Szymanski v AGS Plasterboard Supplies Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Szymanski v AGS Plasterboard Supplies Pty Ltd [2022] NSWPICMP 357
APPELLANT:	Andrew Szymanski
RESPONDENT:	AGS Plasterboard Supplies Pty Limited
Appeal Panel
MEMBER:	William Dalley
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	14 September 2022
CATCHWORDS:	wORKERS cOMPENSATION- Appellant alleged error with respect to classification of neck impairment as cervical category Diagnosis Related Estimate (DRE) I; deduction of previous award in respect of earlier injury and assessment of the left heel; alleged failure to assess asymmetry of movement in the cervical spine and failure to observe and record wasting in the left calf; Held – the Medical Assessor (MA) had appropriately considered asymmetry of movement and measured the respective calves in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; no error in this regard; MA technically fell into error in deducting the previous findings of Whole Person Impairment in respect of the shoulders rather than considering the extent to which the previous injury contributed to the impairment assessed on examination; upon consideration of the evidence the Panel concluded that the previous injury contributed one half in respect of the left shoulder and 2/5 in respect of the right shoulder which resulted in the same finding as assessed by the MA.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 May 2022 the appellant, Andrew Szymanski, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
·        the assessment was made on the basis of incorrect criteria,
·        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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5)

RELEVANT FACTUAL BACKGROUND

Mr Szymanski commenced employment as a plasterer with AGS Plasterboard Supplies Pty Ltd in the mid 1980’s. He performed physically demanding work in that role and developed symptoms in his shoulders which led to his referral to an orthopaedic surgeon, Dr Herald, who operated on the left shoulder in 2008 and the right in 2009[1]. With the assistance of physiotherapy Mr Szymanski was able to resume his employment as a plasterer.
[1] Reports of Dr Herald dated 28 October 2008 (Application to Resolve a Dispute (ARD) page 45), 16 December 2008 (ARD page 49) and 15 August 2009 (ARD page 57).
Mr Szymanski made a claim in 2010 for lump-sum compensation in respect of impairment arising from injury to his shoulders which was agreed at 2% whole person impairment (WPI) in each shoulder for a total of 4% WPI.
On 13 August 2018 Mr Szymanski suffered a further injury to the left shoulder when lifting a toolbox. Investigation showed a full thickness, near complete tear of both the supraspinatus and infraspinatus tendons. He was again referred to Dr Herald and underwent a cortisone injection and physiotherapy. Dr Herald suggested waiting to see effect of the injection before considering further treatment. However, on 30 November 2018 Mr Szymanski suffered further injury when he missed the second last rung when coming down a ladder (the subject injury). He fell, landing with outstretched arms and injuring his neck, shoulders and left heel.
Mr Szymanski returned to see Dr Herald, who performed arthroscopies on the left shoulder in March 2019 and the right shoulder in September 2019[2].
[2] Report of Dr Herald 5 March 2019 (ARD page 67) and 17 September 2019 (ARD page 74).
The left heel was investigated with X-rays and MRI scan. Conservative treatment did not resolve the symptoms and Dr Herald performed a left ankle arthroscopy and Achilles tendon debridement and osteotomy of a spur in May 2020[3].
[3] Report of Dr Herald 26 May 2020 (ARD page 81).
Mr Szymanski continued to suffer symptoms in the shoulders and heel. He had also experienced pain and restriction of movement in the neck, originally felt to be associated with the right shoulder injury. In November 2020 Mr Szymanski was referred to a neurosurgeon, Dr Winder. MRI investigation of Mr Szymanski’s cervical spine disclosed evidence of disc protrusions at the levels of C4/5 and C5/6 with a large disc protrusion extending into the foramen on the right at the C5/6 level.
Dr Winder recommended a right C6 periradicular injection which provided relief for a time. A further injection again provided relief for a period. Dr Winder recommended surgery, but Mr Szymanski was reluctant and wished to continue to rely on injections.
In October 2020 Mr Szymanski was examined by a surgeon, Dr Endrey-Walder, at the request of Mr Szymanski’s solicitors for the purposes of a claim for lump-sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Dr Endrey-Walder assessed Mr Szymanski as suffering 5% WPI as a result of injury to the right shoulder and 4% WPI as a result of injury to the left shoulder. He felt that the pre-existing condition in the shoulders warranted a deduction of 1/10 which, after rounding, did not affect the extent of impairment assessed. Dr Endrey-Walder also assessed Mr Szymanski as having 4% WPI as a result of injury to the left heel.
Dr Endrey-Walder assessed Mr Szymanski as falling within Diagnostic Related Estimate (DRE) cervical category II, warranting a further 6% WPI. Applying the Combined Values Chart[4], Dr Endrey-Walder assessed Mr Szymanski as having 18% WPI as a result of the subject injury. Mr Szymanski’s solicitors made a claim for lump-sum compensation in accordance with that assessment.
[4] AMA 5, page 604.
The insurer had Mr Szymanski examined by an orthopaedic surgeon, Dr John Bosanquet, in December 2020. Dr Bosanquet noted the history of injury to the shoulders and left heel. He did not accept that the cervical spine condition was attributable to the subject injury. Upon examination Dr Bosanquet found full range of movement in both arms and accordingly assessed 0% WPI in respect of the left and right upper extremities. He assessed the left heel at 1% WPI based upon, or by analogy with, the provisions in the Guidelines in respect of plantar fasciitis.
The insurer having declined the claim for lump-sum compensation, Mr Szymanski’s solicitors filed an ARD in the Commission. The insurer maintained its denial of liability for lump-sum compensation. The parties ultimately agreed on consent orders pursuant to which the claim was referred to the Medical Assessor to assess the degree of permanent impairment in respect of the right upper extremity (shoulder), left upper extremity (shoulder), cervical spine and left lower extremity (heel) as a result of injury on 30 November 2018.
Mr Szymanski was examined by the Medical Assessor on 18 March 2022. The Medical Assessor noted the history of injury, the radiological investigation reports, Mr Szymanski’s statement and the reports of the independent medical experts, Dr Endrey-Walder and Dr Bosanquet as well as the reports of the treating specialists. The Medical Assessor assessed the various body parts as cervical spine, 0% WPI, left upper extremity, 4% WPI, right upper extremity 5% WPI and left lower extremity (heel) at 0% WPI.
The Medical Assessor deducted 2% from each of the upper extremity assessments in respect of prior injury to the respective shoulders to give a total assessment of 5% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant submitted that Mr Szymanski should undergo re-examination by a Medical Assessor member of the Panel. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. Although error has been established with respect of the deduction pursuant to s 323 of the 1998 Act, the correction of that error upon review is not assisted by re-examination. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[5], Davies J said (at [33]):
“However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”
[5] [2013] NSWSC 1792.
The Panel is satisfied that there is sufficient evidence before the Panel to enable the Panel to complete its task without the need for a further examination in this case.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) photograph of left calf with tape measure, and
(b) photograph of right calf with tape measure.
The appellant submits that the evidence is relevant to demonstrate the Medical Assessor’s measurements of the calves was incorrect. The appellant submits that the evidence was not available and could not reasonably have been obtained because the supply of such evidence would not reasonably have been thought necessary.
The respondent opposed the admission of the additional evidence on the basis that the photographs were of no probative value because there was no identification of the respective limbs and no evidence of the circumstances and date on which the measurements portrayed were taken.
The appellant seeks to rely on the photographs in support of a ground of appeal pursuant to s 327(3)(b) of the 1998 Act “availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).”
The admission of fresh evidence on appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance[6] (Ross). In Ross, the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
[6] [2002] NSWCCPD 7.
In Petrovic v B C Serv No 14 and Others[7] (Petrovic) Hoeben J held that an Appeal Panel has the discretion to accept late evidence if the evidence met the test set out in s 328(3) of the 1998 Act. In that case the appellant worker sought to introduce into evidence two statutory declarations dealing with the way in which the examination process had been conducted. Hoeben J held that, to meet the requirements of s 327(3)(b) the evidence sought to be introduced was restricted to “information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment”.[8]
[7] [2007] NSWSC 1156.
[8] At [31].
In Lukacevic v Coates Hire Operations[9] (Lukacevic ) Hodgson JA said (Handley JA agreeing, Giles JA dissenting):
“[77] An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.
A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[9] [2011] NSWCA 112.
The two photographs sought to be introduced into evidence show lower legs. The photograph said to be that of the left leg appears to have a tape measure showing a circumference of just over 39cm around the calf. The photograph which is identified as that of the right leg appears to have a tape measure showing a circumference of slightly more than 43cm at some point in that calf.
As noted by the respondent, there is no evidence identifying the respective calves as those of the appellant and there is no information as to the date when the measurements were made. In the view of the Panel, the more serious objection is that the photographs do not establish the point on the respective calves at which the measurements were taken. AMA 5 Table 17-6 as modified by paragraph 3.14 of the Guidelines provides, with respect to the assessment of unilateral muscle atrophy, “calf: the maximum circumference on the normal side as compared with the circumference at the same level on the affected side.”
The photographs sought to be introduced into evidence do not appear to meet that criterion, appearing to be measured at a point below the level of maximum circumference on the normal side and not necessarily at the same level on the affected side. The measurements are also at variance with the figures measured by the appellant’s independent medical expert, Dr Endery-Walder, who measured the right calf at 41cm and the left calf at 38.5cm in March 2021.
The Panel considers that the photographs have little probative value as they do not establish that the measurements were taken at the same point of the calf in each case. The photographs cannot establish that the Medical Assessor incorrectly measured the calves at the time of his assessment. The appellant also faces the difficulty noted by the Court of Appeal in Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor[10] (Pitsonis):
“Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”[11]
[10] [2008] NSWCA 88 per Mason P at [59], McColl and Bell JJA agreeing.
[11] Per Mason P at [59].
There is a strong potential for unfairness to the respondent in that the respondent has no opportunity to test the accuracy of the measurements portrayed.
For those reasons, the Panel determines that the evidence should not be received on the appeal.

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 relied upon three grounds. In summary, the appellant submits that the Medical Assessor had applied incorrect criteria when assessing Mr Szymanski as falling within DRE cervical category I in that he had failed to refer to asymmetric loss of range of motion which would, it was submitted, have led to the conclusion that Mr Szymanski was correctly assessed as falling within DRE cervical category II.
The appellant’s second ground asserted that the Medical Assessor had erred in the application of s 323 of the 1998 Act in deducting 2% WPI respect of the previous settlement in 2010 for the left and right shoulders.
The appellant’s third ground was that the Medical Assessor had erred in his assessment of the left heel in finding that there was no muscle atrophy in the left calf.
In reply, the respondent submits that the assessment of Mr Szymanski as falling within DRE cervical category I was consistent with the evidence and the examination conducted by the Medical Assessor. The deduction pursuant to s 323 was soundly based upon the evidence and no error was demonstrated. With respect to the third ground, the respondent submitted that the Medical Assessor’s conclusion was based upon his physical examination and correctly concluded that there was 0% WPI. The potential evidence of the photographs of the calves could not displace the recorded findings of the Medical Assessor at the time of his examination.

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[12] 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.
[12] [2006] NSWCA 284.
The appellant included a ground of appeal pursuant to s 327(3)(b) of the 1998 Act, “availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against.”
For the reasons set out above the Panel has declined to accept the additional information as lacking any probative value. Considered in respect of s 327(3)(b), the evidence does not constitute “information of a medical kind or which is directly related to the decision required to be made by the AMS” which Hoeben J held was a requirement when considering that ground of appeal.
The appeal pursuant to s 327(3)(b) accordingly fails.
The appellant also relied upon grounds of demonstrable error and use of incorrect criteria. The appellant addressed submissions to the assessment of the cervical spine, the upper extremities and the heel. It is convenient to consider those parts separately.

Assessment of the cervical spine

The appellant submitted that the Medical Assessor had failed to consider all of the elements relevant to a DRE cervical category II assessment and the assessment was therefore made on the basis of incorrect criteria. The appellant submitted:
“The MA, at page 10 a, listed the elements that he considered relevant to the task without referring to asymmetric loss of range of motion. If the MA had considered that criterion, he would have found it relevant that the applicant had a full range on flexion but less than a full range on extension, thereby creating an asymmetry. When combined with disc protrusion on MRI, and evidence of radiculopathy (p9), the applicant should have been assigned DRE II. In the alternative there was a demonstrable error”.
At page 10 of the MAC the Medical Assessor explained his assessment of the cervical spine:
“Table 15 – 5 p. 392 AMA 5 is used. DRE I is appropriate, as findings at this assessment revealed no evidence of guarding, no dysmetria, no non-verifiable radicular complaints, and no radiculopathy. This results in a 0% WPI. Although Dr Winder mentions of radiculopathy 19 October 2021, the documentation does not support the presence of a radiculopathy as defined by section 4.27 in the Guides.”.
Those observations by the Medical Assessor establish that he did consider asymmetry of motion. This is inherent in his finding “no dysmetria”. The term “dysmetria” is borrowed from the assessment of impairment arising from motor vehicle accidents but its meaning is identical with the term adopted by the Guidelines, “asymmetry of motion”. Upon examination of the cervical spine the Medical Assessor recorded:
“The cervical posture was normal. There was positive reported tenderness to palpation of the neck spinous processes or paraspinal muscles. There was no visible or palpable deformity in the neck region. There was no observed muscle spasm or guarding. Cervical movement was a fraction of the normal range of motion of full cervical extension, full flexion, full right rotation, full left rotation, full right lateral flexion and full left lateral flexion.”
These observations led the Medical Assessor to conclude “there was no cervical dysmetria”.
The Panel understands the Medical Assessor’s observation “cervical movement was a fraction of the normal range of motion of full cervical extension” to mean that the cervical range of motion was not reduced to a significant extent.
The Panel is satisfied that the Medical Assessor did consider asymmetry of motion and reached a conclusion that was open to him on the evidence. This ground of appeal accordingly must fail.

The upper extremities – application of s 323 of the 1998 Act

The second ground of appeal concerns the application of s 323 of the 1998 Act by the Medical Assessor with respect to assessment of the upper extremities. The appellant noted:
“The MA said at page 12 that the reason for the deduction was a previous settlement of 2% WPI of 14 years previous. This is not appropriate reasoning for section 323 of the 1998 Act. The MA is required to explain how the pre-existing impairment contributes to the impairment being assessed. (Kladis v Jetstar Airways Pty Limited [2021] NSWPICMP 117 at [44] and [45]) [Kladis]. The MA did not undertake this task. In the alternative, there was a demonstrable error.”
The Medical Assessor reported that a proportion of the impairment suffered by Mr Szymanski was due to a previous injury, pre-existing condition or abnormality. He explained:
“There was a pre-existing left shoulder condition that were still under treatment prior to the subject injury and a documented rotator cuff tear after a previous repair. Section 1.27 p. 6 of the Guides indicates that the assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury. There is a settlement of 6 December 2020[13] of 4% WPI of the left and right shoulder surgery and surgery. I consider that in accordance with section 1.27 this impairment must not be included in the final calculation. If 2% is attributable to each shoulder, then 4% -2% yields 2% WPI.”
[13] The Panel accepts that this is a typographical error and that the correct date is 6 December 2010 (letter from Keddies Lawyers dated 8 December 2010 at page 6 of the ARD).
The respondent submitted: “The Medical Assessor has decided to deduct the previous permanent impairment settlement from the current permanent impairment settlement, which the respondent submits is a rational and compelling approach was open to the Medical Assessor.”
The Panel accepts that the process by which the Medical Assessor arrived at his conclusion did not accord with the requirements of s 323 of the 1998 Act. Section 323(1) provides:
“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.”
Both parties refer to the decision of the Appeal Panel in Kladis. The Appeal Panel in that matter noted the decision of Schmidt J in Elcheikh v Diamond Framework (NSW) Pty Ltd(in liquidation)[14]where Her Honour said at [126]-[127]:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
Firstly, what the extent of the resulting impairment is.
Secondly, whether the pre-existing condition contributed to the impairment.
Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition”.
[14] [2013] NSWSC 365.
The appellant has not sought to make out a case of injury “caused by an exacerbation or acceleration the pre-existing condition”. The injury relied upon is the pathology suffered as a result of the slip and fall from a ladder on 30 November 2018. Despite that difference, the Panel accepts that the task of the Medical Assessor is to ascertain the extent of impairment in accordance with the Principles of Assessment set out at paragraph 1.6 of the Guidelines which require: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information” when performing his or her task.
Section 323 of the 1998 Act requires the Medical Assessor to determine whether there is a pre-existing condition, abnormality or previous injury and, if so, determine whether that condition, abnormality or injury contributes to the extent of impairment assessed upon examination.
If the Medical Assessor determines that a pre-existing condition, abnormality or previous injury contributes to the extent of impairment assessed then the Medical Assessor has to determine the proportion of the impairment that is due to that condition, abnormality or injury.
In the present case it is not clear that the Medical Assessor has not simply made a mathematical deduction in respect of the previous settlement without considering the extent to which any pre-existing condition, abnormality or previous injury contributes to the extent of impairment assessed on the day of examination.
Instead of assessing the proportion of the assessed impairment attributable to the pre-existing condition, abnormality or previous injury, the Medical Assessor has deducted the previous assessment agreed upon in by the parties December 2010.
The Panel is satisfied that demonstrable error has been established in respect of this ground. It is therefore appropriate for the Panel to review the evidence to determine the condition of the respective shoulders prior to the subject injury and to determine whether that condition contributes to the extent of impairment assessed by the Medical Assessor.
The Panel notes the previous settlement in December 2010 but has placed little weight on the extent of impairment agreed to have been experienced at that time. The subject injury occurred after Mr Szymanski had continued to perform the manually demanding tasks required of a plasterer for a further eight years.
In his statement dated 19 January 2022, Mr Szymanski said that he had begun experiencing significant pain in the shoulders around 2002. He had commenced a business as a plasterer in the mid-1980s and had continued to work in that business. In the years following 2002 Mr Szymanski said that he found the pain in his shoulders was getting worse and he suffered increasing weakness. This affected his work and his “general everyday life”. It was as a result of these symptoms that he made a claim for workers compensation.
Mr Szymanski described the surgery carried out by Dr Herald. He underwent a left shoulder arthroscopy and rotator cuff repair in December 2008 and a right shoulder arthroscopy and rotator cuff repair in August 2009. After a period of rehabilitation, he was able to return to suitable duties and then to his normal duties. He said that he had to downsize his business as he was working on his own. He then sought legal advice and made a claim for lump-sum compensation in 2010. He then said that he was “managing well” with his shoulders until 13 August 2018 when he experienced immediate pain in the left arm when lifting a heavy toolbox. He said that he had received a left shoulder injection which provided significant pain relief. He was referred for treatment once more to Dr Herald who advised conservative treatment. He was receiving treatment when the subject injury occurred on 30 November 2018.
The reports of radiological and ultrasound investigations are variously set out in the MAC and in the reports of Dr Endrey-Walder and Dr Bosanquet. The X-ray on 23 March 2009 was reported as showing “two small screws in the tuberosity from previous fixation”. The MRI scan of the right shoulder reported supraspinatus and infraspinatus tendinopathy with both full sided surface tear and intra-substance tear. There was subdeltoid bursitis and acromio clavicular joint (ACJ) arthropathy and a small local SLAP lesion.
An MRI scan of the left shoulder on 16 August 2018 was reported as showing full thickness near complete tear of both the supraspinatus and infraspinatus. There was atrophy of the muscle bellies, particularly involving the supraspinatus. There was partial-thickness tear of the subscapularis and degenerative labral tear, subacromial bursitis.
An MRI scan of the left shoulder on 30 November 2018 (the day of the subject injury) was reported as showing:
“Moderate subacute bone stress reaction AC joint with mild to moderate AC joint effusion, marrow oedema distal clavicle with intraosseous cystic formation. High grade articular surface partial thickness tear of the previously repaired supraspinatus and anterior/ middle insertional fibres of infraspinatus with medial retraction inferior torn tendon to a level just lateral to the acromial tip and involvement of approximately 80% of the tendon thickness. The residual inserting posterior insertional fibres of infraspinatus demonstrate severe insertional tendinopathy. Mild to moderate supraspinatus and infraspinatus muscle atrophy. Moderate chronic scar insertional fixes of subscapularis thought to be post-operative in nature. Moderate chondral wear anterior one-half of the glenoid.”
An MRI scan of the right shoulder on 19 December 2018 was noted by the Medical Assessor as showing:
“Reattached supraspinatus, infraspinatus with retear with full thickness component and contiguous delaminating articular surface component of the tendons with involvement of anterior to posterior insertional fibres of reattached infraspinatus and posterior and to a lesser extent, middle insertional fibres of supraspinatus. The more medially displaced articular surface component of the torn tendons lie just lateral to the AC joint and there is mild supraspinatus, infraspinatus and teres minor muscle atrophy. Moderate to severe subscapularis insertional tendinopathy with low signal intensity change superficial to the tendon which may represent an element of calcific insertional
tendinopathy. In some of the images the region looks to have a thread and be a screw (T2 sag image 26, PD FAT SAT axial series 3 image 11). Intra articular course of long head of biceps not well visualised. ? screw source is biceps tenodesis screw.”
The Medical Assessor noted that, following the left shoulder arthroscopic repair, the MRI scan of 3 July 2019 showed:
“•     Status post supraspinatus and infraspinatus tendon repairs, superior labral repair and biceps tenodesis.
·        Marked thinning of the distal supraspinatus tendon, however, fibres extend to the level of the anchors at the greater tuberosity.
·        Intact infraspinatus repair.
·        Moderate tendinosis of the tenodesed long head of biceps tendon within the biceps groove.
·        Small to moderate effusion in the subacromial/subdeltoid bursa.
·        Moderate AC joint arthrosis.”.
The report of the MRI scan of the left shoulder and 16 August 2018 showed atrophy of the muscle bellies, particularly involving the supraspinatus which the Panel accepts indicates long-standing problems with the left rotator cuff.
Similarly, the report of the MRI of the right shoulder on 19 December 2018 also showed mild supraspinatus, infraspinatus and teres minor[15] muscle atrophy, again indicating long-standing problems with the right rotator cuff.
[15] “teres minor” is the name of the relevant muscle and not an indication of degree of atrophy.
The Panel accepts that the reports of imaging carried out around the time of the subject injury demonstrate changes within both shoulders predating the subject injury which would have, of themselves, given rise to a degree of impairment and would contribute to the overall level of impairment assessed by the Medical Assessor on the day of his examination.
In addition to the muscle atrophy and degenerative changes in the respective shoulders the imaging of the left shoulder following the injury on 13 August 2018 demonstrates a full thickness near complete tear of both the supraspinatus and infraspinatus tendons. The conclusion is that, immediately prior to the subject injury on 30 November 2018 the left shoulder had somewhat greater pathological changes than those demonstrated in the right shoulder. The significance of the additional pathology is partly reduced upon consideration of the report of the MRI scan of the left shoulder on 24 September 2021 which was reported as showing:
“When compared to previous imaging from 03/07/2019, there has been a marked improvement in subacromial/subdeltoid bursitis and there has been evolution of the repair and, in particular, the infraspinatus component with marked improvement in the subacute scar, now entirely chronic mature scar with healing and maturing of the scar of the attenuated repaired supraspinatus. Previously, there was mild supraspinatus and infraspinatus muscle atrophy which, if anything, has improved.”
The Panel is satisfied that, immediately prior to the subject injury, the evidence establishes a pre-existing condition in each of Mr Szymanski’s shoulders extending back to 2002. The nature and extent of the condition is shown by the radiological investigations. In addition, there was a previous injury on 13 August 2018 which was still under treatment at the time of the subject injury.
The nature and extent of the pathology in the shoulders was of a nature which would impair strength and movement of the arms and contribute to the overall level of impairment assessed by the Medical Assessor.
The Panel notes the report of Dr Endrey-Walder dated 12 October 2020. Dr Endrey-Walder assessed the right upper extremity as suffering 5% WPI. He deducted 1/10 which he said “may be attributable to pre-existing pathology”. Dr Endrey-Walder assessed the left upper extremity as suffering 4% WPI and again deducted one tenth as attributable to pre-existing pathology.
Dr Endrey-Walder’s assessments of impairment support the findings of the Medical Assessor’s assessment of overall impairment based on range of motion. However, the Medical Assessor disagreed with Dr Endrey-Walder as to the extent of the deduction pursuant to s 323, making a deduction respect of the left shoulder equivalent to one half and, in the right shoulder, equivalent to two fifths. Dr Bosanquet assessed a contribution of one half to the impairment in each shoulder.
Despite the injury to the left shoulder in August 2018 it appears that Mr Szymanski was able to continue to work as a plasterer until the subject injury in November 2018. Having regard to Mr Szymanski’s statement, the reports of Dr Herald and the reports of the images and scans in evidence, it is evident that the pre-existing condition in the respective shoulders and the injury in August 2018 to the left shoulder contributed to a significant extent to the impairment assessed in the respective upper extremities upon examination by the Medical Assessor.
Having regard to the pathology disclosed in the radiological and ultrasound investigations from 2008 to 2021, the observations contained in Dr Herald’s reports from and after October 2008 and his findings at operation on the left shoulder in December 2008[16] and the right shoulder in August 2009[17], the Panel concludes that the pre-existing pathology in the left shoulder was somewhat greater than the pathology in the right shoulder immediately prior to the subject injury. Although it is not possible to put a precise figure on the extent to which there should be a deduction pursuant to s 323 of the 1998 Act, the Panel concludes that a deduction of 1/10 would be at odds with the evidence and that a deduction of one half in respect of the left shoulder and two fifths in respect of the right shoulder is appropriate on the evidence.
[16] ARD, page 49.
[17] ARD, page 57.
The Panel accordingly assesses Mr Szymanski as suffering 4% WPI as a result of injury to the left shoulder. One half of that impairment is assessed as due to the pre-existing condition and previous injury to give 2% WPI as a result of the subject injury. Mr Szymanski is assessed as having 5% WPI as a result of injury to the right shoulder. Two-fifths of that impairment is assessed as due to the pre-existing condition to give 3% WPI as a result of the subject injury.

Left lower extremity (heel).

The appellant submits that the Medical Assessor that his assessment of the impairment of the injury to the left heel, asserting that the Medical Assessor had erred in finding that there was no muscle atrophy in the left calf. The appellant noted the finding of 2.5cm loss of circumference in the left calf by Dr Endrey-Walder noted in his report of 12 October 2020. The appellant also sought to rely upon the photograph of the left calf which the Panel has declined to admit into evidence.
The respondent, as noted above, submitted that the photograph was of no probative value and the Medical Assessor had clearly measured the respective calves, finding no difference and hence no impairment.
The Medical Assessor upon examination of the lower limbs noted that the circumference that midcalf level was 40cm in both legs, the active range of motion was within normal limits and there was no basis for a diagnostic based estimate. The Medical Assessor reported that, assessed in respect of peripheral nerve injury, a grade III classification was reasonable yielding lower extremity impairment of 1% which converted to 0% WPI under Table 17-3 at page 527 of AMA 5.
It is clear from the MAC that the Medical Assessor measured the calves at the same level in both lower limbs and concluded that there was no wasting. The fact that Dr Endrey-Walder had obtained a different result more than a year earlier could not displace the Medical Assessor’s findings on examination.
The Panel does not accept the appellant’s submissions in respect of this body part and this ground of appeal fails.
The appellant’s appeal is successful with respect to the way in which the Medical Assessor approached the deduction pursuant to s 323 in the respective assessments of the upper extremities. However, upon review of the evidence the Panel has arrived at a conclusion which results in the same assessment as that of the Medical Assessor. The MAC however is technically incorrect with respect to the proportion of the assessment to be deducted pursuant to s 323 of the 1998 Act and this requires correction. Accordingly, the Appeal Panel has determined that the MAC issued on 12 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W410/22
Applicant:	Andrew Szymanski
Respondent:	AGS Plasterboard Supplies Pty Limited

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 Dr Todd Gothelf 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 NSW workers compensation guidelines	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. Cervical spine	30/11/2018	Chapter 1, chapter 4, 4.17 – 4.23	Chapter 15, 15.11, 15.12, 15.13	0%	not applicable	0%
2. Left upper extremity (shoulder)	30/11/2018	Chapter 1, chapter 2, 2.3--2.8,	Chapter 16, 16.4a, 4b, figures 16-40 -16-46	4%	One half	2%
3. Right upper extremity (shoulder)	30/11/2018	Chapter 1, chapter 2, 2.3--2.8,	Chapter 16, 16.4a, 4b, figures 16-40 -16-46	5%	Two fifths	3%
4. Left lower extremity (heel)	30/11/2018	Chapter 1, chapter 3, 3.2- 3.7,	Chapter 17, Table 17-37	0%	Not applicable	0%
Total % WPI (the Combined Table values of all sub-totals)					5%

[2022] NSWPICMP 357

14 September 2022