subsequently this is the difference in my final assessment and that of Dr Breit.
Dr J Bodel, Orthopaedic Surgeon, supplied a medico-legal report dated 1 February 2022. Dr Bodel’s findings and his assessment of impairment are the same as mine but Dr Bodel has only been given the one referred date of injury, being 5 December 2013. He has subsequently made deductions for pre-existing conditions, whereas I have apportioned between the various dates of injury and the end result of my assessment is considerably different to that of Dr Bodel as far as the different dates of injury are concerned.”
Specifically with respect to s 323, the Medical Assessor said:
“No deduction has been made for the pre-existing conditions but I have apportioned between the referred dates of injury.”
The only grounds of appeal relate to the s 323 deduction. No ground was raised with respect to the way the Medical Assessor assessed impairment nor to the apportionment he made. We have confined our consideration to the application of s 323.
Section 323
The Medical Assessor said that Ms Henrisson suffered injuries to her shoulders on the background of degenerative changes. It was therefore necessary for him to consider if a s 323 deduction was appropriate. He said that no deduction was made for the pre-existing conditions but offered no further explanation. The question of a deduction needed to be considered separately from the apportionment between the three injuries because, on the evidence, it was relevant to a condition which pre-dated all of them.
Ms Henrisson’s evidence is that she was asymptomatic before the injuries. The radiology and the reports of her treating doctors describing their clinical examinations or surgical findings provide the basis to determine if a s 323 deduction is warranted. On the basis of our consideration of that evidence, we believe that a deduction was appropriate in respect of the pre-existing degeneration in Ms Henrisson’s shoulders.
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
In Cole v Wenaline Pty Ltd[4] (Cole) Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”
[4] [2010] NSWSC 78 at [29] and [38].
In Ryder v Sundance Bakehouse[5] (Ryder) Campbell J said:
“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.”
[5] [2015] NSWSC 526 at [45].
Both of those decisions set out the principles we must consider in applying s 323.
Ms Henrisson’s submissions referred to Clinen, a claim by a worker who was employed in employment to the nature of which the disease injury of skin cancer may be due. He commenced employment in 1955 as a young man and retired in 1988. The dispute was whether exposure to sunlight before the period of his employment was a pre-existing condition. A medical appeal panel said that there was no basis to make a s 323 deduction because there was no evidence of any condition nor abnormality before the worker commenced employment. Campbell J said:
“The analysis of Giles JA in Smart, to which I have referred, supports a legal distinction between a medical condition and the circumstance giving rise to it. The meaning of ‘condition’ in ordinary language may extend to include a prerequisite to something else. The worker's exposure to sunlight in his youth, in that broad sense, is a pre-existing condition. But the word ‘condition’ in the present statutory context, in my judgment, has a more limited meaning. In the context of legal causation, as with the meaning of the phrase ‘due to’, one may refer to any one of the necessary ‘conditions’ giving rise to a consequence as a cause, or prerequisite, of it. As a matter of causation, the worker's skin cancer is due to his exposure to sunlight, including during his youth before the commencement of his employment with the employer. But causation is not the presently relevant context.
The context here is provided by s 323 and arises from the juxtaposition of words ‘previous injury’, with ‘pre-existing condition or abnormality’. The natural meaning in that restricted context of ‘condition’ is ‘medical or like condition’ in the sense of a diagnosable, or established, clinical entity c.f. Simeon Wines Ltd v. Bobos [2004] NSWCA 342 at [17] per Sheller JA, Santow JA and Young CJ in Eq. (as he then was) agreeing. This, in effect, is what the medical appeal panel decided in the portion of its reasons set out above at [15]. This conclusion involves no jurisdictional error in the sense of either identifying a wrong issue, or posing the wrong question; or error of law on the face of the record, by misapplying the law.”
Ms Henrisson’s case is different to Clinen primarily because of the appearances on the scans soon after the 2012 and 2013 injuries. Ms Henrisson submitted that the Medical Assessor referred to degeneration and said that is a common finding and not a diagnosis. Degeneration is, in fact, a generic description of a number of diagnoses. The scans and comments in the medical reports about Ms Henrisson are more specific and show that the conditions in her left and right shoulders were contributed to by the pre-existing osteoarthritis.
We are satisfied on the basis of our review of the evidence set out below that Ms Henrisson did suffer pre-existing osteoarthritic changes in her left and right shoulders which was aggravated by each of the three injuries. Based on the observations on radiology and on examination by clinicians of the arthritic changes in her left shoulder soon after the 2012 and 2013 injuries and her right shoulder after the development of the consequential condition, it is the opinion of the medical members of this Panel that the osteoarthritis of the glenohumeral joint of each shoulder was pre-existing. It is likely that it would have been observed on scans if any had been taken before the injuries.
Left shoulder
There is little information in the file regarding the 2012 injury. Ms Henrisson saw her general practitioner on 10 October 2012 and said that she had lost her footing, whilst walking downstairs, doing a home visit, rolling her right ankle and jolting her left shoulder. She returned to work after a period of rest and physiotherapy, and there is nothing in the notes to suggest that any scans were undertaken.
Ms Henrisson saw her general practitioner on 7 December 2013 and provided a history of the injury a few days before when she ran to a lady in labour outside the hospital and slipped and fell hurting, among other things, her left shoulder. The doctor queried whether an MRI scan would be required. On 6 January 2014, Dr Nguyen noted that an MRI scan showed osteoarthritis of the acromioclavicular joint, bursitis and a posterior labral tear. Ms Henrisson was referred to Dr Nabavi.
The report of the MRI scan appears in the general practitioner’s notes[6] and says:
“There is minor lateral downsloping of the acromion. There are osteoarthritic changes at the acromioclavicular joint, with bony hypertrophy and osteophytes directed inferiorly and these have resulted in some impingement anatomy. No subacromial spur is seen. There is mild thickening and oedema of the subacromial bursal complex in keeping with bursitis. The supraspinatus shows minimal tendinosis and is intact. The infraspinatus is moderately tendinotic and there is a small tear along its anterior margin at the insertion measuring 3mm with an articular surface rim rent type appearance. There is no full thickness component. The teres minor and subscapularis tendons are intact.
The long head of the biceps tendon is normally located and intact. There is chondral wear involving the glenoid centered inferiorly and posteriorly where there is extension down to bone with multiple large subchondral cysts present. There is a tear of the labrum posteriorly at its mid portion without significant displacement.
CONCLUSION: Osteoarthritic changes involving the acromioclavicular joint resulting in some impingement anatomy. Mild subacromial bursitis. Infraspinatus tendinosis with a small articular surface rim rent type tear. Background osteoarthritis involving the glenoid with large subchondral cyst formation. Posterior labral tear.”
[6] Application to Resolve a Dispute (ARD) p 159 (numbering in top right of page).
On 10 January 2014 Dr Nabavi noted that the MRI scan demonstrated evidence of mild impingement, but predominantly glenohumeral joint osteoarthritis. He recommended an injection of steroids and local anaesthetic. On 6 May 2014, Dr Nabavi said that Ms Henrisson had had some moderate response to the subacromial injection, but continue to be stiff. He did not consider she would make a full recovery, and that gentle, debridement of the glenohumeral joint, a bursectomy and injection of platelet rich plasma in her shoulder could be required.
On the following day, Dr Nguyen recorded that Dr Nabavi had told Ms Henrisson that her condition was mainly degenerative.
Ms Henrisson saw Dr Jones who reported on 26 June 2014 who sought approval for an arthroscopic capsular release and said:
“She a MRI scan which shows glenohumeral arthritis with an intact, rotator calf. Her gleno-humoral osteoarthritis is pre-existing, but asymptomatic. Her shoulder has been aggravated by her recent trauma with a capsular picture currently.”
A further MRI scan dated 23 June 2015[7] was reported by Dr Lee as showing:
“1. Stable appearances of the glenohumeral osteoarthritis. Grade IV chondral loss overlying the central to posterior glenoid with prominent subchondral cysts. Milder chondral thinning overlying the apposing humeral head.
2. Mild subacromial-subdeltoid bursitis.
3 Supraspinatus and infraspinatus tendinopathy. Stable appearances of the small partial thickness rim rent tear of the infraspinatus tendon.
4. Acromioclavicular arthropathy.
5. Tear of the posterosuperior/posterior labrum, stable in appearance and likely degenerative.”
[7] ARD p 184.
Dr Young performed a left shoulder replacement on 10 October 2016. The purpose of the surgery was to replace the osteoarthritic joint observed on the radiology. In his report to Ms Henrisson’s general practitioner dated 5 September 2016 in which he proposed that treatment Dr Young said:
“A recent MRI scan has been performed and demonstrates marked arthritis of the shoulder. The rotator cuff is intact.
An MRI scan from after the injury was reviewed and demonstrated some cystic change of the glenoid. Certainly there has been marked progression of shoulder arthritis since the time of the injury.
…Tracey presents with long standing pain that has not responded to the arthroscopic surgery. In the setting of a frozen shoulder, one would have expected motion to have recovered by this stage regardless of surgery. I suspect Tracey's pain and stiffness relates to the arthritic change.”
The surgery was undertaken on 10 October 2016 and the indication set out in the operation report is “severe primary osteoarthritis.”
Ms Henrisson was in her mid-fifties at the time of the first and second injuries. The osteoarthritic changes revealed by the January 2014 and June MRI scans were significant and would have pre-dated the 2012 and 2013 injuries. The Medical Assessor did not indicate that he had reviewed those reports or that of Drs Jones and Young. We agree that the radiological reports support the existence of osteoarthritis in Ms Henrisson’s glenohumeral joint before the 2012 and 2013 injuries, which was aggravated and which then progressed as a result of all three injuries.
The Medical Assessor acknowledged that by describing the injury as a rotator cuff injury on the background of some degenerative changes within the shoulder joints. The osteoarthritic changes in the glenohumeral joint were the indicator for shoulder replacement surgery. Those changes warranted a deduction under s 323.
Right shoulder
The evidence also shows that it was appropriate to make a deduction from the assessment of Ms Henrisson’s right shoulder. Liverpool Hospital accepts that she suffered a consequential condition in her right shoulder. An MRI scan dated 3 July 2018 was reported by Dr Cheema as showing advanced AC joint degenerative change, mild to moderate subacromial bursitis and mild rotator cuff tendinopathy with no cuff tear.
On 14 December 2018 Dr Young said:
“An MRI scan of the right shoulder has been performed and demonstrates AC joint arthritis. There is tendinopathy to the rotator cuff and perhaps some minor partial thickness tear but certainly no significant or full thickness tear. There is subchondral bone oedema at the glenoid and early cartilage wear (I note that this has not been reported by the radiologist).
I am uncertain as to the cause of Tracey's right shoulder pain. It may be due to the rotator cuff tendinopathy and associated impingement syndrome with a possible contribution from the AC joint pathology. Also it is quite likely particularly given Tracey's left shoulder pathology that she has early arthritis that is contributing to her right shoulder pain.”
That comment reveals two diagnoses – rotator cuff tendinopathy and impingement likely resulting from the consequential condition and arthritis in the glenohumeral joint. Dr Young recommended cortisone injections. On 21 June 2019 he said:
“Given her examination and MRI scan findings, I suspect she has a combination of pain coming from the early shoulder joint arthritis, but also the rotator cuff tendinopathy and associated bursitis + AC joint arthritis. I performed a further serial cortisone injections today of the AC joint, followed by the subacromial space. Each of these injections resulted in some improvement in Tracey's pain symptoms, suggesting that there is at least some degree of contribution of her symptoms from both the AC joint arthritis, but also the subacromial bursitis.”
On 5 August 2019 Dr Young undertook right an arthroscopic, subacromial decompression, and distal clavicle excision. He said there was a subacromial impingement lesion with minor partial supraspinatus tear and AC joint arthritis. There was early shoulder joint arthritis. A reference to the shoulder joint in this context is a reference to the glenohumeral joint.
On 14 February 2020, Dr Young said that Ms Henrisson’s ongoing right shoulder pain symptoms would be attributed to the early osteoarthritis seen at the time of surgery with some possible contribution of pain from referred cervical spine pathology.
Later in 2020 Ms Henrisson saw Dr Duckworth for a second opinion. He noted that X-rays of her right shoulder showed moderate osteoarthritic change consistent with an MRI scan two years earlier. He considered that she had “quite an arthritic shoulder”. Dr Duckworth performed a right shoulder replacement on 3 December 2020.
Those reports confirm that Ms Henrisson also had degenerative osteoarthritis in her right shoulder which pre-dated the development of her consequential condition.
Cervical spine
A CT scan of Ms Henrisson’s cervical spine was performed on 5 February 2014 was normal with “no significant central canal, lateral recess or neuroforaminal narrowing. No protrusions or extrusions”.
An MRI scan of Ms Henrisson’s cervical spine dated 26 August 2015 showed only a minimal posterior disc bulge at C6/7 and no evidence of significant central canal or exit foraminal stenosis and no nerve root compression.
Dr Young referred Ms Henrisson to Dr Gray in 2017. On 20 October 2017 he commented on MRI scan taken on 24 June 2017, which he said showed moderate to severe left C6/C7 foraminal stenosis impinging on the exiting C7 nerve root. He considered that a left C6/C7 laminioforaminotomy was appropriate. The surgery was carried out on 10 February 2018.
Ms Henrisson had a normal CT scan in 2014 and later scans showed the development of degenerative changes, which we consider was contributed to by the 2013 and 2016 injuries. The Medical Assessor was correct to decline to make a s 323 deduction from the assessments of Ms Henrisson’s neck impairment.
Independent medical examiners
Dr Bodel saw Ms Henrisson at the request of her solicitors and reported on 1 February 2022. He had a history of the injuries in 2013, and 2016. He considered that the injury was a torn rotator cuff in both shoulders, and the aggravation of underlying disease in the shoulders, and also in the cervical spine. He said:
“There is also evidence that there is degenerative change in both shoulders and the neck and that the injury at work has caused the aggravation, acceleration, exacerbation and deterioration of that disease process in those areas. That work event and work in general is the main contributing factor in that case.”
When assessing permanent impairment, Dr Bodel said:
“Clearly there is degenerative change present in the neck and both shoulders. This is contributing to the overall level of impairment in the neck and in both shoulders but particularly in the shoulders, because the shoulder replacement surgery would not have been done, had it not been for the osteoarthritic change.
The medical evidence does not quantify the pre-existing component and therefore it is appropriate in my view, to make a one-tenth deduction in accordance with Section 323 in this circumstance.”
Dr Breit has reported to Liverpool Hospital’s insurer in several reports. On
18 December 2017 he obtained a history of the 2013 and 2016 injuries. He noted that the 2014 CT scan of Ms Henrisson’s cervical spine was normal and that the August 2015 scan showed a posterior disc bulge at C6/7. He also considered that the degenerative change was the underlying reason for the shoulder replacement but that employment was responsible for a permanent aggravation of the shoulder condition.In his report dated 19 June 2020 Dr Breit said:
“Once again, there is significant pre-existing degenerative disease with the MRI from 25/08/2016 showing significant arthritis, and you will note that the operation report by Dr Young reports that the diagnosis is ‘primary arthritis’. That degenerative change has been very longstanding, being the reason why she required shoulder replacement. That was not related directly to her employment. It has, therefore, been a significant contributor to her impairment, but only the 1/10 rule may apply, leading to 20% WPI.”
In subsequent reports dated 30 December 2022, Dr Breit provided further assessments and apportionments. Because our focus is on the Medical Assessor’s failure to make a deduction, we do not need to consider those subsequent assessments. What is important about this review of the medical evidence is the agreement that Ms Henrisson suffered degenerative change in her left and right shoulder before the injuries at work.
Dr Breit made a one-tenth deduction under s 323 in respect of Ms Henrisson’s cervical spine. We consider that neither Dr Bodel nor Dr Breit had appropriate regard to the normal CT scan in 2014 coupled with the history that Ms Henrisson was asymptomatic.
Re-assessment
We are satisfied on the basis of our review of the evidence that Ms Henrisson did suffer pre-existing osteoarthritic changes in her left and right shoulders which was aggravated by each of the three injuries. To quote Campbell J in Ryder, the pre-existing change did make a difference to the consequences of the injury and the impairment. The osteoarthritic change in Ms Henrisson’s glenohumeral joints contributed to the need for shoulder replacement surgery.
However, it is important to take into account that Ms Henrisson was asymptomatic before the injuries. Without the injuries Ms Henrisson may have remained asymptomatic for an extended period and may not have required shoulder replacement surgery. It is therefore difficult to determine the extent of the contribution so, in accordance with a 323(2), the medical members of the Panel consider, applying their medical judgment, knowledge and experience, that it is appropriate to make a deduction of one tenth from the assessment of shoulder impairment in respect of each injury. It is not appropriate to make a deduction in respect of Ms Henrisson’s cervical spine because of the normal X-ray appearances in 2014.
No point was taken with respect to the Medical Assessor’s assessment of three separate injuries or as to his apportionment. We have therefore prepared three separate certificates as he did.
The assessments in respect of the injury on 9 October 2012 is therefore 3% WPI in respect of the left upper extremity less 1/10th is, after rounding 3%.
For the injury on 5 December 2013 the total assessment is 34% WPI comprised of:
(a) left upper extremity – 9% WPI less 1/10th is 8%;
(b) right upper extremity – 23% WPI less 1/10th is 21%;
(c) cervical spine – 8% WPI, and
(d) scarring – 2%.
For the injury on 20 July 2016 the total assessment is 15% WPI comprised of:
(a) left upper extremity – 9% WPI less 1/10th is 8%, and
(b) cervical spine – 8% WPI.
For these reasons, we have determined that the MAC issued on 1 September 2023 should be revoked, and a new MAC should be issued. The new certificates are attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4979/23 |
Applicant: | Tracey Henrisson |
Respondent: | State of New South Wales (South Western Sydney 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 Greg McGroder 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) |
| Left upper extremity | 9.10.2012 | Chapter 2 pp 13-15 | Chapter 16, pp 476,477,479 Figures 16.40, 16.43, 16.46 | 3% | 1/10th | 3% |
| Total % WPI (the Combined Table values of all sub-totals) | 3% | |||||
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4979/23 |
Applicant: | Tracey Henrisson |
Respondent: | State of New South Wales (South Western Sydney 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 Greg McGroder 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) |
| Left upper extremity | 5.12.2013 | Chapter 2 | Chapter 16, pp 476,477,479 Figures 16.40, 16.43, 16.46 | 9% | 1/10th | 8% |
| Right upper extremity | 5.12.2013 | Chapter 2 pp13-15 | Chapter 16, pp 476,477,479 Figures 16.40, 16.43, 16.46 | 23% | 1/10th | 21% |
| Cervical spine | 5.12.2013 | Chapter 4 pp26-33 | Chapter 15, p 392, Table 15.5 | 8% | 0 | 8% |
| Scarring | 5.12.2013 | Chapter 14 TEMSKI | N/A | 2% | 0 | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 34% | |||||
Catherine McDonald
Member
Drew Dixon
Medical Assessor
Brian Stephenson
Medical Assessor
26 February 2024
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4979/23 |
Applicant: | Tracey Henrisson |
Respondent: | State of New South Wales (South Western Sydney 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 Greg McGroder 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) |
| Left upper extremity | 20.7.2016 | Chapter 2 | Chapter 16, pp 476,477,479 Figures 16.40, 16.43, 16.46 | 9% | 1/10th | 8% |
| Cervical spine | 20.7.2016 | Chapter 4 pp26-33 | Chapter 15, p 392, Table 15.5 | 8% | 0 | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
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0