Stone v Airlite Windows Pty Ltd
[2022] NSWPICMP 435
•28 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Stone v Airlite Windows Pty Ltd & Ors [2022] NSWPICMP 435 |
| APPELLANT: | Chris Stone |
| FIRST RESPONDENT: | Airlite Windows Pty Ltd |
SECOND RESPONDENT: | Jeld-Wen Australia |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 28 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Left shoulder injury; left shoulder injured in 2000 which resulted in left shoulder replacement surgery; left shoulder injured again in 2016; no complaint on appeal about the assessment of 30% loss of efficient use of the left arm at or above the elbow for the 2000 injury; 23% overall whole person impairment (WPI) assessed for the left upper extremity with a deduction of 20/23 leaving an assessment of 3% whole person impairment as a result of the 2016 injury; the complaint on appeal concerned the deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) of 20/23 made by the Medical Assessor (MA) to account for the 2000 injury; the Appeal Panel considers that the assessment by the MA of a deduction of 20/23 such that 20% WPI was apportioned to the injury on 24 April 2000 and 3% WPI was apportioned to the injury deemed to have occurred on 16 November 2016 was open to the MA in the exercise of his clinical judgment and on the available evidence; it was open to the MA in the exercise of his clinical judgment taking into account the shoulder replacement surgery which resulted from the first injury and the history of residual pain and stiffness following that surgery; the history the MA took of residual pain and stiffness following the surgery was consistent with the available evidence and indeed the appellant’s own evidence that prior to his duties changing in 2016 he could manage the ongoing pain and discomfort in his left shoulder that he had after the shoulder replacement surgery because his work was light and he could delegate; having due regard to all of the available evidence, the MA has made a clinical judgment in assessing the extent of the impairment that had to be effectively apportioned to the 2000 injury; MA’s reasoning was adequately explained; Held – the Appeal Panel can discern no error in the MA’s approach to the deductible proportion under section 323 of the 1998 Act in the circumstances of this case; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 May 2022 Mr Chris Stone (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 21 April 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested a re-examination. As a result of that preliminary review, the Appeal Panel determined that the worker need not undergo a further medical examination because the Appeal Panel, for the reasons set out below, did not find error and absent a finding of error, the Appeal Panel has no power to require a re-examination: 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 MA for the original medical assessment and has taken them into account in making this determination.
The MAC
The parts of the medical certificate given by the MA 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 to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Injury against the first Respondent: Airlite Windows Pty Ltd
Date of Injury: 24 April 2000
Body part/s referred: Left arm at or above the elbow (left shoulder)
Severe bodily disfigurement
Method of assessment: Table of disabilities
Injury against the second Respondent: Jeld-Wen Australia
Date of Injury: 22 November 2016 - deemed
Body part/s referred: Left upper extremity (left shoulder), right upper extremity (right shoulder), Scarring
Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying in respect of the injuries on 24 April 2000 and 22 November 2016 (deemed) respectively as follows:
Body Part
(describe the body part as per Table of Disabilities)
e.g. right leg at or above the knee
Date of injury
Total amount of permanent % loss of efficient use or impairment
Proportion of permanent impairment due to pre-existing injury, abnormality or condition
Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in
column 4.)Left arm at or above the elbow (left shoulder)
24 April 2000
30%
Nil
30%
Severe bodily disfigurement
1%
Nil
1%
Body Part or system
Date of Injury
Chapter,
page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% 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)
1. Left upper extremity (left shoulder)
22 November 2016 - deemed
Chapter 2
P10-12
Chapter 16
P433-521
23%
20/23
3%
2. Right upper extremity (right shoulder)
Chapter 2
P10-12
Chapter 16
P433-521
10%
Nil
10%
3. Scarring
T14.1 P74
0%
N/A
0%
Total % WPI (the Combined Table values of all sub-totals)
13% WPI
There is no complaint on appeal about the assessment under the Table of Disabilities as a result of injury on 24 April 2000.
The complaint on appeal is by the worker in respect of the assessment as a result of the injury deemed to have occurred in the employment of Jeld Wen Australia (the second respondent) on 22 November 2016. The first respondent Airlite Windows Pty Ltd makes no argument in this appeal.
The appeal is limited to the left upper extremity (left shoulder) assessment. There is no complaint on appeal about the assessment of the overall level of impairment of 23% whole person impairment (WPI). The complaint on appeal is limited to the deductible proportion applied by the MA under s 323 in respect of the previous injury to the left shoulder on 24 April 2000.
In summary, the appellant submitted that the MA has erred as follows:
· The deduction exceeds the lawful limits of the exercise of the s 323 discretion, is contrary to the well-established authorities relating to that discretion, and is by way of that excess, a demonstrable error.
· The MA’s factual findings are not sufficient to properly distinguish between pre and post 2016 impairment of the left shoulder, the reasoning is inadequate and does not permit proper analysis of the line of reasoning that concludes with the MA’s deduction.
In summary, the second respondent submitted that the MA did not err and accordingly the MAC should be confirmed.
The MA took a history of the injuries and their sequelae as follows:
“Mr Stone was employed by Airlite Windows for 20 years working full time as a car and wagon builder. He considered his work to be labour intensive. On 24 April 2000, he was working on bi-fold doors when a unit fell out of its track and struck him in the left shoulder. He felt immediate pain. He had physiotherapy and pain medication and he returned to working in light duties. On 8 September 2005, he underwent a left shoulder replacement surgery under the care of Dr David Duckworth at Baulkham Hills Hospital. He recovered reasonably well from his surgery and suffered minimal pain in his left shoulder between 2005 and 2016. During that period of time, Mr Stone was working as a team leader; he was able to direct other employees to do the labour intensive and manual work. His left shoulder symptoms were manageable. Following a change of duties in late 2016 to more hand on work, his left shoulder pain increased, and he started to have pain at the right shoulder. On 20 July 2018, he underwent a right shoulder rotator cuff repair surgery under the care of Dr Gavin Soo at Norwest Private Hospital. His bilateral shoulder symptoms of pain and stiffness increased with time affecting many aspects of his daily activities.
· Present treatment: Mr Stone is at present having no specific treatment and he does self-directed exercises at home. Mr Stone now takes for Panadol tablet at night for sleep.
· Present symptoms: Mr Stone complains of pain mainly at night at the left shoulder when he is lying on it. He has stiffness at the left shoulder particularly on moving the left arm above shoulder height. He has similar symptoms on the right shoulder but with more stiffness and less strength.
· Details of any previous or subsequent accidents, injuries or condition: Mr Stone had no prior injury before the April 2000 accident at work.
· General health: Mr Stone had radiotherapy and injections for prostate cancer diagnosed last year. Otherwise, he rates his general health as good with no chronic illness or routine medication.
· Work history including previous work history if relevant: Mr Stone qualified as a carpenter at aged 20. He worked as a carpenter all his working life. He retired from work at age 64 after his right shoulder operation.
Social activities/ADL: Mr Stone lives with his partner. Mr Stone has restrictions in many aspects of his daily activities from his bilateral shoulder impairments.”
The MA recorded his findings on examination, which are not the subject of complaint on appeal, and the appellant accepts the range of motin (ROM)assessment by the MA. The MA recorded his findings as follows:
“Mr Stone appeared well in no apparent physical distress. He sat comfortably throughout the interview. He was informed at the time of examination not to engage in any manoeuvre beyond what he could tolerate, or which might cause harm or injury. His height was 157cm and he weighed 72 kg.
Shoulders
The shoulders were positioned asymmetrically with the left shoulder lower than the right.
There was no unilateral atrophy. On palpation, there was tenderness at the front of the left shoulder. The goniometric measurements obtained in this examination are tabled below.
| Shoulder (AMA5, F16-40 to 46) | Right o | UEI% | Left o | UEI% |
| Flexion | 105 | 5 | 90 | 6 |
| Extension | 20 | 2 | 40 | 1 |
| Adduction | 10 | 1 | 20 | 1 |
| Abduction | 85 | 4.5 | 70 | 5 |
| Int. Rotation | 40 | 3 | 20 | 4 |
| Ext. Rotation | 50 | 1 | 40 | 1 |
| SUM UEI | Right | 17% UEI | Left | 18% UEI |
| Conversion to WPI (AMA5 T16-3) | Right | 10% WPI | Left | 11% WPI |
Scarring - There were minor portsite scars at the right shoulder. These scars were well healed and barely visible. There was a 12cm faint scar at the left deltopectoral groove in an area of skin covered in tattoo. It was well healed. They have had excellent colour match with surrounding skin. They were not visible in normal clothes. Mr Stone could locate the scar easily and he was not particularly conscious of the scars. Scarring was rated TEMSKI 0% WPI as uncomplicated scars for standard surgical procedures do not of themselves rate as impairment (SIRA4 s14.6).”
The MA had regard to the special investigations as follows:
“14/7/2005 MRI left shoulder - Marked degenerative changes of the left glenohumeral joint , moderate sized glenohumeral joint effusion and synovitis, markedly degenerative and largely absent glenoid Labrum secondary to the degenerative changes.
8/10/2010 Right Shoulder x-ray and ultrasound – There is acromioclavicular arthritis bursitis, tendinosis, and a full thickness cuff tear.
20/12/2017 Right Shoulder x-ray – there is lateral down sloping early glenohumeral arthritis and the ultrasound showing a subluxed long head of biceps as well as rotator cuff tear.
22/11/2017 left shoulder ultrasound showed left TSR. Supraspinatus tendon remains intact, although attenuated; full-thickness subscapularis tearing involving the superior 8mm and LHB tenosynovitis.
20/12/2017 right shoulder X-rays and ultrasound showed medially subluxed biceps long head tendon. Longitudinal split in the biceps tendon, articular surface partial tear subscapularis tendon, full thickness tear in the supraspinatus tendon anterior to mid third.”
The MA summarised the injuries and diagnosis as follows:
“summary of injuries and diagnoses:
Mr Stone is a 68-year-old man who sustained soft tissue injury at left shoulder at work on 24 April 2000. He had a left shoulder total replacement with some residue symptoms pain and stiffness. He also developed symptoms at the right shoulder in November 2016 and had a right shoulder rotator cuff repair surgery with residue symptoms of pain and stiffness.
· consistency of presentation
There is no inconsistency found in this examination.”
The MA explained that his assessment of impairment was “based on the thorough consideration of historical details, the continuing complaints, my findings on clinical examination, review of the investigatory evidence and the attached medical documentation.”
The MA explained his assessment of whole person impairment as follows:
“For the injury dated 24 April 2000, I rated the total amount of permanent % loss of efficient use or impairment of left arm at or above the elbow (left shoulder) at 30% permanent impairment with not apportionment. I have rated the severe bodily disfigurement at 1% permanent impairment.
For the injury dated 22 November 2016 – deemed, I have rated the left shoulder at 23% WPI reduced to 3% WPI after apportionment to the pre-existing injury dated 24 April 2000 for the following reasons: Mr Stone had injury to the left shoulder and he had a total left shoulder replacement attracting 24% UEI (AMA5 16-27). This is combined with range of motion impairment of 18% UEI (AMA5 Section 16.7b). The total left shoulder impairment = Combine 24% and 18% = 38% UEI equivalent to 23% WPI. The left shoulder was further aggravated at work after the 22 November 2016 injury. I have apportioned 20% WPI to the injury dated on 24 April 2000 and 3% WPI to the 22 November 2016 aggravation. I have rated the right shoulder impairment on 10% WPI based on the goniometric measurements on the day. Scarring was rated TEMSKI 0% WPI as uncomplicated scars for standard surgical procedures do not of themselves rate as impairment (SIRA4 s14.6).”The MA had regard to the other medical opinions that were before him as follows:
“5 December 2017 Dr Charles New rated a 25% loss of efficient use of his left shoulder and he also rated the left shoulder at 9% WPI based on range of motion data. On 14/10/2019 Dr Charles New rated 30% Loss of Efficient Use of left upper limb at or above the elbow, noting the total shoulder replacement. In relation to his injury of 22nd November 2016, he rated the right shoulder at 24% WPI based on implant total shoulder replacement. He rated the left shoulder at 22% WPI based on range of motion restrictions. He also rated scarring at 3% WPI.
29 June 2020 Dr Richard Powell rated the left shoulder according to the Table of Disabilities at 40%. He apportioned 35% to the original injury and 5% due to the nature and conditions of his employment in the period 2006 to 2018, with the nominal date of injury of 22 November 2016. He rated 8% WPI for the right shoulder. He rated 0% WPI for scarring at the same time.
10 May 2021 Dr Robert Breit rated 40% permanent impairment (Table of Disabilities) of the left upper extremity without a deductible component. The doctor rated the right shoulder at 5% permanent impairment (Table of Disabilities). He rated the right shoulder at 11% WPI reduced to 9% WPI after 1/5 apportionment for the impairment associated with the April 2000 events. Scarring to the right shoulder 0% WPI for invisible scar and the left shoulder is not covered under the TEMSKI scale. For the injury in April 2000, he rated 1% bodily disfigurement (Table of Disabilities).
I agree with Dr Charles New in rating the left shoulder at 30% permanent impairment according to the Table of Disabilities. I agreed with Dr Breit in rating the scarring to the right shoulder 0% WPI for invisible scar and the left shoulder is not covered under the TEMSKI scale.“
The MA gave reasons for the deductible component as follows:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Left shoulder total shoulder replacement in injury sustained on 24 April 2000.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(ii)The pre-existing impairment contributed the greater proportion to his current impairment to his left shoulder
c. Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 20/23 for the following reasons:
The left shoulder had a previous total shoulder replacement with residue pain and stiffness.”
A deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed. Here the deduction is in respect of a prior injury as a result of which the appellant came to a left shoulder replacement.
The appellant concedes a deduction must be made and that the deduction must take full account of the shoulder replacement that was undertaken as a result of the 2000 injury. This is a concession that the deduction would exceed one-tenth.
The MA deducted 20/23 for the reasons he gave above. The appellant complains on appeal that the deduction is excessive and the reasoning is inadequate. The appellant does not submit what the deduction should be but that the appellant should be re-examined for this to be determined. The independent medical expert (IME) qualified on behalf of the appellant Dr New made a deduction of one-tenth to account for the 2000 injury including the shoulder replacement surgery, but clearly the appellant is not making a submission that a one-tenth deduction should be made.
The Appeal Panel after a careful review can discern no error by the MA and absent a finding of error cannot require a re-examination.
The worker suffered an injury on 24 April 2000 for which he came to a total shoulder replacement in 2005. He has been assessed as having a 30% permanent loss of the efficient use of the left arm, at or above the elbow as a result of that injury. The MA took a history from the appellant on the day of examination that he was left with residual pain and stiffness after the left shoulder replacement. This is consistent with the appellant’s own statement evidence that he was doing lighter work after the shoulder replacement and despite ongoing pain and discomfort in the left shoulder he was able to manage because the work was lighter, and he could delegate. It was only when his duties changed in 2016 that he experienced more pain in the left shoulder and he also began to experience pain in the right shoulder and he said “prior to that point I had been using my right shoulder to compensate for my left shoulder”. He came to an operation on his right shoulder.
The overall level of WPI assessed for the left shoulder is based upon the left shoulder replacement and a range of motion assessment.
The fact of the left shoulder replacement as a result of the 2000 injury must be the subject of deduction, as conceded by the appellant, and MA has taken into account that the appellant was left with residual pain and stiffness (consistent with the other evidence before him) after the left shoulder replacement. The appellant concedes that it was open to the MA that a ROM impairment after the left shoulder replacement surgery be taken into account in making a s 323 deduction but says the deduction was excessive, not reasoned adequately and was deficient for failing to ask the appellant if the restriction in his ROM “is reflective of the difference pre- and post-2016” and without contending with the fact that the medical records show an absence of complaint about restriction on ROM between 2005 and 2016.
In the Appeal Panel’s view, after a careful review of the MAC and the evidence available to the MA, the MA has taken all the available evidence into account when assessing the contribution of the prior injury to the level of permanent impairment assessed as a result of the 2016 injury. This of necessity involved the exercise of clinical judgment on the part of the MA and it is readily apparent from his reasoning that he took into account the history of residual pain and stiffness after the shoulder replacement surgery, the documentary evidence that was before him and his clinical findings on the day of assessment in reaching his conclusion that the deduction should, on the available evidence, be such that an effective apportionment of 20% WPI to the 2000 injury and 3% WPI to the 2016 injury should be made which is correctly expressed by the MA as a deduction of 20/23.
The Appeal Panel considers that the assessment by the MA of a deduction of 20/23 such that 20% WPI was apportioned to the injury on 24 April 2000 and 3% WPI was apportioned to the injury deemed to have occurred on 16 November 2016 was open to the MA in the exercise of his clinical judgment and on the available evidence. It was open to the MA in the exercise of his clinical judgment taking into account the shoulder replacement surgery which resulted from the first injury and the history of residual pain and stiffness following that surgery. The history the MA took of residual pain and stiffness following the surgery was consistent with the available evidence and indeed the appellant’s own evidence that prior to his duties changing in 2016, he could manage the ongoing pain and discomfort in his left shoulder that he had after the shoulder replacement surgery because his work was light and he could delegate. Having due regard to all of the available evidence, the MA has made a clinical judgment in assessing the extent of the impairment that had to be effectively apportioned to the 2000 injury. His reasoning was adequately explained. The Appeal Panel can discern no error in the MA’s approach to the deductible proportion under s 323 in the circumstances of this case.
Accordingly, the Appeal Panel will confirm the MAC. For these reasons, the Appeal Panel has determined that the MAC issued on 19 May 2022 should be confirmed.
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