Tran v Beak & Johnston Pty Ltd

[2025] NSWPICMP 804

DETERMINATION OF APPEAL PANEL
CITATION:	Tran v Beak & Johnston Pty Ltd & Ors [2025] NSWPICMP 804
APPELLANT:	Quang Thanh Tran
RESPONDENT:	Beak & Johnston Pty Ltd, Adecco Industrial Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	17 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) erred by not assessing the appellant had permanent impairment relating to his shoulders, thoracic spine, and right hip; Held – the findings of the MA from his examination of the appellant were such that the appellant did not have any rateable impairment of his right hip and thoracic spine and so consequently MA did not err by assessing the appellant had 0% whole person impairment (WPI) relating to those body parts; the MA’s assessment that the appellant had 0% WPI relating to his shoulders was based on the MA finding the appellant did not suffer an injury to his shoulders, in the circumstance where there was no dispute between the parties that he had; MA erred in that regard; appellant re-examined; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 23 June 2025 Quang Thanh Tran, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
   26 May 2025.

2. 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):

   ·        deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;

   ·        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, and

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. 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 (AMA5).

RELEVANT FACTUAL BACKGROUND

1. From 6 November 2013 the appellant worked as a casual process worker in a sausage production line, initially with Adecco Industrial Ltd, and then with Beak & Johnston Pty Ltd, the respondent, for whom he worked between 25 August 2014 and 2 September 2015. His employment as such required him to work in a confined space between sausage machines, and to lift, carry, hold and twist meat tubs containing between 25kg and 40kg of product. He was also required to pull heavy bins of meat weighing between 70kg and 180kg.

2. His work as a sausage process worker resulted in his suffering an injury that affected his thoracic spine, lumbar spine, right and left shoulders, and right hip.

3. The appellant claimed compensation for permanent impairment from his injury. He relied on a report from orthopaedic surgeon Dr Medhat Guirgis dated 5 October 2023 that his then solicitors had obtained on his behalf. The diagnosis of the appellant’s injury that Dr Guirgis advised in his report was, in substances, that the appellant had a post-traumatic mechanical derangement of his thoracic and lumbar areas, rotator cuff syndrome in the right and left shoulders with impingement, and right hip syndrome. Relevant to an issue raised in the appellant’s appeal, Dr Guirgis did not diagnose that the appellant’s injury insofar as it affected his thoracic spine involved a compression fracture of his vertebra.

4. Dr Guirgis advised that he assessed the degree of the appellant’s permanent impairment from his injury is 20% whole person impairment (WPI), which he advised was a combination of 5% WPI relating to the thoracic spine, 6% WPI relating to the lumbar spine, 3% WPI relating to the left shoulder, 5% WPI relating to the right shoulder, and 4% WPI relating to the right hip.

5. The appellant’s claim was initially refused by the respondent’s insurer. In doing so, it relied on a report it obtained from orthopaedic surgeon Dr Yuk Kai Lee dated 8 January 2023, who advised in his report that he had assessed the degree of the appellant’s permanent impairment from his injury is 10% WPI, which related entirely to the appellant’s shoulders.
   Dr Lee advised he assessed the degree of the appellant’s permanent impairment relating to his lumbar spine and to his thoracic spine is 0% WPI. Dr Lee diagnosed the appellant’s injury, insofar as it affected his spine, is an aggravation of mild disc injury facet joint arthritis. Dr Lee diagnosed the appellant’s injury, insofar as it affected his shoulders, is tendonitis.

6. Following the respondent’s solicitors obtaining a further report from Dr Lee dated
   18 March 2024, in which Dr Lee advised he assessed the degree of the appellant’s permanent impairment relating to his right hip is 3% WPI, the insurer’s solicitors wrote to the appellant’s then solicitors advising that the insurer offered to pay compensation to the appellant 7% WPI to settle his claim for compensation for permanent impairment. Dr Lee in his report of 18 March 2024 advised he diagnosed the appellant had trochanteric bursitis in his right hip.

7. Ultimately, the appellant lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 4 January 2025, to initiate proceedings in the Commission seeking the Commission determine his claim for compensation. Following the respondent lodging a reply to that, the matter was referred to a Principal Member of the Commission, namely Ms Josephine Bamber, who on 10 March 2025 made the following direction, with the consent of the parties:

   “In relation to the lump sum claim against the first respondent, Beak & Johnston Pty Ltd, is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:

   a. Date of injury: 4 May 2015 (deemed)

   b. Body Systems: lumbar spine, thoracic spine, left upper extremity (shoulder), right upper extremity (shoulder) and right lower extremity (hip).

   c. Method: whole person impairment.

   d. Documents referred: Application to Resolve a Dispute and Reply.”

8. A delegate of the President of the Commission duly issued a referral to the Medical Assessor on 11 March 2025. The Medical Assessor examined the appellant on 26 May 2025. In the MAC he issued on 26 May 2025 the Medical Assessor certified he assessed the degree of the appellant’s permanent impairment from his injury is 7% WPI, which consisted entirely of permanent impairment relating to the appellant’s lumbar spine. That is to say, the Medical Assessor assessed the degree of the appellant’s permanent impairment relating to his thoracic spine, right upper extremity, left upper extremity and right lower extremity is 0% WPI.

9. The Medical Assessor recorded in the MAC that he made the following findings from his examination of the appellant:     

   “Mr Tran has a very interesting presentation. He undresses and dresses without too much of a problem, and walks with a rather slow hesitant gait with both lower limbs in external rotation, and he is unable to walk with his toes pointing straight forward. He also has a fairly bizarre flapping of both arms which he feels enables him to keep his balance, and the movements of his arms are fairly constant, and he takes them away from his body up to 60° of abduction.

   He is able to walk on heels and toes with some encouragement but shows significant restriction of back movement in all directions, only getting his fingertips as far as his knees in flexion with no extension being present. Lateral flexion to either side is significantly restricted.

   On checking thoracic spine movements when flexed forward at the waist, rotation to either side is equal and unrestricted.

   Straight leg raising became uncomfortable at 70° bilaterally, reflexes are all present and equal, and sensation is intact. He does have an area of hypoaesthesia to pinprick of the medial aspect of his left leg but there is fairly extensive scarring in this area which followed a motor vehicle accident at the age of 19. I would not relate this area of sensory loss to his more recent problems.

   It is very interesting to note then that Mr Tran has satisfactory power of flexion and extension, inversion and eversion of his left foot and ankle, but all these movements were very weak on the right side. He also seems to have significant weakness of flexion and extension of both knees, and when sitting on the examination couch he felt that he was unable to elevate either thigh off the surface of the couch (that is, unable to flex either hip). He does however have satisfactory power of abduction and adduction of his hips.

   Mr Tran complained of discomfort to palpation in the lower lumbar region and there is no particular discomfort with axial loading.

   Mr Tran has a full range of pain free hip movements bilaterally and there was no discomfort to palpation over either greater trochanter today. Peripheral pulses are present and equal.

   He does have a satisfactory range of cervical movements and on examination of his shoulders he was only prepared to abduct and flex to 90°, whereas rotational movements in a dependent position were full, normal and pain free. When he attempts to elevate his arms he seems to be restricted by weakness rather than pain.

   Reflexes in his upper limbs are present and equal and satisfactory grip strength was present bilaterally.”

10. The Medical Assessor noted that a CT scan of the appellant’s thoracolumbar spine that was on 5 June 2021 revealed a shallow broad based disc bulge at the L4/5 level and that an MRI scan done on 18 February 2019 revealed mild degeneration and a small broad based disc protrusion at the L4/5 level but no neurological involvement. The Medical Assessor noted that an investigation of appellant’s thoracic spine suggested mild compression fractures of T6, T7 and T8 but the Medical Assessor concluded these were long standing and probably due osteoporosis. The Medical Assessor commented that there is nothing to suggest that appellant suffered acute fractures of his vertebrae as a result of his employment.

11. Under a subheading in the MAC titled “Summary of Injuries and Diagnosis”, the Medical Assessor said the following:

    “Mr Tran developed pain in his lower lumbar region with referred pain into both lower limbs, and symptoms have persisted since then. In addition, he is complaining of discomfort in relation to his right hip and both shoulder regions, but these latter symptoms only came on in approximately 2018.

    Please note that I am unable to account for Mr Tran’s presentation on a purely orthopaedic basis and there would seem to be an underlying generalised neurological condition as evidenced by his gait, the flapping of his arms, the fairly diffuse weakness of his lower limbs, but with no muscle wasting.

    I do note that Mr Tran saw Dr G Needham on 25 August 2022 noting a history of chronic back pain with osteoporosis, and ‘past thoracic vertebral crush fracture’. He noted the unusual gait and the reduced abduction of both shoulders and felt that further assessment of his abnormal gait was indicated, and ordered investigations on him. Mr Tran was unable to go ahead and have these investigations because he could not afford them.

    Mr Tran’s symptoms are suggestive of ‘claudication’ but this is not spinal claudication noting the investigations, and not vascular, noting the palpable peripheral pulses. The most likely explanation therefore would be neurological.”

12. With respect to his assessment the appellant’s degree of permanent impairment relating to his lumbar spine is 7% WPI, the Medical Assessor explained he made that assessment by correlating the appellant’s signs with the criteria of DRE category 2 of AMA5, which provides for an assessment within the range of 5-8% WPI.  The Medical Assessor explained that he added 2% WPI for the interference of the appellant’s lumbar spine injury on his activities of daily living.

13. With respect to his assessment that the degree of the appellant's permanent impairment relating to his thoracic spine is 0% WPI, the Medical Assessor noted that he found the appellant had a symmetrical range of movement and only mild intermittent symptoms in his thoracic spine and based on that he found the appellant had no residual impairment.

14. With respect to his assessment that the appellant had 0% WPI relating to the shoulders, the Medical Assessor noted that the appellant had restricted range of movement. The Medical Assessor considered however, that because the appellant’s “symptoms only came on in 2018, some
    three years after he had stopped working” the appellant had no residual impairment of his upper extremities resulting from his injury. The Medical Assessor commented that he was “fully aware that I had been asked to assess impairment of his shoulders” but said that “there is no way I can relate the ongoing problems with his shoulders to the nature and condition of his employment”.

15. The Medical Assessor explained, regarding his assessment that the degree of the appellant’s permanent impairment relating to his right hip is 0% WPI, that the appellant had a full range of hip movement and had no tenderness to palpation over his trochanter.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel found that, for reasons explained below, the MAC contained a demonstrable error which it would need to correct. To correct that error, the Appeal Panel needed to examine the appellant again with respect to his range of movement of his shoulders. The Appeal Panel appointed one of its Medical Assessor members, namely Medical Assessor Todd Gothelf, to conduct that examination, which he did on 19 September 2025. His report to the Appeal Panel is copied below.

3. As part of his application to appeal against the medical assessment the appellant sought that the Appeal Panel receive into evidence the reports on three investigations he had undergone, being an ultrasound of his right shoulder on 27 May 2025, an ultrasound of both of his shoulders done on 18 January 2018 and ultrasound done of his right hip on
   18 November 2022. During its preliminary review of the medical assessment the Appeal Panel considered whether it should receive into evidence these documents.

4. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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. 

5. The ultrasound of the appellant’s right shoulder on 27 May 2025 is evidence that could not have reasonably been obtained by the appellant prior to the MAC, noting that the MAC was issued on 26 May 2025 and the ultrasound was done on 27 May 2025. The Appeal Panel accepts that document into evidence.

6. The report on the ultrasound of the appellant’s right hip done on 18 November 2022 predates the medical assessment. The document was available to the appellant prior to the medical assessment. Indeed, the Appeal Panel notes that Dr Guirgis had this document at the time he provided his report dated 5 October 2023. In any event, even if the appellant at the time he initiated proceedings in the Commission did not have physical possession of that document, it is a document that he could reasonably have obtained before the medical assessment. The document also does not provide any evidence that would substantiate any of the grounds for appeal on which the appellant has relied. The Appeal Panel consequently does not receive that document into evidence.

7. The report on the ultrasound of the appellant’s shoulder done on 18 January 2018 was available to the appellant prior to the medical assessment. Again, that document had also been provided to Dr Guirgis. The document cannot therefore be admitted into evidence via s 328(3) of the 1998 Act. The Appeal Panel however notes it has power by combination of s 324(1)(b) and (4) to call for reports on radiological investigations. As already said, the Appeal Panel has found an error in the MAC regarding the Medical Assessor’s assessment of the appellant’s permanent impairment relating to his shoulders, which the Appeal Panel must correct. The report of the ultrasound of the appellant’s 18 January 2018 has some relevance to that task and, for the sake of thoroughness, the Appeal Panel would call for that document. It is convenient therefore for the Appeal Panel to accept into evidence the document the appellant has produced as part of his appeal against the medical assessment.

EVIDENCE

1. 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. 

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. Paraphrasing the appellant’s submissions, to provide a summary of them, they are that there has been deterioration of the condition in his right shoulder that occurred when he opened his kitchen window on or around 25 May 2025 and that deterioration is confirmed by the ultrasound of his right shoulder on 27 May 2025. The appellant further submitted that the Medical Assessor was wrong to conclude that his shoulders were not injured in his employment and consequently wrong to conclude that the restricted range of motion of his shoulders was not related to his injury.

3. The appellant submitted that the Medical Assessor’s assessment of his impairment of his thoracic spine and right hip involved error and did not accord with the radiological evidence or with opinions with Dr Lee and Dr Guirgis.  

4. In reply, the respondent submitted that the appellant’s submissions do not substantiate either of the grounds for appeal listed in ss 327(3)(a) and 327(3)(b). The respondent submitted the appellant’s submissions do nothing more than express his disagreement with the Medical Assessor’s assessment. The respondent highlighted that the appellant appeared “to be conceding that he injured his right shoulder at home”.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

Shoulders

1. There is no contest between the parties that the appellant suffered an injury to his shoulders because of the work he did over the course of time in a sausage production line. Dr Guirgis, on whose report the appellant relied, diagnosed the appellant’s injury as rotator cuff syndrome with impingement. Dr Lee, on whose report the respondent relied, diagnosed the appellant’s injury as tendonitis in his shoulders.

2. Each of those doctors found that the appellant had restricted range of movement of his shoulders due to his injury. Both attributed the appellant’s restricted range of motion to the injury they diagnosed.

3. In substance, the Medical Assessor concluded that the appellant did not suffer an injury to his shoulders and he came to this conclusion because the appellant did not report symptoms in his shoulders until some years after he had concluded his employment with the respondent.

4. Consistent with the appellant’s submissions, the Medical Assessor was required to accept the appellant had suffered an injury to his shoulders. This is simply because that was the appellant’s case, which the respondent did not dispute. No issue was raised that the appellant suffered an injury to his shoulders. That being the case, it was not the Medical Assessor’s role to conclude the appellant did not suffer injury due to the nature of the work the appellant did on a sausage production line. The restricted range of movement the appellant experienced in his shoulders at the time the Medical Assessor examined the appellant could only be due to that. Hence, the Medical Assessor ought to have attributed the impairment the appellant had due to his restricted range of movement to the appellant’s injury. The Medical Assessor not doing so amounts to an error on his part, such that the MAC contains a demonstrable error.

Thoracic spine

1. Appeal Panel finds that the Medical Assessor made no error with respect to his assessment of the degree of the appellant’s permanent impairment relating to his thoracic spine and that the Medical Assessor applied the correct criteria to make his assessment of the appellant’s degree of permanent impairment relating to his thoracic spine. The Medical Assessor found from his examination of the appellant’s thoracic spine that the appellant’s movements were equal and unrestricted and that the appellant only suffered mild intermittent symptoms. The Medical Assessor did not record from his examination the appellant had any significant clinical findings, or that the appellant exhibited any muscle guarding. There is not within the evidence anything that substantiates the appellant has neurological impairment relating to his thoracic spine. A CT scan of the thoracolumbar done on 25 June 2021 revealed compression deformities at T8-T6, but the Medical Assessor was correct to conclude that these were long standing and unrelated to the appellant’s employment. Further, the case appellant advanced regarding his injury insofar as it involved his thoracic spine was based on Dr Guirgis’ report and this was that his injury was post traumatic mechanical derangement. Essentially, his case was that his injury insofar that it related to his thoracic spine was an aggravation of
   pre-existing and degeneration.

2. The Medical Assessor was accordingly correct to correlate his findings from examination and the appellant’s symptoms with the criteria for DRE thoracic category I of Table 15-4. The Medical Assessor’s findings from his examination simply did not attract a rating of impairment under Table 15-4 of AMA5.

Right hip

1. The Appeal Panel also considers that the Medical Assessor did not err with respect to his rating of the appellant’s impairment relating to the appellant’s right hip and that the Medical Assessor applied the correct criteria to assess the appellant’s impairment relating to his right hip. The Medical Assessor’s findings were that the appellant had a full range of pain free hip movement bilaterally with no discomfort to palpation over trochanter and had equal and present peripheral pulses. Given those findings the appellant did not at the time the Medical Assessor examined him exhibit any signs of trochanteric bursitis and hence did not attract a rating under Table 17-33 of AMA5. As the Medical Assessor explained, given that the appellant exhibited no restrictions of movement of his right hip and no pain and no other signs, there was no basis by which the Medical Assessor could rate the appellant as having an impairment relating to his right hip.

Section 327(3)(a)

1. The appellant submitted in substance that there has been a deterioration of his right shoulder since the Medical Assessor examined him. The ultrasound that was done of his right shoulder the day after the MAC reveals a full thickness tear of supraspinatus. The appellant in his written submission indicated that around 25 May 2025 he closed an open kitchen window. It would seem that the appellant is suggesting that he experienced an increase in right shoulder symptoms because of that action.  it is likely the case that, against the background of the appellant having degenerative changes in his right shoulder, that action resulted in a complete tear of his supraspinatus.

2. This ground for appeal however can only be established if the deterioration in the appellant’s condition resulted in an increase in the degree of his permanent impairment from that which the Medical Assessor found the appellant had. The Medical Assessor’s findings from his examination of the appellant’s right shoulder did not contain enough detail for the Appeal Panel to know the degree of the appellant’s permanent impairment at the time the Medical Assessor examined him and, hence, it cannot be known whether the event that occurred on or around 25 May 2025 resulted in an increase in the degree of the appellant’s permanent impairment.

3. Consequently, the appellant does not establish this ground for appeal.

4. For completeness however, the Appeal Panel notes that by correcting the error the Medical Assessor made with respect to his conclusion regarding the appellant’s injury to his shoulder, the appellant’s restricted range of movement of his shoulders will be attributed to his injury.  In other words, the failure of the appellant to establish this ground is of no real moment.

Section 327(3)(b)

1. The question an Appeal Panel must ask itself when considering whether the ground for appeal provided in s 327(3)(b) of the 1998 Act is established, is whether the additional information would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.[1]

   [1] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [13].

2. The additional relevant information on which the appellant’s relies, being the report of the ultrasound of his right shoulder he had on 27 May 2025, does not enable the Appeal Panel to come to a different conclusion than that reached by the Medical Assessor. As said above, the Medical Assessor was wrong to conclude that the appellant did not suffer an injury to his right shoulder. The Appeal Panel has reached a different conclusion than the Medical Assessor on that issue and to repeat that is because there was no dispute between the parties that the appellant had injured his right shoulder. The additional information is neutral with respect to that issue. The additional information merely indicates that the appellant’s right shoulder condition has worsened, against the background of his having suffered a work injury to his right shoulder. The additional information does not relate to the Medical Assessor’s error in finding that the appellant did not suffer an injury to his right shoulder.  

Correction of the error

1. The findings the Medical Assessor recorded in the MAC from his examination of the appellant’s shoulders are insufficient to enable the Appeal Panel to correct the error the Medical Assessor made. This is because they do not detail what the appellant’s range of movement is along all the planes of motions in his shoulders. It is for that reason that the Appeal Panel determined that Medical Assessor Gothelf should reexamine the appellant. Medical Assessor Gothelf’s report to the panel follows:

   “1.    HISTORY RELATING TO THE INJURY

   ·Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   As per Dr Pillemer:

   He recalls originally developing discomfort in his low back on 8 May 2014 when he was pulling a very heavy bin and he recalls having reported this at the time and saw his general practitioner. He says he was able to continue working and then went onto restricted duties in August 2014, and then he had a further increase in his back pain. He once again saw his general practitioner, and he was eventually terminated on 2 September 2015. In addition to the pain in his back he also gets pain radiating down both lower limbs, and on the right side into his right foot, and on the left side as far as his left calf.

   As far as treatment is concerned he saw his general practitioner and has seen numerous specialists over the years, and has had tablets, physiotherapy and hydrotherapy, and has also had injections for osteoporosis. Importantly he informed me that he was sent to see a neurologist in August 2022, who ordered blood tests on him, but these were too expensive and he was unable to go ahead and have these tests carried out.

   ·Present treatment:

   At the moment he is taking Lyrica and also tablets for raised blood pressure and raised cholesterol, and he still has treatment for his osteoporosis. He also gives himself massages.

   ·Present symptoms:

   Mr Tran’s main symptoms started in 2014/2015, with pain in his back radiating down both lower limbs as noted above. These symptoms have persisted.

   Interestingly enough, things seem to have deteriorated significantly in 2017 when he developed problems with balance and he found that he was only able to walk about 70metres and then he would have to stop and rest before being able to walk again. He also found difficulty with lifting his shoulders with these symptoms having come on in about 2018.

   Mr Tran describes his back and leg discomfort as being constantly present and ranging between 5-7/10, and are aggravated by sitting or standing for long, negotiating stairs or simply moving his body. He does get some relief by lying down and carrying out his massages.

   He also indicates discomfort in his right hip at this stage, indicating the lateral hip area and right buttock, and these symptoms are present on a daily basis.

   He has ongoing problems with both shoulder regions being unable to elevate his shoulders, and as noted these symptoms have been present since about 2018.

   He also gets discomfort in his mid-back and on specific questioning this seems to occur on an average of twice a week and might last up to an hour at a time. These symptoms are not particularly significant.

   ·Details of any previous or subsequent accidents, injuries or condition:

   Mr Tran had no problems prior to the onset of symptoms in May 2014 and had not had any injuries since then, although as noted symptoms deteriorated significantly after 2017.

   ·General health:

   He has raised blood pressure and raised cholesterol, and is also being treated for osteoporosis, but feels he is otherwise well

   ·Work history including previous work history if relevant:

   After reporting his symptoms he went onto restricted duties and was eventually terminated on 2 September 2015 and has not worked since then. He does not feel that he is capable of getting back to any gainful employment at this stage.

   ·Social activities/ADL:

   Mr Tran feels he can only walk for 40 metres and then has to stop and rest because of pain in his back and legs. After resting for a while and massaging his legs he can walk again. On specific questioning he feels that back in 2017 he could walk for say 70 metres and this distance now seems to be decreasing. He can still drive but not for long distances.

   He lives alone and has considerable difficulty with housework and he feels his place is very dirty. He has a 5kg lifting limit when he goes shopping. He manages with his self-care but with difficulty.

   1.     FINDINGS ON PHYSICAL EXAMINATION

   The physical examination was performed in the presence of the interpreter.

   Passive range of motion formed part of the clinical examination to ascertain clinical status of the joint.  For the purposes of impairment calculation, only active movement (i.e. performed under the voluntary control of the examinee, without physical input by the examiner) was measured and recorded below.  Determinations were made in accordance with the patient’s apparent full effort and cooperation. 

   Mr Tran is a 60-year-old male right hand dominant whose height was 173cm and weight was 80kg (BMI 26.7- Overweight). He was observed to remove his jack and shirt using both arms and was able to lay his jacket on the back of his chair and was in no apparent distress.   

   Examination of the Cervical Spine

   The cervical posture was normal.  There was no 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 guarding or spasm. 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.  There was no cervical asymmetrical loss of motion.  

   Muscle strength was 5/5 in all dermatomal muscle groups. Sensation was intact to light touch and pin prick in all dermatomal distributions.  Reflexes in the biceps, triceps, and brachioradialis were equal.

   There was no wasting or swelling of the upper limbs, and the circumferential measurements were as follows:

Right	Left
Upper Arm	33cm	33cm
Mid-Forearm	28cm	28cm

Examination of the Upper Limbs

There was a full range of movement of elbows and wrists of both the upper limbs in all dimensions without crepitus, muscular spasm or tenderness.  Power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal. 

Active range of motion was measured with a goniometer:

Upper Limb

Shoulder	Right(0)	IMP	Left(0)	IMP	Normal(0)
Flexion	120	4	120	4	180
Extension	50	0	50	0	50
Abduction	110	3	110	3	170
Adduction	30	1	30	1	40
Internal Rotation	80	0	80	0	80
External rotation	80	0	80	0	60

The right shoulder had a smooth passive range of motion with some restriction of passive forward flexion to about 130 degrees.  There was normal rotator cuff strength. There were no reported impingement signs.

The left shoulder had a similar examination to the right shoulder. There was a smooth passive range of motion with some restriction of passive forward flexion to about 130 degrees.  There was normal rotator cuff strength. There were no reported impingement signs.

Mr Tran was observed to use both arms freely after the examination to put on his shirt, placing arms overhead slightly with 120 degrees of forward flexion.

2.     DETAILS AND DATES OF SPECIAL INVESTIGATIONS

18 January 2018 – Bilateral Shoulder Ultrasound

Bilateral bursitis and shoulder impingement syndrome.

5 April 2018 – Ultrasound Right Hip

Greater trochanteric bursitis confirmed.

25 June 2021 – CT Thoracolumbar Spine and Lumbar Spine

Probable Osteopenia noted.

As above T-spine compression deformities mainly from T6 to T8 noted and could be recent or long-standing.

Lumbar spine L4-L5 disc at least minor progressive bulging more on the LEFT could also relate to local pain.

8 September 2022 – Bone Scan

No scan evidence of recent or healing fractures in the thoracic or lumbar spine. A non-specific, focus of increased uptake with mild sclerosis, is seen in the left 6th rib laterally. CT correlation is recommended.

There is lumbar facet joint arthropathy, most active in the right L5/S1 facet joint, and to a lesser degree in the right L4/5 facet joint. Mild cervical facet joint arthropathy is noted in the left C5/6, left C6/7, and right C7/Tl facet joints. These may be amenable to CT-guided steroid injections. No active arthropathy in the thoracic facet joints.

Mild anterior intervertebral joint arthropathy is seen at the C5/6, T3/4, and T6/7 levels.

Mild arthropathy in the left T5, left T7, and right T8 costo-vertebral joints.

Degenerative change is noted in the shoulders, SC joints, elbows, and wrists. Features of mild right gluteal enthesopathy / trochanteric bursitis, are also seen.

27 May 2025 – Ultrasound Right Shoulder

There is full-thickness tear of the supraspinatus tear. Mild acromioclavicular hypertrophic osteoarthritis is shown.

3.   SUMMARY

·summary of injuries and diagnoses:

Mr Tran is a 60 year old male who sustained an injury at work 4 May 2015.  As a result of the subject injury Mr Tran has the following diagnoses:

·Right shoulder full thickness rotator cuff tear an ultrasound 27 May 2025 indicated a full thickness rotator cuff tear. Mr Tran reported persistent pain.

·Left shoulder bursitis and impingement syndrome.  An ultrasound 18 January 2018 revealed bursitis and impingement syndrome.

·consistency of presentation

The history is consistent with the physical examination findings and is consistent with the documentation provided.  The diagnosis of injuries is consistent with the mechanism of injury and is consistent with the current status of the condition.  

Impairment is to be determined using the NSW Worker’s Compensation Guidelines for the evaluation of permanent impairment, Fourth edition, 1 March 2021 (the Guides), and the AMA Guides to Evaluation of Permanent Impairment 5^th Edition (AMA5).   

Right Upper Extremity (shoulder)

Figures 16- 40, 43, 46 pp 476-479 AMA5 are used for shoulder impairment.  The measured active range of motion resulted in an 8% UEI. 

Table 16-3 p 439 AMA5 is used to convert 8% UEI to 5% WPI.

Deductions

There was no evidence of a pre-existing condition and therefore no deductions applied.

Left Upper Extremity (Shoulder)

Figures 16- 40, 43, 46 pp 476-479 AMA5 are used for shoulder impairment.  The measured active range of motion resulted in an 8% UEI.

Table 16-3 p 439 AMA5 is used to convert 8% UEI to 5% WPI.”

1. The Appeal Panel accepts and adopts the history Medical Assessor Gothelf has detailed in his report and also accepts and adopts the findings Medical Assessor Gothelf made from his examination of the appellant.

2. The Appeal Panel also considers that the ratings Medical Assessor Gothelf made based on his examination of the appellant’s shoulders are correct, and accordingly the Appeal Panel accepts those assessments.[2]

   [2] Coca Cola Euro Pacific Partner API Pty Ltd v Pombino [2024] NSWCA191 at [88].

3. For completeness the Appeal Panel notes that the full thickness tear to the appellant’s right supraspinatus that is revealed in the ultrasound done on 27 May 2025 occurred against the background of the appellant having suffered an injury in that joint. The likelihood is that had the appellant not suffered injury the full thickness tear would not have occurred. In any event, his work injury has been exacerbated by the incident that occurred on or around
   

   [3] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA321 at [55].

   25 May 2025. Noting that common law principles apply, any further restriction of movement consequent upon that event are to be attributed to the appellant’s workplace injury.[3]

4. The Appeal Panel also notes for the sake of completeness that Medical Assessor Gothelf’s measurements of the appellant’s range of movement of his shoulders were similar to that which Dr Lee found from his examination but differed slightly from that which Dr Guirgis found. Dr Guirgis found the appellant had 170° of forward flexion and 140° of abduction, which was greater than that which both Medical Assessor found and also that Dr Lee found. Medical Assessor Gothelf reported to the Appeal Panel that he measured the motion of the appellant’s movements of his shoulder three times and he is satisfied that his findings relating to that are correct. Hence, the Appeal Panel has concluded that Medical Assessor Gothelf’s findings are reliable and that the range of motion method is the best method by which to rate the appellant’s impairment.

1. The Appeal Panel also observes that there is no evidence before it that reveals the appellant had any condition in his shoulders preceding the commencement of his employment as a sausage production line worker or had suffered an injury to his shoulder prior to that time.

2. For these reasons, the Appeal Panel has determined that the MAC issued on 26 May 2025 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:	W109/25
Applicant:	Quang Thanh Tran
Respondent:	Beak & Johnston Pty Ltd, Adecco Industrial Pty Ltd

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 Roger Pillemer 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)
Lumbar spine	4/05/2015	Chapter 4	Table 15-3	7%	-	7%
Thoracic spine		Chapter 4	Table 15-4	0%	-	0%
Right upper extremity (shoulder)		Chapter 2	Chapter 16 Table 16-3	5%	-	5%
Left upper extremity (shoulder)		Chapter 2	Chapter 16 Table 16-3	5%	-	5%
Right lower extremity (hip)		Chapter 3	Chapter 17	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					16%