Tran v De Angelis t/as Access Metal Fabrication
[2022] NSWPICMP 497
•6 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tran v De Angelis t/as Access Metal Fabrication [2022] NSWPICMP 497 |
| APPELLANT: | Van Dinh Tran |
| RESPONDENT: | Pasquale De Angelis t/as Access Metal Fabrication Pty Ltd |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 6 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appellant submitted that the assessment of the bilateral shoulder impairment was done on the basis of incorrect criteria and/or there was a demonstrable error as it was not clear if the Medical Assessor (MA) assessed range of motion in each shoulder on each plane of movement; a worksheet was not included in the Medical Assessment Certificate (MAC); it was not clear that a goniometer or inclinometer was used; MA found that there was a full range of shoulder movements and no impairment in either upper extremity; use of worksheet not mandatory; use of goniometer not clinically indicated; Held – Panel found no error and confirmed MAC. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 October 2022 Van Dinh Tran (Mr Tran/the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 September 2022. The MAC was subsequently amended on 10 October 2022.
The respondent to the appeal is Pasquale Dr Angelis t/as Access Metal Fabrication (the respondent).
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):
· availability of additional relevant information pursuant to s 327(3)(b) of the 1998 Act,
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and· the MAC contains a demonstrable error pursuant to s 327 (3)(d) of the 1998 Act.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 April 2016 reissued on 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 Tran sustained an injury to his neck, back, left arm, left shoulder, left leg and head on 28 November 2000 in the course of his employment with the respondent as a labourer. He developed a consequential condition in his right arm and right shoulder as a result of the injuries on 28 November 2000.
Mr Tran lodged an Application for Assessment by a Medical Assessor in relation to whether the degree of whole person impairment (WPI) was more than 20% (s 32A of the Workers Compensation Act 1987).
The matter was referred to Medical Assessor Yiu-Key Ho, on 5 August 2022 for assessment of WPI of the cervical spine, lumbar spine, left upper extremity, right upper extremity and left lower extremity left lower extremity, the lumbar spine and scarring (date of injury 28 November 2000).
The MA examined Mr Tran on 18 August 2022 and assessed 5% WPI of the cervical spine, 8% WPI of the lumbar spine, 0% WPI of the left upper extremity, 0% WPI of the right upper extremity and 2% WPI of the left lower extremity. This resulted in a combined total WPI of 15% in respect of the injury on 28 November 2000.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
Mr Tran requested that he be re-examined by a MA 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 Tran to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Fresh evidence
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.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC10798-04). 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.”
The appellant seeks to admit the following evidence:
(a) letter to the Personal Injury Commission (Commission) dated 26 September 2022, and
(b) email from the Commission received by the parties on 26 September 2022.
Mr Tran submitted that the additional material should be included in the proceedings as it is relevant, material and probative in determining the appeal and the additional information was not available to Mr Tran before the Medical Assessment.
The respondent objected to this evidence being admitted on the appeal submitting that the further evidence does not go to the degree of impairment but rather the adequacy or otherwise of the assessment by the MA. The respondent argued that Mr Tran did not provide any submissions as to how the material is relevant, material, or probative. The material simply confirmed that Mr Tran’s solicitor made an enquiry as to whether a worksheet was provided and the Commission registry confirmed that the MA did not intend for a worksheet to form part of the MAC. This was immaterial to the findings of the MA that there was no restriction in movement at the shoulder and was of no probative value in determining the degree of permanent impairment. The further material ought not be admitted.
The Appeal Panel noted that the MA examined Mr Tran on 18 August 2022. The Appeal Panel accepted that the documents listed above were not available to Mr Tran before the medical assessment and that the documents could not reasonably have been obtained by Mr Tran before that medical assessment as they came into existence after the examination by the MA. However, the Appeal Panel was not persuaded that these documents were probative to the issues to be determined in the appeal. The Appeal Panel did not accept that the evidence was of such probative value that it is reasonably clear that it would change the outcome of the case.
The Appeal Panel determined that the following evidence should not be received on the appeal:
(a) letter to the Commission dated 26 September 2022, and
(b) email from the Commission received by the parties on 26 September 2022.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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.
Mr Tran’s submissions include the following:
(a) Mr Tran seeks to appeal the MA’s assessment of 0% WPI for the impairment to the left upper extremity and right upper extremity.
(b) Mr Tran relied upon sections 16.4 and 16.4i of AMA 5 and sections 2.5 and 2.14 of the Guidelines.
(c) Unless there are exceptional circumstances, shoulder disorders are assessed using the ‘Range of Motion’ method which includes assessing flexion, extension, abduction, adduction, and external/internal rotation.
(d) The MA opined:
“I cannot see any obvious muscle wasting between the two upper limbs. They are equal in size on tape measure, there is no restriction of movement in all of the joints of both upper limbs, whether the shoulder, elbow, wrist and the hand”.
(e) It was not clear on the face of the certificate whether the MA had assessed flexion, extension, abduction, adduction, and external/internal rotation.
(f) The MAC did not attach a worksheet.
(g) The assessment for the shoulders’ impairment was done on the basis of incorrect criteria and/or there was a demonstrable error.
(h) Both qualified medico-legal specialists, Associate Professor Cyril Wong for the Mr Tran, and Dr Sham Rao Deshpande for the respondent, measured and recorded in their reports all the matters required for a ‘Range of Motion’ assessment. Professor Wong assessed 14% upper extremity impairment (UEI) of the right shoulder and 18% UEI of the left shoulder which was converted to 8% WPI of the right shoulder and 11% WPI of the left shoulder. Dr Deshpande assessed 7% UEI of the right shoulder and 8% UEI of the left shoulder which was converted to 4% WPI of the right shoulder and 5% WPI of the left shoulder.
(i) The MA made an assessment on the basis of incorrect criteria by not conducting an examination of Mr Tran to assess flexion, extension, abduction, adduction, and external/internal rotation as required by the AMA 5 and Guidelines.
(j) In the alternative, the MAC contained a demonstrable error, by not including the details of the examination findings, in a worksheet in the MAC.
(k) Section 2.5. of the WC Guidelines says:
“A goniometer or inclinometer must be used, where clinically indicated”. In a matter where precise findings on the Range of Motion is required, it is clinically indicated that such devices must be used.
(l) On the face of the certificate, it was clear that the MA has used a tape measure. It was not clear, on the face of the certificate, whether he had used a goniometer or inclinometer, as required by the Guidelines.
(m) As a result, the assessment was done on the basis of incorrect criteria and/or contains a demonstrable error as it was not readily apparent from the MAC that a goniometer or inclinometer was used to assess the impairment to both shoulders.
(n) This is a matter that requires a further examination by a member of the Medical Appeal Panel.
(o) Mr Tran seeks the following:
(i)The MAC be revoked.
(ii)Mr Tran undergo a further examination with a Member of the Medical Appeal Panel.
(iii)A new certificate be issued to include any WPI for the medical condition to both shoulders, back, neck and left lower limb.
The respondent’s submissions include the following:
(a) Mr Tran’s principal complaints were: (i) that it was not clear that the MA assessed range of motion in each shoulder on each plane of movement; (ii) that the MA did not include a worksheet in the MAC; and (iii) the MA used a tape measure and it was not clear that a goniometer or inclinometer was used.
(b) Mr Tran’s complaints were without merit and were not made out on the face of the certificate.
(c) The MA was clear in the certificate under “5. Findings on Physical Examination” that “there is no restriction of movement in the joints of both upper limbs, whether the shoulder, elbow or the wrist”.
(d) Such a conclusion cannot be reached by the MA without assessment of range of movement in the shoulders.
(e) Having examined the upper extremities and found that there was no restriction in movement, there was no need for the MA to record the full range of motion measurements in the MAC.
(f) The findings made by the MA were based on his examination and finding that there was no restriction of movement in the shoulder, and it was not a circumstance where there was no information or material to support the finding made such that it would amount to a demonstrable error.
(g) In terms of the lack of a worksheet, there is no requirement for a “worksheet” to be included in the MAC. While a “worksheet” may be useful when assessing the loss of range of motion on various planes of movement, it was unnecessary where the MA found that there is no restriction of movement at all.
(h) In terms of the assertion that a tape measure was used, and it was not clear that a goniometer or inclinometer was used, it was clear from the certificate that the tape measure was used to assess muscle wasting, which was appropriate, not to assess range of motion. There was no obligation on the MA to record that he used a goniometer or inclinometer and the lack of reference to one did not amount to a demonstrable error or the use of an incorrect criteria.
(i) The reasons provided by the MA are sufficient for the parties to appreciate that the MA conducted an examination of the range of movement in the upper extremities and found there to be no restriction. He therefore proceeded to assess 0% WPI with respect to the upper extremities.
(j) The MAC should be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) 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] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “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.
The MAC
Under “History relating to the injury”, the MA wrote:
“He was involved in a motor vehicle accident on 28 November 2000.
He was the driver and his car was hit by another car, on his side. He suffered head injuries and was admitted to St Vincent’s Hospital, under the car of Dr Bentivoglio with the impression of brain concussion, query of cervical contusion. He had various investigations done in the Hospital which include x-ray chest cervical spine, thoracic spine, lumbar spine and right elbow. There was no fracture and he did not require any surgical intervention. He also had a CAT Scan of the brain and cervical spine which showed no bony injury. All these were done at the date of injury. Subsequently he had MRI of the cervical spine and MRI of the lumbar spine which showed a small disc protrusion at C3/4 level and disc degeneration in the low back in the L2/3, L3/4 and L4/5 level. Although all these radiological investigations failed to show any significant neural or spinal injury, right from the date of injury he has some very global problem which includes loss of sensation in the whole left side of the body and also with weakness. He has been under the care of various Specialists including Psychologists, Neurologists and Pain Management Clinics but there seems to be little improvement in the last 20 years”.
Under “Findings on physical examination”, the MA wrote:
“When he stands, he needs the use of two crutches because he says the left leg is weak and tends to give way. I cannot see any obvious muscle wasting between the two upper limbs. They are equal in size on tape measurement, there is no restriction of movement in all the joints of both upper limbs, whether the shoulder, elbow, wrist and the hand. In the neck, he complained of some stiffness and tenderness. Clinical examination confirms there is asymmetric loss of movement, mainly on flexion and rotation to the left but there is no upper limb neurology, although it does associate with some muscle spasm…”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“• summary of injuries and diagnoses:
Mr Tran suffered a motor vehicle accident on 28 November 2000. He presented with some strange symptomatology which all the radiological investigations, done initially, failed to pick up the pathological basis. He is left with weakness of the left leg, pain in the neck and in the low back and requires the use of two crutches for mobilisation because the left leg is not strong enough and I believe there is consistency of the clinical presentation to the history of injury.
• consistency of presentation
I believe the patient had a motor vehicle accident 22 years ago. He now presents with neck pain, with stiffness and low back pain with stiffness, together with weakness and muscle wasting of left lower limb and I believe there is consistency of clinical presentation to the history of injury.”
Under “Reasons for Assessment”, at 10(c) the MA wrote:
“a) My opinion and assessment of whole person impairment: I believe he has reached maximum medical improvement as the injury happened 22 years ago. I cannot find any obvious pathological lesions, but he complained of pain in the neck, together with stiffness and pain in the low back, together with stiffness as well as weakness of the left lower limb. To assess the permanent impairment, using AMA Guide 5th Edition, using Table 15-3 for the neck, this will be a case of DRE Cervical Category 2, with 5% whole person impairment as he has asymmetric loss of movement, together with muscle spasm but without radiculopathy. In relation to the low back, using AMA Guide 5th Edition, Table 15-3, this will be a case of DRE Lumbar Category 2, due to the pain and asymmetric loss of movement, once again this is another 5% whole person impairment. Using Work Cover Guide 5th Edition, Page 28, Section 4.34, he has trouble looking after himself, even for personal care which requires help from his wife, there will be 3% extra for difficulty with activities of daily living. In relation to the weakness of the left lower limb, to assess by the strength, is not a reliable and good method so I have to use the muscle wasting, which in his case my measurement is 1.5cm wasting in the left thigh, using AMA Guide 5th Edition, Table 17-6, this will be a 2% whole person impairment. When all these are combined together, there is a 15% whole person impairment.
b) An explanation of my calculations (if applicable)
Worksheet /actual calculations attached? No
c) My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I cannot agree with Dr Wong’s opinion as I don’t think there is any problem in both upper limbs as they enjoy symmetrical full range of movement and no obvious muscle wasting. Other than that, we more or less agree with each other on the assessment of the cervical spine, lumbar spine as well as the left lower limb, together with activity of daily living impairment”.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Discussion
Mr Tran submitted that the assessment for the shoulders’ impairment was done on the basis of incorrect criteria and/or there was a demonstrable error. In particular, Mr Tran argued that (a) it was not clear if the MA assessed range of motion in each shoulder on each plane of movement; (b) that the MA did not include a worksheet in the MAC, and (c) the MA used a tape measure and it was not clear that a goniometer or inclinometer was used.
The Guidelines at 2.5 provide:
“2.5 Range of motion (ROM) is assessed as follows:
• A goniometer or inclinometer must be used, where clinically indicated.
• Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
• If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
• If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
• If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Guidelines at 2.6 provide:
“2.6 To achieve an accurate and comprehensive assessment of the upper extremity, findings should be documented on a standard form. AMA5 Figures 16-1a and 16-1b (pp 436–37) are extremely useful both to document findings and to guide the assessment process.”
The Appeal Panel reviewed the evidence in this matter.
The Appeal Panel noted that the MA had examined Mr Tran on 14 February 2005 and had made an assessment under the Table of Disabilities in respect of injury to the neck, low back, left upper extremity and left lower extremity. In a MAC (matter No 7865-04) issued in respect of the assessment on 14 February 2005, the MA (then an AMS) assessed 4.5% permanent impairment of the neck, 4.5% permanent impairment of the back, 0% permanent loss of efficient use of the left upper limb and 13% loss of efficient use of the left lower limb. The MA wrote in the MAC “I do not believe there is any permanent impairment of the left upper limbs”. Findings on physical examination included: “He held 2 crutches by the 2 upper limbs so both upper limbs are strong. On tape measurement I could not find any muscle wasting on the upper limbs. Every joint in the upper limb enjoyed good range of movement and similarly the neck also enjoyed good range of movement”.
The Appeal Panel noted that no claim had been made in the proceedings in 2004 in respect of the right upper limb. However, in these proceedings there appeared to be an agreement that Mr Tran developed a consequential condition in his right arm and right shoulder as a result of the injuries on 28 November 2000.
Associate Professor Cyril Wong, general surgery consultant, in a report dated 16 September 2019 noted on examination:
“The right upper extremity was normal on examination. The left upper extremity had global weakness at Grade 4/5 weakness. Mr Tran had a very weak grip on the left side. Shoulder had restricted range of motion at all planes; flexion at 80 degrees, extension at 20 degrees, abduction to 85 degrees, minimal adduction, external rotation at 40 degrees and internal rotation at 40 degrees. There were global sensory deficits at previously described”.
Associate Professor Wong noted that the clinical findings of the right upper extremity remained basically same since the examination by the MA in 2005 except that Mr Tran had developed some discomfort at the right arm recently. He considered that there was a gross deterioration in the left upper extremity since the MA’s examination. He wrote:
“The left arm is no long [sic] strong but it had become very weak including the grip of the left hand. The range of motion of is no longer normal with significant range of motion restrictions at the left shoulder joint. The left arm can no longer share with the right arm to support his body weight”.
In a supplementary report dated 11 March 2021, Associate Professor Wong made the following findings on examination:
“Upper extremities - The right shoulder had some range of motion restriction at the
shoulders and it was normal on examination otherwise. The left upper extremity had global weakness at Grade 4/5 weakness. Mr Tran had a very weak grip on the left side. There was also range of motion restrictions at the left shoulder.
Shoulders
The shoulders were positioned symmetrically. There was no unilateral atrophy. The goniometric measurements obtained in this examination are tabled below”.
Associate Professor Wong made an assessment of 8% WPI of the right shoulder and 11% WPI of the left shoulder.
In a report dated 1 June 2021, Dr Sham Rao Deshpande, orthopaedic surgeon, noted that there was some wasting of muscles on the left side involving the upper and lower extremities. He recorded the range of motion on examination of the shoulders and assessed 4% WPI of the right shoulder and 5% WPI of the left shoulder.
In a supplementary report dated 5 August 2021, Dr Deshpande noted:
“Van Tran was using the axillary crutches incorrectly. In using the axillary crutch, it is important that the weight should go through the bar in the middle of the crutch and not through the axilla. Tran was taking all his weight through the axilla. When one uses the crutch in this manner, it puts undue stresses on the shoulder capsule and the brachial plexus, which can cause shoulder pain”.
Ground 1 - whether the MA had assessed flexion, extension, abduction, adduction, and external/internal rotation.
The MA, in this matter, stated quite clearly that there was a full range of shoulder movements and no impairment in either upper extremity. In order to make a finding that there was a full range of movement in each shoulder, the MA would have assessed the range of movement in each shoulder and on each plane of movement, that is, flexion, extension, abduction, adduction, external rotation and internal rotation. The MA is an experienced orthopaedic surgeon, who has been trained in the use of the Guidelines and was aware of planes of movement that required measurement in an assessment of the shoulder. The fact that the MA did not set out in detail the full range of motion found on examination in all planes and merely stated that there was a full range of shoulder movements did not mean that the MA did not conduct a proper assessment of the range of movement in each shoulder and on each plane of movement, that is, flexion, extension, abduction, adduction, external rotation and internal rotation. There is a presumption of regularity that the MA performed such tests as might be required: Jones v the Registrar of the Workers Compensation Commission [2010] NSWSC 481 at [50]. Taking these factors into account, the Appeal Panel accepted that the MA assessed range of motion in each shoulder on each plane of movement.
The Appeal Panel does not accept that error is shown in this ground or that that the assessment was made on the basis of incorrect criteria.
Ground 2 - the MA did not include a worksheet in the MAC
AMA 5 on page 435 provides:
“A complete and detailed examination is necessary for accurate impairment evaluation. One method for recording results from a systematic examination is the use of the Upper Extremity Impairment Evaluation Record (Figures 16-1a and 16-1b)”.
The Appeal Panel considered that AMA 5 merely suggested the use of Upper Extremity Impairment Evaluation Record as one method of making an evaluation. The Appeal Panel did not accept that the MA must provide a worksheet especially in matters where there the examiner found a full range of movement.
The Guidelines at 2.6 provide that “to achieve an accurate and comprehensive assessment of the upper extremity, findings should be documented on a standard form. AMA5 Figures 16-1a and 16-1b (pp 436–37) are extremely useful both to document findings and to guide the assessment process.”
Whilst there was no doubt that the MA did not attach a worksheet or the “standard form” to the MAC, his findings were clear, that is, there was a full range of movement in both shoulders, and this was adequately articulated in the MAC. The relevant clause did not require that the MA must use the standard form and that such a form must be attached to the MAC. Whilst the use of the form was recommended and “should” be used, there were clear findings contained in the MAC and the Appeal Panel did not accept that there was an error or that the assessment was made on the basis of incorrect criteria. It was the view of the Appeal Panel that the normal meaning of “should” did not require that the standard form “must” be used.
The Guidelines (4th Ed) have been held to have the force of delegated legislation (Ballas v Department of Education [2020] NSWCA 86 at [97]. As the plurality stated in Military Rehabilitation Commission v May [2016] HCA 19 at [10] the “question of construction is determined by reference to the text, context and purpose of the Act”. Applying these principles, the ordinary meaning of “should” in the context of cl 2.6, does not require that the form “must” be read. The Appeal Panel did not accept that error was shown in this ground.
Ground 3 - it was not clear that a goniometer or inclinometer was used
The Appeal Panel accepted that the Guidelines at 2.5 provide that for assessment of range of motion a goniometer or inclinometer must be used, where clinically indicated. However, if the MA found a full range of movement there would be no clinical indication for the use of a goniometer or inclinometer. A goniometer or inclinometer would be used when there was an actual restriction in the range of movement, which was not the case in this examination of Mr Tran by the MA.
Further, as noted above, there is a presumption of regularity that the AMS has performed such tests as might be required: Jones v the Registrar of the Workers Compensation Commission [2010] NSWSC 481 at [50]. The Appeal Panel accepts that appropriate testing was undertaken by the MA in accordance with the Guidelines. The Appeal Panel did not accept that error was shown in this ground or that the assessment was made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 October 2022 should be confirmed.
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