Sydney Trains v O'Sullivan

DETERMINATION OF APPEAL PANEL
CITATION:	Sydney Trains v O'Sullivan [2024] NSWPICMP 204
APPELLANT:	Sydney Trains
RESPONDENT:	Wayne O’Sullivan
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) assessed 8% whole person impairment (WPI) of the right upper extremity, 8% WPI of the left upper extremity and 2% WPI for scarring and made no deduction pursuant to section 323; Panel satisfied MA erred in incorrectly assuming that a prior injury to the right shoulder was included in the referral and in not making a deduction under section 323; Panel made a deduction of one fifth in respect of the right shoulder for prior injury pursuant to section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 February 2024 Sydney Trains (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
19 January 2024.
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, Mr Wayne O’Sullivan (Mr O’Sullivan) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 27 November 2023 in which he claimed 18% whole person impairment (WPI) of the right upper extremity, and left upper extremity.
The matter was referred to the Medical Assessor, Dr Greg McGroder, on 19 January 2024 for assessment of WPI of the right upper extremity and the left upper extremity with the date of injury being 16 September 2013.
The Medical Assessor examined Mr O’Sullivan on 16 January 2024 and assessed 8% WPI of the the right upper extremity, 8% WPI of the left upper extremity and 2% WPI for scarring (TEMSKI). The Medical Assessor made no deduction pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality.The combined total was 17% WPI as a result of the injuries on 16 September 2013.

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 Mr O’Sullivan 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 unnecessary for Mr O’Sullivan to undergo a further medical examination because there was sufficient evidence on which to make a determination.

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.

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 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 by ‘including’ a previous 2005 right shoulder injury in his total WPI assessment, which was not within the scope of the terms of the referral;
(b)    only one date of injury was listed in the referral to the Medical Assessor, that is, 16 September 2013. It is not disputed Mr O’Sullivan sustained a frank work related right shoulder injury on this date when a train lurched suddenly, forcing his shoulder against a wall. He subsequently developed a left shoulder injury. The Medical Assessor was required to assess impairment in the left and right upper extremity resulting from this specific date of injury, and consider any deductable proportion due to previous injuries;
(c)    the Medical Assessor has taken a clear history of a prior injury to the right shoulder, but erred by declining to make a deduction in circumstances where he incorrectly assumed this injury was included in the referral. In turn, the Medical Assessor has erred by assessing impairment beyond the scope of the referral;
(d)    ground 2 - the Medical Assessor erred by failing to apply a s 323 deduction, contrary to the relevant case law including Australia Training & Job Solutions Pty Ltd v Kozlowska [2020] NSWWCCMA 32 (Kozlowska). The authorities establish a pre-existing condition or injury must contribute to the current impairment in order to invoke a deduction under s 323 of the 1998 Act. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made. However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction. To put it another way, the Appeal Panel must be satisfied that but for the pre-existing injury, the degree of impairment resulting from the work injury would not have been as great;
(e)    the presence of gross atrophy is an objective sign of poor healing and/or a failed rotator cuff repair, and thus the earlier injury and surgery would have contributed to the current impairment. Dr Breit noted the September 2013 incident was not “significantly traumatic” and would not have been aggravated to the same extent but for the 2005 injury.The radiological evidence demonstrates the pre-existing pathology was extensive and contributed a greater level of impairment warranting more than the standard one-tenth deduction pursuant to s 323(2) of the 1998 Act;
(f)    if the Appeal Panel found the 2005 injury was asymptomatic at the time of the September 2013 injury, it nonetheless contributed to the current level of impairment. This was unanimously agreed by both independent medical examiners who made a deduction greater than one-tenth due to the available medical evidence;
(g)    the conclusion expressed by the Medical Assessor does not detail a sufficient path of reasoning to enable the reader to ascertain how such conclusion was reached and whether this involved any relevant error. The Medical Assessor did not provide adequate reasons on whether the 2005 injury contributed to the current impairment. The only reason given was with respect to scarring, which logically, should have resulted in a s 323 deduction being made;
(h)    the Medical Assessor indicated throughout the MAC that the only reason he did not make a deduction was due to the fact the 2005 injury was included in the referral. Having detailed above (under Ground 1) why that is not the case, the Medical Assessor has erred by not making any s 323 deduction. This is also apparent from his reasons at page 5 of the MAC, wherein he states: “Scarring is a result of the 2005 injury to the right shoulder”;
(i)    noting the Medical Assessor conceded there was a 2% WPI owing to scarring from the initial injury, but failed to make a s 323 deduction in accordance with Cole, this would amount to a demonstrable error;
(j)    the Medical Assessor has failed to appropriately apply s 323 of the 1998 Act. The prior injury resulted in a major surgery and residual symptoms for years after the injury, such that a significant deduction pursuant to s 323 is warranted;
(k)    relying on Kozlowska, a one-half deduction is applicable. A standard 10% deduction would be at odds with the available evidence, and
(l)    the MAC should be revoked, and a new MAC issued with a one-half deduction. In the alternative, a s 323 deduction exceeding the standard one-tenth is appropriate and consistent with the weight of the evidence.
The respondent’s submissions included the following:
(a)    the Medical Assessor is an experienced assessor, and his findings are based on various considerations including Mr O’Sullivan’s presentation on the day and medical reports before him;
(b)    there is no error of law that has been made by the Medical Assessor, nor has he applied the incorrect criteria or made an error of law in coming to his determination;
(c)    the Medical Assessor is an experienced assessor having conducted numerous assessments, and his opinion should be preferred in terms of the impairment rating given and no deduction made under s 323 deduction;
(d)    accordingly, there is no demonstrable error made by Medical Assessor;
(e)    the submissions made by the appellant that one half deduction should be allowed is excessive;
(f)    the MAC dated 19 January 2024 should be confirmed, and
(g)    in the alternative if a deduction is to be made under s 323 then a 10% deduction is appropriate.

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.
Section 327(2) of the 1987 Act 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] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘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.

Ground 1

The appellant submitted that the Medical Assessor erred by ‘including’ a previous 2005 right shoulder injury in his total WPI assessment, which was not within the scope of the terms of the referral.
The Appeal Panel reviewed the evidence in this matter.
On page 2-3 of the MAC under heading ‘history relating to the injury’, the Medical Assessor recorded the following history of a previous right shoulder injury:
“Mr O’Sullivan first sustained an injury to his right shoulder in 2005. He has
injured his back whilst mopping a train and when undergoing rehabilitation for
this, he sustained an injury to his right shoulder…Dr Rizkallah performed surgery
on 30 September 2006 in the form of an endoscopic subacromial decompression,
acromioplasty excision of subacromial bursa and debridement of cuff with an
open rotator repair.
He said that he took some time off work but recovered well and was able to
return to his normal duties because he had achieved normal function.
On 16 September 2013 he was getting an object out of his bag during the course of his work when the train lurched and he hit his right shoulder against a wall. He had significant pain and started physiotherapy. He returned to see Dr Rizkallah and had a series of PRP injections. He also had a cortisone injection.
He said that he was also starting to develop some problems with his left shoulder. He had more physiotherapy. He was referred to Dr Boesel, Pain Management Specialist. His symptoms persisted bilaterally.
Because of on-going problems with pain and restriction of range of movement Dr Rizkallah recommended surgery. At that stage he said his left shoulder was more troublesome than his right and it was operated on first on 2 February 2021. This was in the form of an arthroscopic rotator cuff repair and decompression and biceps tenodesis and capsular release. He said that he achieved some relief from this but problems were on-going.
He then had surgery on the right on 8 April 2021, performed by Dr Rizkallah in the form of a rotator cuff repair and biceps tenodesis. Once again, he had on-going problems. He had follow-up physiotherapy. He saw Dr Rizkallah for the last time in mid-2021 and he said that sometime in the future he may require shoulder replacements. At this stage this has been decided against.”
On page 3 of the MAC, the Medical Assessor noted:
“After his initial surgery in 2006 he had six months off work and was able to return to normal duties. He did this until 2013 when he injured his shoulders but was able to continue working until 2017 when he developed his Post Traumatic Stress Disorder. He then worked selected duties in the office until 2022 when he was medically retired.”
On page 4 of the MAC under heading ‘Evaluation of Permanent Impairment’, the Medical Assessor in answer to the question “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” wrote:
“No. I note that the referred date of injury is 16 September 2013 but the ARD dated 16 September 2013 outlines the description of the injury involved nature and condition of employment as a Train Guard, including work accident in 2006 to the right shoulder. Subsequently, no deduction is made.”
In commenting on the other medical opinions the Medical Assessor wrote:
“Dr Endrey-Walder, Orthopaedic Surgeon, supplied medico-legal reports on 3 September 2020 and 26 October 2022. My examination findings are not dissimilar to those of Dr Endrey-Walder, the difference being that he made a one-fifth deduction for the right shoulder for a pre-existing condition. I did not make a deduction as the ARD states that the 2005 right shoulder injury is included. Dr Endrey-Walder only estimated 1% WPI for the scarring, whereas I felt that 2% WPI was more appropriate.
Dr R Breit, Orthopaedic Surgeon, supplied six medico-legal reports, the last being on 13 April 2023. In that assessment the findings outlined by Dr Breit are not dissimilar to mine. I agree with his assessment of 2% WPI for scarring. Dr Breit made a one-half deduction for the right shoulder for a pre-existing condition but as noted above as the 2005 injury has been included in the referral I have not made this deduction.”
The appellant acknowledged that the pleadings, the medical evidence and the referral must all be considered to establish the nature of the medical dispute between the parties: Sleiman v Gadalla Pty Ltd [2021] NSWCA 236.
In the ARD, the following “injury details: were provided:
“Type of Injury: Personal
Date: 16/09/2013
Injury Description: The Applicant sustained bilateral shoulder injury when the train he was guarding suddenly lurched causing him to stumble and lose his
footing and fall onto outstretched arms, causing injury to both shoulders.
Nature and conditions of employment as a train guard including work accident in 2006 to the right shoulder. Aggravation, exacerbation, acceleration of degeneration and or disease process.”
Mr O’Sullivan made a claim for 18% WPI of the right upper extremity and left upper extremity.
In his statement dated 24 November 2023 annexed to the ARD, Mr O’Sullivan referred only to an injury to right shoulder on 16 September 2013 and a secondary condition in the left shoulder. However, Mr O’Sullivan stated: “ This statement is to be read in conjunction with my earlier statement dated 20 October 2020, a copy of which is annexed herewith and marked with the letter 'A'.”
In the statement dated 20 October 2020, under the heading “Previous Shoulder Injury”
Mr O’Sullivan wrote:
“5. In October 2005, I suffered an injury to my right shoulder while I was performing a gym programme to rehabilitate my back.
6. On 30 September 2006, I underwent a right shouldere rotator cuff repair performed by Dr Rizkallah. My shoulder pain never disappeared but was manageable.
7. This claim was approved by my employer’s workers compensation self insurer.”
Mr O’Sullivan’s claim for permanent impairment was based on the report of Dr P Endrey-Walder, general surgeon, dated 26 October 2022. Dr Endrey-Walder assessed 11% WPI of the right shoulder and then wrote: “I expect that one fifth of the right should impairment is due to the previous injury (November 2009). 8.8% WPI is normally rounded up to 9%”.
In a earlier report dated 3 September 2020, Dr Endrey-Walder referred to a right shoulder injury and wrote:
“In 1992 he injured his lower back at work, had a flare-up in 2005. On account
of the gym-based exercises for his back he started experiencing right shoulder
pain, further aggravated and exacerbated by his daily work as a Train Guard,
having to push buttons, turn switches overhead all day.
In September 2006 he had right shoulder rotator cuff repair, for what is
described as bursitis and cuff tear.
In November 2009 he was reviewed regarding his right shoulder on account of
increasing symptoms in the months previously.
Mr. O'Sullivan's take on his right shoulder condition following the operation of 2006 was that ‘I was coping’.”
Dr Robert Breit, orthopaedic surgeon, in a report dated 13 April 2023, made an assessment of 8% WPI of the right upper extremity, 8% WPI of the left upper extremity and 2% WPI for scarring of the right shoulder. He indicated that half of the impairment for the right shoulder including the scarring was associated with the right shoulder injury in October 2005 that being 5% WPI. Dr Breit considered that there had been a re-tear of the right rotator cuff from the original right shoulder injury in 2005. He wrote:
“I have attributed the half quantum for the earlier right shoulder injury on the
basis that he had a torn rotator cuff at the time and there was a repair which
had obviously failed given the MRI findings particularly the gross atrophy. The
injury of September 2013 was not significantly traumatic but did not result in a
permanent aggravation so that there was a major contribution from the 2005 event.”
Dr Breit, in a report dated 5 March 2020, noted that he had previously seen Mr O’Sullivan in May 2014 and also in 2010 regarding an injury from October 2005. Dr Breit wrote:
“Briefly the history at that time was an injury to the right shoulder while doing a gym programme to rehabilitate his back. He fell under the care of Dr Rizkallah and had surgery which appears to have been a rotator cuff repair.
I am told the shoulder became quite good and had no further problems until this event.
On 16 September 2013 while on a train he was bending over to get something out of his bag just as the train negotiated a crossover and he was thrown about, grabbing a support bar with the right arm, sustaining a traction type injury as well as swinging into the door impacted on the shoulder.”

Dr Breit made a diagnosis of right rotator cuff tear /repair with residual tendinosis.
The Appeal Panel noted that Dr Breit had also provided a report dated 6 March 2006 regarding a claim in respect of a back injury on 7 April 2004. He wrote:
“He had some hydrotherapy and then a gym programme which resulted in a right shoulder injury that occurred while doing pull downs. It has not completely settled. He did not return to the gym and the membership has expired”.
On examination Dr Breit noted:
“There is some tenderness over the right acromioclavicular joint and impingement area with a marked response to light palpation. There is 150 degrees of elevation,
100 abduction and 30 degrees of external rotation. He can get the hand behind the
back to T 12. There is a distinct subacromial click not associated with any pain.
He did complain of pain towards the end of range in all directions. Impingement
tests were said to produce marked pain and he has Grade V rotator cuff strength.”
Dr Breit considered tha Mr O’Sullivan had some evidence of right rotator cuff impingement and acromioclavicular joint pain that could be precipitatated by gym exercise.
The Referral for Assessment of Permanent Impairment to Medical Assessor (the referral) dated 21 December 2023 set out the date of injury as “16/09/2013” and body parts referred as “Right Upper Extremity, Left Upper Extremity”.
The ARD makes reference to a specific injury to the right shoulder on 16 September 2013, and “nature and conditions of employment as a train guard including work accident in 2006 to the right shoulder”. The ARD and the referral do not mention the 2005 incident at all. There is no record of a work accident in 2006 as referred to in the ARD and Mr O’Sullivan’s Independent Medical Examiner, Dr Endrey-Walder, made a deduction in respect of the injury in 2005 which occurred during a rehabilitation program. The referral provides that the date of injury was 16 September 2013 and it appears that Mr O’Sullivan made no objection to the terms of the referral or sought to have it amended to include the injury that occurred in 2005.
It is clear that Dr Breit and Dr Endrey-Walder agreed there was a prior right shoulder injury in 2005 justifying a deduction pursuant to s 323 of the 1998 Act, but disagreed as to the extent of that deduction, as well as degree of impairment generally.
The Appeal Panel considers, taking into account the pleadings and medical reports, that the dispute between the parties concerned the degree of impairment resulting from the injury on 16 September 2013 and the extent of any deduction to be made under s 323 in respect of the previous injury to the right shoulder in 2005. Therefore, the Medical Assessor should have considered the question of any deduction to be made in respect of the injury in 2005, and the failure to do so is an error.

Ground 2 – deduction for previous injury

The appellant submitted that the Medical Assessor erred by failing to apply a s 323 deduction, contrary to the relevant case law.
Section 323 of the 1998 Act provides:
“(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.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4)The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction 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.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case.”
The assessor must point to the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributes to that assessment. In Vitaz v Westform (NSW) Pty Limited and Ors [2010] NSWSC 667, decided on 22 June 2010, Johnson J said at [48]: “...it is insufficient to assume that the existence of a pre-existing injury or condition will always contribute to the impairment flowing from any subsequent injury: Cole v Wenaline Pty Limited at [30].”
Basten JA in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 referred to the approach adopted by the Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]- [32] and, more recently, by Schmidt J in Cole. His Honour said:
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
In Fire and Rescue v Clinen [2013] NSWSC 629, Campbell J said:
“32. As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a preexisting abnormality or condition, here the latter, actually contributing to the impairment before s. 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
The appellant referred to the decision in Kozlowska. In that case, the appellant employer submitted the respondent had significant pre-existing conditions in her cervical spine and right shoulder and the Medical Assessor failed to consider the progression in radiological investigations in order to appropriately consider the deduction under s 323 of the 1998 Act. At [65]-[66], the Appeal Panel stated: “Given the extent of the respondent’s right shoulder condition prior to the work accident, where surgery was not just contemplated but proposed, suggests to us that a significant deduction ought to be made… again, we consider that one-half is appropriate”.
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction 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”. To establish a pre-existing condition for the purposes of
s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition.
The Appeal Panel reviewed the evidence in this matter.
Mr O’Sullivan reported in his statement dated 20 October 2020 that after his right rotator cuff repair on 30 September 2006, his shoulder pain “never disappeared but was manageable”.
In the Operation Report from Nepean Private Hospital dated 30 September 2006, under
heading ‘Operative Findings’, it stated there was a “massive rotator cuff tear at supraspinatus
muscle belly with severe retraction”.
Mr O’Sullivan continued to see his general practitioner, Dr John Hillman, with right shoulder complaints for at least five years after the 2005 injury. Dr Hillman prescribed Codalgin Forte for management of pain in the right shoulder during this period.
Dr Hillman’s clinical notes and records contained the following entries:
(a)    On 3 May 2010 Endone was prescribed and Dr Hillman noted that the physiotherapist recommended a gym program.
(b)    On 19 July 2010, Dr Hillman noted “right shoulder strength improving.”
(c)    On 4 August 2010, Dr Hillman noted:
“Getting stronger with work at the gym
Wants to increase workload on certificate
Right shoulder feeling better
He noted that pain medication was reduced to every second day.”
(d)    On 8 September 2010, Dr Hillman noted:
“Right shoulder movement much better from the gym course
Has full range of movement Sometimes causes pain at night.
Rx to reduce pain medication.”
(e)    On 29 November 2010, Dr Hillman issued a final certificate for normal duties and noted: “Has stopped the Naprosyn codalgin forte and Valium. Working out at the gym. Right shoulder much improved.”
(f)    On 28 December 2010, Dr Hillman wrote to the appellant and reported that
Mr O’Sullivan was seen by him on 29 November 2010 and was noted to be quite fit in that he had bulked up from the work in the gymnasium. Dr Hillman wrote: “He is free of neck and right shoulder pain and had a full range of movement in the shoulder.”
Dr Hillman made no further entries in his records in relation to the right shoulder after
28 December 2010 until an entry on 16 September 2013 when Mr O’Sullivan consulted him concerning an injury to the right shoulder at work that day. The Appeal Panel noted that on 24 July 2012, Dr Hillman reported that Mr O’Sullivan had twisted his right ankle the day before when he trod in a hole on Penrith Golf Coures and rolled his right ankle. The Medical Assessor noted that Mr O’Sullivan is right handed dominant and it can be inferred that he was able to play golf in 2012.
In his report dated 2 September 2020, Dr Endrey-Walder noted under past and personal history:
“In September 2006 he had right shoulder rotator cuff repair, for what is described
as bursitis and cuff tear.
In November 2009 he was reviewed regarding his right shoulder on account of
increasing symptoms in the months previously.
Mr O’Sullivan’s take on his right shoulder condition following the operation of 2006
was that ‘I was coping’”.
Dr Endrey-Walder gave the opinion tht Mr O’Sullivan suffered a significant aggravation to his previously damaged right shoulder, as a result of the incident in September 2013. Dr Endrey-Walder assessed 11% WPI of the right shoulder and then stated “I expect that one fifth of the right shoulder impairment is due to the previous injury”.
Dr Breit, in his report dated 13 April 2023, wrote:
“It certainly appears that there was a re-tear of the right rotator cuff from the
original right shoulder injury in 2005 and that has allegedly been repaired.
The reason for that repair (even if successful will not alter function because
the muscle will never recover)…
On the basis of the available information, I would indicate that half of the
impairment for the right shoulder including that of the scar, is associated
with his index right shoulder injury from October 2005, that is 5% WPI. The
rest of the impairment in the right shoulder and that of the left total 13% WPI
relates to the injury of 16 September 2013.
I have attributed the half quantum for the earlier right shoulder injury on the
basis that he had a torn rotator cuff at the time and there was a repair which
had obviously failed given the MRI findings particularly the gross atrophy.
The injury of September 2013 was not significantly traumatic but did not
result in a permanent aggravation so that there was a major contribution
from the 2005 event”.
Within the MAC, under the heading ‘Details and Dates of Special Investigations’, the Medical Assessor noted:
“January 2007 – MRI Right Shoulder
High grade partial thickness bursal side tear of the supraspinatus, supraspinatus muscle belly atrophy.
11 July 2007 – MRI Right Shoulder
Attenuation of the supraspinatus tendon and profound muscle atrophy of the supraspinatus.
28 October 2013 – MRI Right Shoulder
Previous supraspinatus repair. The supraspinatus muscle belly was markedly
atrophic. There was new subacromial bursitis and tendinosis. There was a tear
of the posterosuperior labrum and the anteroinferior labrum macerated”.
The appellant submitted that in the years preceding the September 2013 injury,
Mr O’Sullivan had significant pathology in his right shoulder and the finding of supraspinatus muscle atrophy commonly occurs due to rotator cuff tears and indicated that the prior 2005 injury (being a rotator cuff tear) significantly contributed to the current impairment. The appellant referred to the decision in Kozlowska and argued thata one-half deduction is applicable.
The facts in Kozlowska can be distinguished and a deduction under s323 should be made taking into account the evidence in each particulat case.
The Appeal Panel is satisfied that a proportion of the impairment assessed in respect of the right shoulder is due to any previous injury in 2005. The pathology associated with the injury in 2005 is clearly identified in the MRI scans referred to in the MAC. The Appeal Panel notes that Mr O’Sullivan had surgery to the right shoulder in 2006 and was then treated for the effects of the right shoulder injury until late 2010. The Appeal Panel accepts that
Mr O’Sullivan’s right shoulder condition improved in late 2010 after a gym program and he was cerfified fit for his pre-injury duties. Further, Mr O’Sullivan made no further complaints to his general practitioner concerning the right shoulder until 16 September 2013 and was able, it appears to play golf in 2012. However, the Appeal Panel notes that Mr O’Sullivan stated that after the 2005 injury to his right shoulder, his shoulder pain “never disappeared but was manageable”.
The Appeal Panel is satisfied that taking those factors into account, a one-fifth deduction for the right shoulder should be made in respect of the injury in 2005. The Medical Assessor assessed 8% WPI for the right shoulder. A one fifth deduction is 1.6%, which results in 6.4% WPI and this is rounded down to 6% WPI.
There is also an assessment of 2% WPI for scarring of the right shoulder.
The Medical Assessor wrote:
“With regard to the scarring I have estimated according to the TEMSKI scale 2% WPI. There is a signifcant scar which is not uncomplicated. There is a noticeable scar and he is well aware of it. There is major contour defect and some tethering and suture marks visible. Scarring is a result of the 2005 injury to the right shoulder but as this is included in the referral I have not made a deduction for a pre-existing condition.”
The appellant noted that the Medical Assessor conceded there was a 2% WPI for scarring from the initial injury, but failed to make a s 323 deduction in accordance with Cole, which would amount to a demonstrable error.
The Appeal Panel did not agree with the Medical Assessor that the scarring resulted from the initial injury in 2005. The Appeal Panel considered that the scarring as observed by the Medical Assessor was due to the second operation to the right shoulder on 8 April 2021 which occurred as a result of the injury on 16 September 2013.
The surgery on 30 September 2006 involved an endoscopic sub-acromial decompression, acromioplasty, E/O subacrominal bursa and GH arthroscopy with debridement of cuff and mini-open rotator cuff repair. The consent for surgical treatment form dated 17 March 2021 noted that the agreed procedure on 8 April 2021 was a “right shoulder open sunacrominial decompression, rotator cuff repair and biceps tendosis”.
The Appeal Panel noted that on 3 September 2020, that is, before the second operation to the right shoulder, Dr Endrey-Walder described a “7cm long well healed old surgical scar”. However, in his report of 26 October 2022, after the surgery on 8 April 2021, Dr Endrey Walder described the scar as a “7cm long rather prominent, depressed surgical scar over the right shoulder girdle” and as “an unsightly surgical scar”. The Appeal Panel considered that any scarring following the surgery in 2006 would not rate an assessment as it was clearly an uncomplicated scar from a standard surgical procedure whereas the scarring following the second operation was such as to rate a 2% WPI assessment. Therefore, no deduction should be made under s 323 in respect of scarring.
In conclusion, the Appeal Panel assessed 6% WPI for the right shoulder which when combined with 8% WPI for the left shoulder and 2% WPI for scarring results in 16% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
19 January 2024 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:	W8910/23
Applicant:	Wayne O’Sullivan
Respondent:	Sydney Trains

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)
1.Right Upper Extremity	16/9/13	Chapter 2 Pages 13-15	Pages 476/477/479 Figures 16.40/16.43/16.46	8%	One-fifth	6%
2.Left Upper Extremity	16/9/13	Chapter 2 Pages 13-15	Pages 476/477/479 Figures 16.40/16.43/16.46	8%	Nil	8%
3.Scarring	16/9/13	Temski	2%	Nil	2%
Total % WPI (the Combined Table values of all sub-totals)					16%

[2024] NSWPICMP 204

9 April 2024