State of NSW (Nepean Blue Mountains Local Health District) v Kehal
[2025] NSWPICMP 623
•19 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of NSW (Nepean Blue Mountains Local Health District) v Kehal [2025] NSWPICMP 623 |
| APPELLANT: | Blue Mountains Health District |
| RESPONDENT: | Jashanjot Kehal |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Doron Sher |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 19 August 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the right upper extremity; employer appealed submitting insufficient findings and inadequate reasons for relying on a range of motion (ROM) assessment to assess impairment in circumstances where the Medical Assessor (MA) should have found that the ROM was an unreliable measure; MA is entitled to rely on his clinical findings on the day of examination; Held – reasons given were adequate and the Appeal Panel did not find error; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 April 2025 the employer Blue Mountains 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 March 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 18/10/19
·Body parts/systems referred: Right upper extremity (shoulder). (This is to be combined with 25% WPI from the impairment of cervical spine and scarring which has already been assessed.)
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying permanent impairment as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine and scarring | 18/10/19 | Chap 4 P 24 | P 392 T 150-5 | 25* | 0 | 25 |
| Right upper extremity (shoulder) | 18/10/19 | Chap 2 P 10 | P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03 | 13 | 0 | 13 |
| Total % WPI (the Combined Table values of all sub-totals) | 35 | |||||
The employer appealed.
The appeal concerns only the assessment of whole person impairment (WPI) for the right upper extremity, as the assessment of 25% WPI for the cervical spine and scarring was agreed at 25% WPI.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:
(a) failure to provide adequate reasons for utilising ROM to assess impairment,
(b) failure to adequately consider the inconsistency in ROM assessments and thereby erred in utilising ROM when impairment should have been assessed by way of analogy, and
(c) if he had made a proper assessment he would have found that there was no impairment of the right upper extremity in line with the findings of Dr Gothelf, the independent medical examiner (IME) qualified on behalf of the appellant, who found that any restriction in the range of motion of the right upper extremity (shoulder) was attributable to the cervical spine but that ROM was otherwise unreliable to assess impairment of the right upper extremity.
In summary, the respondent worker Jashanjot Kehal (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied. The Medical Assessor must be read as a whole to determine whether adequate reasoning has been provided.
The Medical Assessor recorded the following history:
“Ms Kehal related that on 18/10/19, she had an unfortunate fall off a wheeled, office chair. She came down hard on the ground, mostly on her right side, hurting her right shoulder complex, her neck and her upper back.
Later it was identified that there was deterioration at the C5/6 articulation and also labral and supraspinatus tears, as well as sub-acromial bursitis.
For her neck, she came under the care of Specialist Spinal Surgeon, Dr Darweesh Al Khawaja. A series of cortisone injections were tried but these did not help. Eventually it was decided that there should be an anterior approach for a cervical spine discectomy and fusion at the C5/6 articulation. This was approved and went ahead on 13/04/22. Unfortunately, Mrs Kehal did not experience a particularly good result from this.
The condition of her right shoulder has been managed conservatively.
· Present treatment:
She takes anti-inflammatories, analgesics and also an antidepressant. She tries to continue with physiotherapy and her own physio-exercises.
· Present symptoms:
Pain in the neck and the right shoulder complex.
Reduced shoulder movement and power.
Occasional pins and needles radiating down the right arm into the middle and ring fingers.
Occasional whiteness of fingers of the right hand. (This does not appear to have been described before. She kindly showed photos from her mobile phone of the right hand, demonstrating this condition, Raynaud’s phenomenon. The photographs were taken in winter.)
· Details of any previous or subsequent accidents, injuries or condition:
There is no history of any previous injury or condition with the neck or the right shoulder complex.
· General health:
This is fairly reasonable. Attention is drawn that in 2015, she had a thyroidectomy.
· Work history including previous work history if relevant:
Mrs Kehal originally comes from India. She came to Australia in 2004. Her education in India was good, with a university Masters degree in Political Science. She also has expertise in computers and health administration.
In Australia, her main job was working at Nepean Hospital as a Food Service Assistant. Although her educational qualifications would place her well above the levels for this, this job just happened to be convenient for the social and family circumstances, particularly looking after their children.
After the injury and before the surgical procedure, she tried to get back to light duties but without a great deal of success. Her position was made redundant in February 2022.
Since then, there has been no further training, nor any further occupation.
· Social activities/ADL:
Mrs Kehal is married. Her husband was with her at this assessment. He is fit and well and works as a Consultant in Information Technology. They have a son of 14 and a daughter of 12, who are fit and well and who are doing particularly well at school.
Mrs Kehal is a non-smoker and non-drinker.
She tries to do some walking and her own physio-exercises. Her hobbies include reading and listening to music. She is able to drive but only for short local distances. She does her best to help around the house, taking on most activities so long as they are not physically arduous. Her husband does most of the shopping.”
The Medical Assessor made the following comment in relation to special investigations:
DATE
AUTHOR
SPECIALITY
COMMENTS
13/03/23
Jashanjot Kehal
Applicant
Personal statement.
20/11/24
Jacqueline Snell
PIC Member
Certificate of Determination. Cervical spine and scarring WPI 25%. This is to be combined with the WPI from the right upper extremity.
19/05/23
Dr Todd Gothelf
Orthopaedic Surgeon
Cervical spine and scarring 25% WPI. Right shoulder movements unreliable to assess whole person impairment.
26/08/24
14/03/24
Dr Drew Dixon
WPI right upper extremity 9%.
The Medical Assessor conducted an examination and recorded his findings as follows:
“Mrs Kehal was of average stature with a height of 1.7m and weight of 82kg. With these parameters, she currently has a body mass index of just over 28. This is considerably overweight. The upper level of healthy BMI is 25. In order to achieve this, she should strictly be no more than 72kg. She was in moderate discomfort.
Cervical Spine. There was ache in the cervical spine, particularly in the lower segments. Movement of the head and neck was grossly reduced. On forward flexion, she could manage two-thirds of the normal range. Lateral rotation to each side was reduced to half the normal range. Lateral flexion to each side was further reduced to one-third of the normal range on each side. Extension was minimal.
Upper Limbs. No significant features were identified with the elbows, wrists, hands or any of the digits, although she did appear to have mild (very mild) lateral epicondylitis on the right side.
Sensation to pinprick was slightly reduced in the right upper limb in the C6 and C7 dermatomal distributions. Reflexes were present and equivalent. Clinically the hands and arms had the same temperature.
She had the following shoulder movements:
MOVEMENT
RIGHT
LEFT
Flexion
80°
180°
Extension
20°
50°
Abduction
40°
180°
Adduction
10°
50°
Internal rotation
20°
80°
External rotation
30°
80°
The Medical Assessor summarised the injury and diagnosis as follows:
“● Summary of injuries and diagnoses:
Mrs Kehal gives a history of falling off a chair at her place of work in mid-October 2019. As a result, she hurt her right shoulder and her neck. The right shoulder has always been managed conservatively, although at this assessment was grossly dysfunctional. Her neck was managed by an anterior approach for a discectomy and fusion at the C5/6 articulation. Technically, this has given her a satisfactory result, although subjectively she does not feel that it has helped much at all.
She continued to have relatively minor neurological findings radiating down the right arm.
· Consistency of presentation
Mrs Kehal’s presentation was consistent. I note that Specialist Orthopaedic Surgeon, Dr Todd Gothelf described inconsistencies in his two reports of 19/05/23 and 26/08/24. As such, he felt that the reduced movement of the right shoulder complex was unreliable and could not be used for impairment assessment. At this assessment, these features did not appear to exist.”
The Medical Assessor explained that in making his assessment he has taken into account the following:
“A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.”
He explained his assessment of 13% for the right upper extremity as follows:
“Right Upper Extremity
AMA 5 REFS
MOVEMENT
RIGHT
% RIGHT
UEI
LEFT
% LEFT
UEI
P 476
F 16-40
Flexion
80°
7
180°
0
Extension
20°
2
50°
0
P 477
F 16-43
Abduction
40°
6
180°
0
Adduction
10°
1
50°
0
P 479
F 16-46
Internal rotation
20°
4
80°
0
External rotation
30°
1
80°
0
Subtotals
21
0
From Page 439, Table 16-03 this converts to 13% WPI.”
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“Specialist Orthopaedic Surgeon, Dr Drew Dixon in his report of 14/03/24 assessed the right upper extremity at 9%. In comparing the range of movement when Dr Dixon saw Mrs Kehal to this assessment, which was conducted nearly a year later, the range of movement of the right shoulder complex is very much less.
Specialist Orthopaedic Surgeon, Dr Todd Gothelf in his two reports of 19/05/23 and 26/08/24 advised that in his view, the right shoulder movements were unreliable to assess whole person impairment. I did not demonstrate these particular findings.”
The appellant complains on appeal that the Medical Assessor did not adequately explain why he based his findings on ROM in circumstances of finding grossly dysfunctional ROM and submitted that the ROM should not have been used as the method of assessment and that an inadequate explanation was given by the Medical Assessor as to why this method was used.
The Medical Assessor is clearly cognisant of the findings of Dr Gothelf the IME qualified on behalf of the appellant. However he has clearly stated that he did not find the alleged unreliability to be present on the day of examination. He has made specific comment on the consistency of the respondent’s workers presentation noting that, in his clinical assessment, as follows:
“Mrs Kehal’s presentation was consistent. I note that Specialist Orthopaedic Surgeon, Dr Todd Gothelf described inconsistencies in his two reports of 19/05/23 and 26/08/24. As such, he felt that the reduced movement of the right shoulder complex was unreliable and could not be used for impairment assessment. At this assessment, these features did not appear to exist.”
The Medical Assessor is entitled to rely on his clinical findings on the day of examination.
The Medical Assessor’s role is an independent one. He is not bound to adopt the clinical findings of the other experts whose medical opinions are in evidence before him. The Medical Assessor has demonstrated that his is very clearly cognisant of the opinion of
Dr Gothelf and has explained why his opinion differs. Under the guidelines the ROM method of assessment is the correct criteria unless it is contraindicated by clinical findings on the day of assessment. The Medical Assessor has clearly stated that he did not find this to be the case here and accordingly he relied on ROM as he was entitled to do. The IME qualified on behalf of the respondent worker Dr Dixon had also relied on ROM as the appropriate method to assess impairment and the Medical Assessor notes that Dr Dixon’s assessment took place a year earlier (March 2024) and that the ROM was more restricted at the time of the Medical Assessor’s examination (March 2025).The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings.
The Medical Assessor is entitled to rely on his examination findings on the day of assessment and in respect of the right upper extremity, there was a reduced range of movement (ROM). It is the clinical findings on the day of examination that prevail noting that the Medical Assessor has taken an adequate history and is cognisant of the other medial opinions and explained why his assessment differs.
The Medical Assessor has had regard to the other opinions before him and explained why his findings differed. The Medical Assessor’s role is to conduct an independent assessment and he is entitled to rely on his clinical findings on the day of examination.
The Medical Assessor has clearly recorded his examination findings as set out above. The Appeal Panel considers that the examination was adequate and covered all requisite aspects.
He has explained adequately why his opinion differs from the other medical opinion that was in evidence before him.
What the Medical Assessor has found in accordance with his examination findings on the day of assessment is that there is a rateable impairment of 13% WPI for the right upper extremity based on ROM. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no error and the Appeal Panel considers that the reasoning given by the Medical Assessor was adequate.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 March 2025 should be confirmed.
0
2
0