Tuicomia v Secretary, Department of Education
[2024] NSWPICMP 205
•9 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tuicomia v Secretary, Department of Education [2024] NSWPICMP 205 |
| APPELLANT: | Leanne Tuicomia |
| RESPONDENT: | Secretary (Department of Education) |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 9 April 2024 |
| DATE OF AMENDMENT: | 10 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Right upper extremity and left upper extremity injury; right upper extremity assessed by the Medical Assessor but left upper extremity found to have not reached maximum medical improvement (MMI); worker appealed the finding of not MMI; Appeal Panel found error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2023 the worker Leanne Tuicomia lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that she be re-examined by a Medical Assessor member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination.
The Appeal panel also determined as a result of the Appeal Panels’ preliminary review as follows:
“The Panel has determined that the following medical records, not already before it, should be produced:
An updated X-ray and MRI of the left shoulder.”
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment as well as the additional investigations referred to above which were duly produced as directed and has taken them into account in making this determination.
Further medical examination
Medical Assessor Doron Sher of the Appeal Panel conducted an examination of the worker on 22 February 2024 and reported to the Appeal Panel.
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.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor by the Commission as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
31/05/2021
•
Body parts / systems referred:
Right upper extremity (right shoulder)
Left upper extremity (left shoulder)
•
Method of assessment:
Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Right upper extremity | 31/05/2021 | Figures 16-40, 16-43 and 16-46 | 10 | 0 | 10 | ||
| Left upper extremity | Not at MMI | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 10% | ||||||
The worker appealed.
The appellant complains on appeal about the assessment in respect of the left upper extremity that maximum medical improvement (MMI) had not been reached.
In summary, the appellant submitted on appeal that the Medical Assessor made demonstrable errors and made an assessment on the basis of incorrect criteria as follows:
(a) by not referring to the test for determining maximum medical improvement as set out in the Guidelines;
(b) by failing to engage with the medical evidence adduced by both parties with respect to the left upper extremity. In so doing, the Medical Assessor (i) failed to engage with a clearly articulated argument, and (ii) failed to provide procedural fairness to the appellant, and
(c) by failing to undertake an assessment of the left upper extremity on the basis that the left upper extremity had not reached MMI without providing sufficient reasons to understand the Medical Assessor’s reasoning process and basis upon which the determination was made.
In summary, the employer Secretary (Department of Education) (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The Medical Assessor took a history of injury and its sequelae as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On 31/05/2021, Ms Tuicomia sustained a fall onto her right shoulder during her work activities. She was escorting a kindergarten group to a construction site as a learning exercise and in doing so, had her foot catch on a grass runner and subsequently fell, impacting her right shoulder with acute onset of severe pain in that shoulder.
Following the injury, she was taken back via bus to her school and subsequently picked up by her daughter and taken to Campbelltown Emergency where x-rays revealed a greater tuberosity fracture of the right side.
She was followed up at Camden Fracture Clinic although subsequently referred to
Dr Jonathan Herald, Orthopaedic Surgeon, on 25/06/2021. After review of an x-ray, CT scan and MRI scan with ongoing right shoulder pain, Mrs Tuicomia underwent surgery on 30/09/2021 under Dr Herald which involved a right shoulder arthroscopy, capsular release, debridement of a ruptured long head of biceps stump, acromioplasty and a subacromial decompression at East Sydney Private.Prior to her injury, Mrs Tuicomia was seeing Dr Herald in regards to bilateral shoulder pain with left being much worse than right. She was diagnosed with adhesive capsulitis of both shoulders. Mrs Tuicomia states that her left shoulder since the injury to her right has continued to give her pain and difficulty with activities of daily living.
Present treatment:
Mrs Tuicomia is not currently undertaking any medical or allied health treatment, nor taking medication for her shoulders.
Present symptoms:
Right side: Mrs Tuicomia states she has pain or hesitancy in doing a number of activities around the house and outside. She cannot lift heavy items, for example a 10kg bag of rice and she requires assistance at home from her children. She has anterior shoulder pain which is mostly activity related. She does get pain on rolling in bed and it can wake her from sleep.
Her left shoulder gives anterior and posterior pain and she states it feels like a straining sensation. She also describes some spasms within the shoulder with decreased range of motion.
Details of any previous or subsequent accidents, injuries or conditions:
Mrs Tuicomia was referred to Dr Herald on 12/04/2021 with left shoulder pain. She had ultrasounds of both shoulders and subsequently went on to have further imaging which included MRI scans. She was diagnosed with bilateral adhesive capsulitis prior to the injury she sustained and was planned for a Hydrodilatation procedure and she underwent this procedure on the left side on 15/06/2021 at I-MED Radiology. I note Mrs Tuicomia does not recall this procedure although a report from I-MED Radiology is within the documentation.
General health:
Previous coronary artery bypass in 2015 and acute myocardial infarction and subsequent placement of 3 cardiac stents in March of 2022.
Overactive thyroid on carbimazole.
Umbilical hernia repairs with revision procedures.
Cholecystectomy in 1997.
Gastric sleeve procedure in 2017.
Work history including previous work history:
Most occupations involved school teaching in the area of Special Needs Children since 1989. Prior to this, Mrs Tuicomia worked in an office job.
Social activities/ADL:
Mrs Tuicomia states she has difficulty with putting on a bra and getting dressed in the morning. She can brush her hair and toilet/shower okay without assistance.
She is unable to make her bed due to the heavy mattress causing pain within her shoulders. She does not hang clothes and she is unable to place things on high shelves. She has a cleaner fortnightly for cleaning toilets and floors which costs approximately $150 a fortnight. She can do cooking although avoids cooking with heavy pots and pans.
She is still able to do her shopping although her son assists with unpacking groceries and carrying heavy items.
She does not mow the lawn secondary to pain in her shoulders.
She can still drive although putting on a seatbelt is difficult.
Sports and hobbies are not affected by her shoulders as they do not involve physical activity.”
The Medical Assessor reviewed the special investigations as follows:
DATE
INVESTIGATION
RESULTS
17/12/2020
Ultrasound scan right shoulder
Subacromial bursitis with bursal impingement. Supraspinatus tendinosis. AC joint arthropathy.
12/01/2021
Ultrasound scan left shoulder
Subacromial bursitis. No tendinopathy or tear identified.
13/05/2021
X-ray bilateral shoulders
Marginal osteophytes in the inferior glenohumeral joints bilaterally. Preserved joint space consistent with early degeneration. Subacromial spurring in the right shoulder with a possible focus or ossification/calcification adjacent to the acromial process raising the possibility of rotator cuff tendinosis. Moderate right AC joint osteoarthritis.
14/05/2021
MRI scan bilateral shoulders
Left side: Supraspinatus bursal surface fraying. Rotator cuff intact. There are features of subacromial/subdeltoid bursitis and adhesive capsulitis.
Right side: Supraspinatus articular surface tear. There are features of subacromial/subdeltoid bursitis and adhesive capsulitis.
19/07/2021
X-ray right shoulder
Osteoarthritic changes of the acromioclavicular and glenohumeral joints. There is a fracture of the greater tuberosity of the humerus with a separated ossific fragment present. There is no subluxation or dislocation.
20/12/2021
Ultrasound and x-ray right shoulder
X-ray: There are features of moderate degenerative arthropathy in the right glenohumeral joint with marginal osteophytes. Joint spaces are relatively preserved. There is a cortical irregularity of the greater tuberosity. There is a marked hypertrophic arthropathy of the AC joint.
Ultrasound: Long head of biceps is intact and located in the bicipital groove.
26/07/2021
MRI scan and CT shoulder
MRI: Conclusion: Undisplaced greater tuberosity fracture. Partial thickness tear of the insertional anterior fibres of infraspinatus. Marked tendinosis of supraspinatus. Subacromial bursitis. Long head of biceps is not seen at the level of the head and neck and intra-articular portion ? complete tear.
CT: Undisplaced greater tuberosity fracture again noted. No other fracture is seen. Moderate degenerative OA in the glenohumeral joint and AC joint is noted. Alignment of the glenohumeral joint and AC joints are anatomical. No fracture elsewhere.
The Medical Assessor conducted a physical examination of which he recorded as follows:
“At the commencement of the examination, Mrs Tuicomia was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.
Mrs Tuicomia is generally well and walked into the room without concern. She was 157cm tall and 106kg in weight. She was comfortable throughout the examination except for pain experienced on examining both shoulders.
She was noted in preparation for shoulder examination to not raise her arms above shoulder height on removing her jumper and shirt.
Her bilateral shoulder exam shows arthroscopy scars that are barely perceivable on the right shoulder.
The active range of motion in the shoulders as measured with a goniometer is as follows: AMA-5, Figures 16-40, 16-43, 16-46, pp. 476, 477 & 479
RIGHT
UEI %
LEFT
UEI %
Flexion
100°
5
90°
6
Extension
20°
2
20°
2
Abduction
80°
5
70°
5
Adduction
30°
1
20°
1
Internal rotation
45°
3
35°
4
External rotation
20°
1
20°
1
ADDED
17
19
Her strength was grade 5 power in supraspinatus, infraspinatus and deltoid bilaterally. She had grade 5 power in subscapularis on the left and grade 4 on the right. She had some anterior shoulder tenderness on both shoulders with positive impingement sign on both shoulders.”
The Medical Assessor summarised his diagnosis and findings as follows:
“(a) Summary of injuries and diagnoses:
Mrs Tuicomia has sustained a greater tuberosity fracture with impingement requiring acromioplasty and subacromial decompression and a rupture of the long head of biceps which required debridement of the remnant stump with adhesive capsulitis of the right shoulder following a fall as part of her duties working as a Special Needs Teacher at a school for the Department of Education. She subsequently also developed worsening left sided adhesive capsulitis. It is noted that a diagnosis of adhesive capsulitis in the bilateral shoulders was made prior to the fall, however symptoms worsened following her injury.
(b) Consistency of presentation:
In relation to the history given to me by the patient and the mechanism of trauma, the production of the above injuries is consistent with the accident and the signs and symptoms, as demonstrated by the patient, are consistent.”
The Medical Assessor considered that the left upper extremity had not reached MMI explaining as follows:
“(a) Have all body parts/systems stabilised/reached maximum medical improvement? No. The right shoulder has been stable over a 12 month timeframe with little change, however the left shoulder on range of motion testing has worsened based on previous documented reviews.
(b) If not, please list those injuries not yet stable/at maximum medical improvement: Left shoulder.
(c) If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?
18-24 months from its onset. Recurrence of frozen shoulder/adhesive capsulitis symptoms has occurred between medical impairment reviews and therefore a 24 month period would allow this to stabilise +/- improve.”
The Medical Assessor assessed the right upper extremity and there is no complaint about this assessment on appeal.
He did not assess the left upper extremity because he considered it had not reached MMI and this is the subject of complaint on appeal.
He made brief comments about the opinion of Dr Bodel, the IME qualified on behalf of the appellant as follows:
“My opinion on WPI is similar to that of Dr Bodel performed on 02/11/2022 in regards to the right shoulder (10% WPI). However, a discrepancy is between the left shoulder measured range of motion values recorded at my examination. Worsening of range of motion on the left can be a consequence of worsening adhesive capsulitis in the period between reviews.”
He did not make any comment about any of the other medical opinions that were before him.
There was no other medical opinion before him that considered that MMI had not been reached.
The Medical Assessor’s finding that MMI had not been reached for the left upper extremity because the ROM findings differed from the findings of Dr Bodel on 2 November 2022 (some 10 months prior) expressed as being possibly a consequence of the worsening adhesive capsulitis in the period between reviews, is not a sufficient explanation to support a finding of no MMI for the left upper extremity because it does not adequately address the other evidence that was before the Medical Assessor.
In these circumstances the Appeal Panel considered that a re-examination was necessary. Medical Assessor Doron Sher was appointed to conduct the examination and he reported to the Panel as follows: (emphasis in original)
“APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W4357/23 |
Appellant: | Leanne TUICOMIA |
Respondent: | Secretary (Department of Education) |
Examination Conducted By: | Doron Sher |
Date of Examination: | 22/2/2024 |
Ms Tuicomia attended my Randwick rooms alone on 22/02/2024 for an appointment and preparation of a report to answer the following questions:
The workers medical history, where it differs from previous records
Additional history since the original Medical Assessment Certificate was performed
Findings on clinical examination
Results of any additional investigations since the original Medical Assessment Certificate
1. The workers medical history, where it differs from previous records
Ms Tuicoma confirmed the history as provided in the documentation provided. The majority of the history related to the right shoulder injury and surgery. Please note in the patient’s own statement the following is documented:
‘I never suffered an injury to my left shoulder. The injection was purely to alleviate symptoms I was experiencing due to arthritis.’
History Of Injury to Right Shoulder
The patient confirmed that the history in the previous records was an accurate rendering of events. Ms Tuicoma was working as a Department of Education Special Needs School Teacher. On 31/05/2021, Ms Tuicomia sustained a fall onto her right shoulder during her work activities. She was escorting a kindergarten group to a construction site as a learning exercise and in doing so, had her foot catch on a grass runner and subsequently fell, impacting her right shoulder with acute onset of severe pain in that shoulder.
Following the injury, she was taken back via bus to her school and subsequently picked up by her daughter and taken to Campbelltown Emergency where x-rays revealed a greater tuberosity fracture of the right side. She was followed up at Camden Fracture Clinic although subsequently referred to Dr Jonathan Herald, Orthopaedic Surgeon, on 25/06/2021. After review of an x-ray, CT scan and MRI scan with ongoing right shoulder pain, Mrs Tuicomia underwent surgery on 30/09/2021 under Dr Herald at East Sydney Private Hospital. She feels that she has recovered well from this operation.
Prior to her injury, Mrs Tuicomia was seeing Dr Herald in regards to bilateral shoulder pain with left being much worse than right (see below). She was diagnosed by
Dr Herald with adhesive capsulitis of both shoulders. Mrs Tuicomia states that her left shoulder has continued to be problematic since the injury to her right and has continued to give her pain and difficulty with activities of daily living. The range of motion and pain in the left shoulder has fluctuated considerably since the right shoulder was injured. The pain and stiffness were worse when the right arm was unable to be used in the post surgical period.2. Additional history since the original Medical Assessment Certificate was performed
Mrs Tuicomia was referred to Dr Herald on 12/04/2021 with left shoulder pain. She had ultrasounds of both shoulders and subsequently went on to have further imaging which included MRI scans. She was diagnosed with bilateral adhesive capsulitis prior to the injury she sustained and was planned for a Hydrodilatation procedure and she underwent this procedure on the left side on 15/06/2021 at I-MED Radiology. She states that she had a good response to this injection in terms of pain relief for a limited period of time. It did not improve her range of motion.
General health history:
• Previous coronary artery bypass in 2015 and acute myocardial infarction and subsequent placement of 3 cardiac stents in March of 2022.
• Overactive thyroid on carbimazole.
Umbilical hernia repairs with revision procedures.• Cholecystectomy in 1997.
Gastric sleeve procedure in 2017.Work history including previous work history:
Most occupations involved school teaching in the area of Special Needs Children since 1989. Prior to this, Mrs Tuicomia worked in an office job.Social activities/ADL:
Mrs Tuicomia confirmed the following details:
She has difficulty with putting on a bra and getting dressed in the morning. She can brush her hair and toilet/shower okay without assistance. She is unable to make her bed due to the heavy mattress causing pain within her shoulders. She does not hang clothes and she is unable to place things on high shelves. She has a cleaner fortnightly for cleaning toilets and floors. She can do cooking although avoids cooking with heavy pots and pans. She is still able to do her shopping although her son assists with unpacking groceries and carrying heavy items. She does not mow the lawn secondary to pain in her shoulders. She can still drive although putting on a seatbelt is difficult.Summary of injuries and diagnoses:
Mrs Tuicomia sustained a greater tuberosity fracture with impingement requiring surgery to her right shoulder following a fall as part of her duties working as a Special Needs Teacher at a school for the Department of Education. She subsequently also developed worsening left sided shoulder pain and loss of motion with evidence of prior problems with this shoulder. It is noted that a diagnosis of adhesive capsulitis in the bilateral shoulders was made prior to the fall, however symptoms worsened following her injury.
It is my opinion that the original diagnosis was that of arthritis and not adhesive capsulitis.
Report from Dr Bodel
The report from Dr Bodel performed on 02/11/2022 showed the left shoulder measured range of motion values as listed below:Patient Statement
This is an excerpt from the patient statement in the documentation provided where she states she has arthritis in her left shoulder and ‘when I do overuse my left side, I am always having to stretch and relieve the discomfort.’
1. At this time, I was working as a Special Needs School Teacher and my duties were purely physical in nature. I was required to manage, teach and oversee children from Kindergarten to Year 12. These children would have moderate to severe physical and mental disabilities.
2. This role was purely physical, and it was common that I would experience intermittent soreness and discomfort in my shoulders and upper body. I would often regularly have to pick up and carry children of all ages. My duties involved the following:
1. (a) Assist with lifting children in and out of wheelchairs. I would sometimes have to lift children on my own with no other physical assistance.
2. (b) Changing of nappies
3. (c) Assisting children to sit on chairs or on the floor. Similarly, assisting children stand up from the floor.
4. (d) Assist children travel up and down stairs
5. (e) Physically restrain children who might become physical during a meltdown due to their disability or condition
6. (f) Physically restrain children if an altercation occurs with another child or staff member
7. (g) Assist children at eating times
8. (h) Lifting children on and off playground equipment
3. Approximately 3 months before my workplace injury, I began experiencing some discomfort in my bilateral shoulders. This was not due to any specific incident or injury. It was more so with respect to overuse and over-exertion.
4. At this time, my left shoulder was more problematic than my right. It was stiff and uncomfortable.
5. I underwent an MRI and Dr Herald diagnosed me with left frozen shoulder. I was then referred for an injection procedure within my left shoulder. I was also reliant on Endone for a short time.
6. I never suffered an injury to my left shoulder. The injection was purely to alleviate symptoms I was experiencing due to arthritis.
7. I was never required to take time off from work due to challenges I was suffering with my left side.
8. I disagree with the opinion maintained by Dr Gothelf in that I stated I have "had no problem with my left shoulder since the workplace injury". To this day, I still continue to rely on my left side. I find that when I do overuse my left side, I am always having to stretch and relieve the discomfort.
When seen by Dr Herald on 14/4/2021 she had a 3 month history of increasing shoulder pain which was mainly the left shoulder with significant pain and stiffness. At that time her forward elevation was 90 degrees, external rotation 25 degrees and internal rotation to the waist. There was Grade IV power in the supraspinatus.
Imaging was arranged. I have reviewed these images rather than just relying on the reports. The x-ray certainly does show some sclerotic changes in the glenoid and the MRI scan is a rather poor quality study which does not adequately visualise either the articular cartilage or the capsule to the level of diagnostic capacity. I was able to view the original MRI scan at I-Med which unfortunately is not diagnostic due to the image quality in my opinion.
3. Findings on clinical examination
The clinical examination today showed some irritability of her greater tuberosity and her biceps tendon with positive impingement signs. The left shoulder had active forward elevation of 110 degrees (passive 130), extension 35 degrees, abduction 130 degrees, adduction 30 degrees, external rotation in abduction 40 degrees and internal rotation in abduction of 90 degrees (all measured with a goniometer). The glenohumeral joint was somewhat irritable. Her rotator cuff power was maintained and external rotation in adduction was 45 degrees.
Left Shoulder Movements
Movement
% Upper Extremity Impairment
Flexion
110°
5%
Extension
35°
1%
Abduction
130°
2%
Adduction
30°
1%
Internal rotation
90°
0%
External rotation
45°
1%
Total
10%
Range of motion testing was performed using AMA 5 Figure 16-38, 16-41 and 16-44 with tables 16-40, 16-43 and 16-46. Conversion of impairment was using Table 16-3. A goniometer was used to assess ROM.
4. Results of any additional investigations since the original Medical Assessment Certificate
At todays appointment the patient provided a report of an MRI and plain Xray. I was able to view these images online. The MRI scan performed on 8/2/2024 confirms cystic change within the glenoid with at least moderate osteoarthritis of the glenohumeral joint with osteoarthritic spurring.
The x-ray also showed early glenohumeral joint arthrosis with periarticular osteophyte formation very similar to the x-ray in 2021. It would appear that the arthritis has progressed on the MRI however as mentioned previously this is difficult to assess because of the poor quality of the first MRI.
In addition if the diagnosis was in fact arthritis rather than capsulitis one would expect a good response to the intra-articular corticosteroid injection, which the patient did have.
The patient had undergone previous ultrasounds of the left shoulder on 12/1/2021 which showed subacromial bursitis but this would not have been able to diagnose glenohumeral joint arthritis and has missed the diagnosis.
On 2/3/2021 a steroid injection of the left shoulder was given with only 2mls of liquid and therefore no comment is possible on whether there was evidence of adhesive capsulitis.
Diagnosis
The diagnosis for the left shoulder is that of glenohumeral arthrosis. I do not believe the patient ever had adhesive capsulitis but even if they did it should have resolved within 2 years. One would expect arthritis to respond well to an intra-articular injection. The fluctuation in range of motion as seen at various times is also explained by her arthritis rather than the diagnosis of adhesive capsulitis. Any potential exacerbation has settled and the patient has reached maximal medical improvement.
I have assessed 10% Left upper Extremity Impairment. This equates to 6% WPI.
Due to the significant pre-existing condition of the left shoulder I have applied a 40% deduction. This is not at odds with the available evidence. This equates to 2.4% WPI. She therefore has 3.6% WPI as a result of the injury which rounds off to 4% WPI.
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA Guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Right upper extremity (shoulder | 31/05/21 | Chapter 2 Pages 10-12 | Chapter 16 Pages 476-479 f16-40 to f16-46 | 10% | N/A | 10% |
| Left upper extremity (shoulder) | 31/05/21 | Chapter 2 Pages 10-12 | Chapter 16 Pages 476-479 f16-40 to f16-46 | 6% | 4/10ths | (3.6) 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
Signed: Doron Sher”
The Appeal Panel adopts the findings and the report of Medical Assessor Sher.
Accordingly, the Appeal Panel will revoke the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
Rosheka Chandra
Dispute Support Officer
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4357/23 |
Applicant: | Leanne Tuicomia |
Respondent: | Secretary (Department of Education) |
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 Donald Cawthorne 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 SIRA Guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Right upper extremity (shoulder | 31/05/21 | Chapter 2 Pages 10-12 | Chapter 16 Pages 476-479 f16-40 to f16-46 | 10% | N/A | 10% |
| Left upper extremity (shoulder) | 31/05/21 | Chapter 2 Pages 10-12 | Chapter 16 Pages 476-479 f16-40 to f16-46 | 6% | 4/10ths | (3.6) 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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