Veolia Environmental Services (Australia) Pty Ltd v Ellul

DETERMINATION OF APPEAL PANEL
CITATION:	Veolia Environmental Services (Australia) Pty Ltd v Ellul [2023] NSWPICMP 96
APPELLANT:	Veolia Environmental Services (Australia) Pty Ltd
RESPONDENT:	Alfred Ellul
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	16 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor (MA) failed to consider all relevant material; whether MA failed to obtain correct history; whether MA sufficiently explained his reasons; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 December 2022 Veolia Environmental Services (Australia) Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 November 2022.
The appellant relies on the ground for appeal listed at s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) being that 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.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant employed Alfred Ellul, the respondent, as a yard person and forklift driver. That employment commenced in 2004. The respondent was then either 64 or 65 years of age, having been born in 1939.
On 27 September 2007 the respondent suffered an injury to his left shoulder while working for the appellant. This occurred while the respondent was assisting a fellow employee repair a bucket on a bobcat. The bucket broke loose and the respondent attempted to take the weight of it with his left arm. Subsequently, and as a consequence of the injury to his left shoulder, the respondent developed a condition in his right shoulder.
The respondent had in 1996 been diagnosed with impingement of his shoulders and cervical spondylosis. That of course occurred prior to the respondent commencing his employment with the appellant. He consulted orthopaedic surgeon Dr Jerome Goldberg at the time.
On 1 August 2003 an ultrasound was done of both of his shoulders that revealed fluid in the sub-deltoid bursa of the right shoulder and a partial tear in the supraspinatis tendon and a full thickness tear of the lateral two-thirds of the supraspinatis tendon of the left shoulder. The respondent consulted orthopaedic surgeon Dr Michael Johnson following that ultrasound complaining of posterior right scapula pain that was worse with shoulder movement and that had been persisting for years and had recently increased with work activity. Dr Johnson in a letter of 19 August 2003 to the respondent’s general practitioner (GP) advised that the respondent had an impingement syndrome of the right shoulder with tearing of the rotator cuff and restricted movement of the left shoulder in keeping with a small complete tear of the left shoulder.
The respondent again consulted Dr Goldberg on 29 November 2004. Dr Goldberg in a report of 29 November 2004 to the respondent’s GP noted that the respondent was complaining of ongoing bilateral shoulder and neck pain for which he had received several cortisone injections and physiotherapy over the years. Dr Goldberg noted that X-rays of the respondent’s shoulders revealed an arthritic acromioclavicular joint and that an X-ray of the neck revealed mild arthritis of the lower levels. Dr Goldberg noted the findings of the earlier ultrasound in his report. Dr Goldberg advised that the respondent’s “main problem” related to his cervical spondylosis but Dr Goldberg also noted that the respondent had some bilateral impingement and possible cuff tears.
On 12 November 2021 the respondent was examined by orthopaedic surgeon Dr E Gehr, at the request of the respondent’s solicitors. Dr Gehr in a report of that date, addressed to the respondent’s solicitors, advised he had assessed the respondent had 25% whole person impairment (WPI) from the injury the respondent suffered on 27 September 2007, comprising 15% WPI for the left shoulder and 12% WPI for the right shoulder. The history Dr Gehr obtained included the problems the respondent had experienced prior to his injury with his right and left shoulders and cervical spine. Dr Gehr reviewed the correspondence to the respondent’s GP from Dr Goldberg dated 29 November 2004 and Dr Johnson dated
19 August 2003, which detailed those problems. Dr Gehr also reviewed the report on the ultrasound of the respondent’s shoulders that was done on 1 August 2003 and an X-ray of the respondent’s cervical spine done on 5 March 2004. Dr Gehr in his report to the respondent’s solicitors advised that, notwithstanding the pre-existing conditions the respondent had, no proportion of the respondent’s WPI was due to those pre-existing conditions. In a subsequent report to the respondent’s solicitors dated 3 August 2022,
Dr Gehr advised that he had “found no pre-existing history of problems with his shoulders and with the left shoulder” and that this was the reason he did not make a deduction under
s 323 when assessing the respondent’s permanent impairment. It is apparent from reading Dr Gehr’s report of 3 August 2022 that his reference to the pre-existing history related to the time immediately before the respondent suffered injury on 27 September 2007. In other words, it was at that time that Dr Gehr found that the respondent had “no pre-existing history of problems” with his shoulders.
On 2 December 2021 the respondent’s solicitors wrote to the appellant advising them that the respondent claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $44,000 for 25% WPI. It enclosed with its letter the report of Dr Gehr dated 12 November 2021 and advised that the respondent relied on that report in support of his claim. The appellant thereupon arranged for the respondent to be examined on 28 April 2022 by orthopaedic surgeon Dr Gregory Bruce. In a report of
5 May 2022 to the appellant Dr Bruce advised that he assessed the respondent had 9% WPI relating to his left shoulder from the injury. Dr Bruce noted that the respondent had an overall 10% WPI relating to his left shoulder but he considered that a 10% proportion of that was due to a pre-existing condition in the respondent’s left shoulder.
Dr Bruce also advised that he assessed the respondent had 10% WPI relating to his right shoulder, but Dr Bruce further advised that there was no evidence of injury to the respondent’s right shoulder in the incident of 27 September 2007 whereas there was evidence of pre-existing pathology in the right shoulder. Dr Bruce advised that, because of that, when assessing whether the respondent had any permanent impairment relating to his right shoulder from the injury on 27 September 2007, he made a “100% deduction for pre-existing problems with the right shoulder leaving 0% WPI as a result of the subject incident”. In a subsequent report dated 23 August 2022 to the appellant Dr Bruce noted that the respondent’s right shoulder only became painful when he ceased using his left shoulder and there was consequent more use by the respondent of his right shoulder. Dr Bruce said that the increased use of the respondent’s right shoulder caused pre-existing pathology to become symptomatic but those symptoms settled as soon as the respondent stopped the increased use of his right shoulder.
On 30 June 2022 the appellant wrote to the respondent care of his solicitors advising him that it declined his claim for compensation for 20% WPI from his injury. It advised the respondent of its reasons for its decision which were, in substance, that it relied on the assessment of Dr Bruce that he had 9% WPI from his injury. It advised that this did not exceed the 10% threshold stipulated by s 66(1) of the 1987 Act for him to be entitled to compensation.
On 15 August 2022 the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his disputed claim for compensation under s 66 of the 1987 Act. A delegate of the President referred the medical dispute between the parties, relating to the degree of the respondent’s permanent impairment from his injury, to the Medical Assessor to assess. As noted the Medical Assessor issued the MAC on
23 November 2022. In that, he certified the respondent had 17% WPI from his injury. The Medical Assessor explained in the MAC that he had assessed the appellant had an overall WPI relating to his right shoulder of 13% WPI and of the left shoulder of 14% WPI. He explained that he considered one-third of the respondent’s overall WPI was due to pre-existing conditions in the respondent’s shoulders and, on account of that, he made a deduction under s 323(1) of that order. Hence the Medical Assessor assessed the respondent had 9% WPI of each of his upper extremities from the injury on
27 September 2007 that combined to 17% WPI.

MEDICAL ASSESSMENT CERTIFICATE

The appellant’s challenge to the MAC relates to the correctness of the deduction the Medical Assessor made under s 323 of the 1998 Act for the proportion of the respondent’s pre-existing condition to his permanent impairment and whether, in the process of the Medical Assessor assessing that matter, the Medical Assessor considered all relevant evidence, provided a sufficient explanation, and whether there was sufficient evidence to substantiate the Medical Assessor’s reasons for making the deduction he did.
The history the Medical Assessor obtained included that the respondent sustained a neck injury in 1987 that required hospitalisation but no surgical intervention. The history the Medical Assessor obtained included that subsequent to this injury the respondent developed painful shoulders. The Medical Assessor noted that an ultrasound had revealed “a full thickness tear of the lateral two/thirds of the supraspinatis tendon in the left shoulder and a partial tear in the supraspinatis tendon in the right shoulder”. The Medical Assessor noted the respondent, prior to his suffering injury on 27 September 2007, had a slight restriction of movement in his shoulders, and suffered mild to moderate intermittent pain in his left shoulder that became more severe and constant following his injury on 27 September 2007. The history the Medical Assessor obtained also included that the respondent had been able to perform normal duties prior to suffering injury on 12 September 2007 but was now unable to do normal work due to pain and stiffness in his left shoulder. The Medical Assessor noted that the respondent’s right shoulder had a similar increase in impairment as his left shoulder following the injury on 27 September 2007.
The Medical Assessor recorded his findings in the MAC from his examination of the respondent’s shoulders, which included the range of motion the respondent had in each of his shoulders. No challenge has been made with respect to the Medical Assessor’s findings nor with respect to his ratings of the respondent’s impairment due to the respondent’s restricted movement of his shoulders.
The Medical Assessor under the heading of “details and dates of special investigations” set out brief summaries of various investigations the respondent had done since suffering his injury. The Medical Assessor provided the following “summary of injuries and diagnoses” with respect to the respondent’s injury:
“Alfred Ellul is a 83-year-old man who injured his left shoulder at work with a subsequent injury to his right shoulder. There was a significant history of pre-existing bilateral shoulder injuries. He had conservative treatment with persisting impairment at both shoulders.”
The Medical Assessor stated that his assessment of the respondent’s permanent impairment was based on a “thorough consideration of historical details, continuing complaints, my findings on clinical examination, review of the investigatory evidence and the attached medical documentation”.
The Medical Assessor noted the respondent “admitted to mild to moderate intermittent pain and some restricted movement in both shoulders before the injury on 27 September 2007”. The Medical Assessor described these as being mild symptoms. The Medical Assessor noted that the respondent subsequent to his injury developed increasing symptoms that ultimately resulted in his stopping work nine years after suffering injury in 2016.
The Medical Assessor said at 11b of the MAC that the pre-existing condition the respondent had in his bilateral shoulders contributed to the respondent’s restricted range of motion of his shoulders, by reference to which the Medical Assessor rated the respondent’s impairment of his upper extremities. The Medical Assessor expressed the opinion that “both of the bilateral shoulder injuries (in 1987 and in September 2007) contributed to current bilateral shoulder impairments”. At 11c of the MAC the Medical Assessor provided the following explanation for concluding that the proportion of the respondent’s permanent impairment that was due to his pre-existing condition and prior injury was one-third:
“There was a history of significant injuries to the shoulders around 1987 with supporting imaging studies and persistent symptoms though moderate before the subject injury on 27 September 2007. Alfred Ellul continued to work with shoulder symptoms after the 2007 injury until 2016 when his increasing bilateral shoulder symptoms became severe. There was a gradual deterioration of the bilateral shoulder condition after the 2007 accident. I consider both the 1987 injury and 2007 injury contributed to the damage with the subsequent deterioration of the bilateral shoulder conditions leading to the current shoulder impairments on both side.”

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the Appeal Panel decided it was unable to re-examine the respondent. This is because the Appeal Panel came to the prima facie view that the appellant had not established the ground for appeal on which it relied, and consequently there was no basis for the Appeal Panel to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor was required to have regard to all relevant material and that it is evident that the Medical Assessor failed to consider all relevant material. The appellant noted that the Medical Assessor referred to the ultrasound of the respondent’s injury but the appellant also said it “observes that this summary appears to have been simply extracted from the [respondent’s] signed statement”.
The appellant submitted that the report of Dr Goldberg dated 29 November 2004 supported that the respondent had a significant pre-existing history of pain and symptoms in his bilateral shoulders dating back to 1996. The appellant submitted that there “is no indication that the Medical Assessor reviewed the documented evidence that pre-dated the injury of
27 September 2007”. The appellant submitted that the history the Medical Assessor obtained as it related to the respondent’s pre-existing shoulder symptoms was limited to the respondent’s own evidence in his statement or what the Medical Assessor elicited from the respondent at examination. The appellant observed that Dr Bruce had considered the respondent to be an unreliable historian and the appellant submitted, in that circumstance, the Medical Assessor needed to explain “why he preferred the [respondent’s] history to the history evidenced in the treating surgeons’ reports”.
The appellant submitted that “there is no evidence that the Medical Assessor considered the extent of the treatment that the [respondent] underwent following his injury in 1997”.
The appellant submitted that the Medical Assessor did not sufficiently explain his reasons for apportioning one-third of the respondent’s impairment with respect to his shoulders to pre-existing conditions. The appellant submitted that the deduction the Medical Assessor made under s 323 of one-third was at odds with the evidence and at odds with the Medical Assessor’s comments that there was a significant history of pre-existing bilateral shoulder injuries.
The appellant submitted that it was unclear what the source of the information was that the respondent had increased symptoms after his injury but was able to continue working for nine years until 2016 when he had to stop work because of symptoms in his shoulders.
The appellant submitted that the Medical Assessor provided only a brief summary of the reports of Dr Gehr and Dr Bruce and did not provide an analysis of these medical-legal reports. The appellant submitted that “there is no evidence” that the Medical Assessor considered Dr Bruce’s report of 23 August 2022 or the supplementary report of Dr Gehr dated 3 August 2022.
The appellant submitted that the Medical Assessor “failed to provide any reasons” why the deduction he made under s 323 was appropriate or preferable to “an alternative deduction”.
The appellant submitted that the Medical Assessor failed to provide any reasons for why he did not accept Dr Bruce’s view that the respondent’s increase in symptoms in his right shoulder was transient. The appellant submitted that the Medical Assessor failed to provide “a clear opinion on medical causation” regarding why the respondent’s impairment with respect to his right shoulder resulted from the left shoulder injury on 27 September 2007. The appellant submitted that the Medical Assessor inadequately explained why a nine year gap in complaints by the respondent to his treating practitioners following the injury on
27 September 2007 gave rise to the conclusion that his shoulder symptoms remain causally related to the injury on 27 September 2007.
In reply, the respondent submitted that the Medical Assessor was aware of his pre-existing conditions of the shoulder. The respondent submitted that any failure on the Medical Assessor’s part to read or consider documents would not have produced a history that was different to the detailed history the Medical Assessor set out in the MAC. The respondent submitted that the only additional matter raised in Dr Goldberg’s report that was not contained in the history the Medical Assessor provided in the MAC was that Dr Goldberg speculated that future surgery may be required.
The respondent submitted that a deduction made under s 323 is based on a clinical judgment and that there is no calculus that can be adopted to precisely determine what the deduction should be. The respondent submitted that “in almost all instances of a s323 deduction reasonable minds may differ as to the precise amount”.

The respondent submitted that the Medical Assessor properly discharged his obligation to provide reasons for the deduction he made because the Medical Assessor:
(a)noted the history of a pre-existing condition;
(b)obtained a history regarding the extent of symptoms the respondent suffered prior to 2007 and after 2007;
(c)considered the conclusions reached by Drs Gehr and Bruce, and
(d)explained his own rationale for the deduction he made.
The respondent submitted that the path of the Medical Assessor’s reasoning for the deduction he made was clear and supported by the facts.

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.
It is necessary that a Medical Assessor obtain a history relevant to the worker’s injury so that the Medical Assessor can assess the impairment of the worker from an injury. The process of obtaining a history involves a Medical Assessor questioning a worker to elicit information directly from the worker. It also involves a review of all relevant medical data relating to the worker that may be contained in whatever documentation is available to the Medical Assessor. The Medical Assessor’s questioning of the worker will be done against the background of that medical data. Saying that somewhat differently, a medical history is obtained to reveal all necessary information relevant to the worker’s injury and the impact the injury has had on the worker. The history is compiled both from information elicited from the worker and the relevant medical data within the available documents. In general, a medical history will include details about the worker’s medical history, past treatment, present treatment, the medications the worker is taking and the symptoms that the worker is experiencing.
Generally speaking, where the history relevant to a worker’s injury is being obtained numerous years after a worker has suffered the injury, as is the case here, the worker will be an unreliable historian. That is simply a consequence of memory becoming more fragile over time.[2] In such cases medical data within contemporaneous reports may provide greater assistance in the compilation of a worker’s history than an unreliable memory of a worker. But ultimately, the task of the Medical Assessor is to compile a medical history relevant to the worker that is sufficient to enable the Medical Assessor to exercise his or her clinical judgement to assess the worker’s permanent impairment.
[2] Nominal Defendant v Cordin [2017] NSWCA6 at [165]-[167]; Mia-Angel Bridges-Cole by her litigation guardian Chantelle Sheree Bridges v Dr Zaffar Hussain; Chantelle Sheree Bridges v Dr Zaffar Hussain [2023] NSWSC 18 at [14].
The Appeal Panel considers that the history the Medical Assessor obtained relevant to the respondent’s injury is reliable and was sufficient to enable the Medical Assessor to assess the respondent’s permanent impairment. It is apparent to the Appeal Panel, when the MAC is read as a whole, that the Medical Assessor has developed the history relevant to the respondent’s injury from questioning the respondent and also from information contained within the documents that were provided to him. There is nothing within the history the Medical Assessor set out in the MAC that is inconsistent with or departs from what is contained within the documentary evidence. It is not the case, as the appellant has submitted, that the Medical Assessor has preferred the history the respondent provided over the history Dr Bruce or any other examiner obtained. What the Medical Assessor has done is based his assessment on the history he obtained, which was compiled from information elicited through interviewing the respondent and from the documents provided to him, including the report of Dr Bruce.
The Appeal Panel does not accept the appellant’s submission to the effect that the Medical Assessor did not consider all relevant evidence attached to the respondent’s Application to Resolve a Dispute and the appellant’s Reply. A Medical Assessor does not have to refer to every piece of evidence so as to explain his or her assessment of a worker’s impairment. It is however the case, as the appellant submitted, that a Medical Assessor needs to consider all relevant evidence and it is an error for a Medical Assessor not to consider all relevant medical evidence.[3]
[3] Tattersall v Registrar of the Workers Compensation Commission of NSW & Anor [2017] NSWSC 453 at [15]; Wentworth Community Housing Ltd v Brennan [2019] NSWSC 152 at [70]-[76].
In this case the Medical Assessor has noted that his assessment was based on his consideration of historical details, the respondent’s continuing complaints, his findings from his clinical examination of the respondent, and his review of the investigatory evidence and the attached medical documentation. The Medical Assessor’s statement that his assessment was based on a review of the investigatory evidence and the attached medical documentation indicates, contrary to the appellant’s submission, that the Medical Assessor reviewed and considered the relevant medical evidence, and that evidence included the ultrasound done on 1 August 2003 of the respondent’s shoulders, the report of Dr Johnson dated 19 August 2003, the report of Dr Goldberg dated 29 November 2004, the reports of
Dr Bruce dated 5 May 2002 and 23 August 2022, and the reports of Dr Gehr dated
12 November 2021 and 3 August 2022.
The Appeal Panel rejects the appellant’s submission to the effect that the summary of the
1 August 2003 ultrasound on which the Medical Assessor relied was merely parroted from the respondent’s description of the findings of the ultrasound in his statement. That submission is contrary to what the Medical Assessor said in the MAC, being that he reviewed the investigatory evidence and attached medical documentation. Insofar as the appellant is submitting that the summary of the ultrasound on which the Medical Assessor relied was inadequate the Appeal Panel observes that findings of the ultrasound advised in the report of 1 August 2003 were brief and the key findings were set out by the Medical Assessor essentially verbatim, being a “full thickness tear of the lateral 2/3rds of the supraspinatus tendon in the left shoulder and a partial tear in the supraspinatus tendon in his right shoulder”.
With respect to the issue of the deduction the Medical Assessor made under s 323, the relevant parts of the history the Medical Assessor obtained included that:
(a)    The respondent suffered injury to his neck in 1987 and subsequently developed problems with his shoulders.
(b)    The respondent received treatment from Dr Burrow, Dr Goldberg and Dr Johnson for that injury including the problems that the respondent developed with his shoulders. The treatment included the respondent being hospitalised for that injury and the respondent receiving conservative treatment for the injury and the problems that developed with his shoulders.
(c)    The respondent had an ultrasound in 2003 on both shoulders that revealed a partial tear in the supraspinatis tendon in the right shoulder and a full thickness tear of the lateral two-thirds of the supraspinatis tendon in the left shoulder.
(d)    Prior to the respondent suffering injury on 27 September 2007, the respondent had experienced persistent mild to moderate symptoms in his shoulders of pain and restriction of movement in his shoulders.
(e)    The respondent had been able to perform the duties of his work prior to suffering injury on 27 September 2007.
(f)    The respondent experienced increased symptoms in his shoulders after his injury particularly so in the last six months of his employment.
The Medical Assessor concluded that the respondent had “a significant history of pre-existing bilateral shoulder injuries”.
The Appeal Panel rejects the appellant’s submission that there is “no evidence” that the Medical Assessor considered the extent of the respondent’s treatment following his injury in 1987. The Medical Assessor noted that the respondent was hospitalised for a period of time but did not have surgery. The Medical Assessor noted that the respondent had conservative treatment for this injury and for the problems with his shoulders preceding his injury on
27 September 2007. The Appeal Panel observes that that is consistent with what is contained within documentary evidence in that that evidence revealed that the respondent received cortisone injections and physiotherapy.
The Appeal Panel rejects the appellant’s submission to the effect that the Medical Assessor did not provide adequate reasons for his assessment.
The Appeal Panel observes that a Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[4] The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[5]
[4] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[5] Campbelltown City Counsel v Vegan [2006] NSWCA 284 at [122], 67 NSWLR 372; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
The obligation of a Medical Assessor does not require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other medical examiners.[6] Nor does it require the Medical Assessor to sit as a decision maker choosing between competing medical opinions put forward by the parties.[7]
[6] Wingfoot at [56].
[7] Kaur at [26].
The Appeal Panel rejects the appellant’s submission that the Medical Assessor erred by not providing any analysis of the reports of Dr Bruce or Dr Gehr or providing any commentary as to whether he accepted or rejected their respective assessments. As just said, a Medical Assessor does not sit as an adjudicator deciding which of competing medical opinions he or she should accept when assessing a worker’s impairment. The Medical Assessor must conduct his or her own assessment of a worker’s impairment and explain his or her assessment which does not involve the Medical Assessor having to explain why his assessment does not concur with an assessment another examiner has made.
The Appeal Panel also rejects the appellant’s submission that the Medical Assessor did not adequately explain why the respondent’s shoulder symptoms remain causally related to the injury the respondent suffered on 27 September 2007. The Medical Assessor explained that the respondent had increasing symptoms in his left shoulder after the injury on
27 September 2007, involving pain and stiffness in his left shoulder and subsequently had a similar increase in symptoms in the right shoulder due to overuse.
The MAC must be read as a whole. When that is done it is obvious, it seems to the Appeal Panel, that the Medical Assessor has concluded that the respondent’s “shoulder symptoms remained causally related to the injury on 27 September 2007” (to adopt the words of the appellant), because the respondent suffered an increase in symptoms of pain and restriction of movement in his left shoulder, which manifested from a pre-existing tear in his supraspinatis tendon in that shoulder, and also developed an increase in symptoms in his right shoulder from overuse which symptoms that manifested from a tear of the supraspinatis tendon in the right shoulder. In other words, the respondent had pre-existing tears in the supraspinatis tendon of each shoulder which were symptomatic before his injury but his injury caused an increase in symptoms from the tear in the tendon in his left shoulder which consequently resulted in his using his right shoulder more and increasing the symptoms from the tear in his tendon in that shoulder. The symptoms increased over time such that the respondent could no longer work.
In the Appeal Panel’s view that explanation is cogent and adequately explains the Medical Assessor’s reasoning.
The Appeal Panel also considers that the Medical Assessor provident cogent reasons for his conclusion that the proportion of the respondent’s permanent impairment that is due to the pre-existing condition is a third. Those reasons were:
(a)    The respondent had a pre-existing condition in his shoulder which an ultrasound revealed was a full thickness tear of the lateral two-thirds of the supraspinatis tendon in the left shoulder and a partial tear in the supraspinatis tendon in the right shoulder. At the time the respondent suffered injury on 27 September 2007 he was experiencing mild to moderate intermittent pain in his left shoulder and restricted movement in both shoulders.
(b)    The respondent developed increasing pain in his left shoulder and increasing restriction of movement of his left shoulder and also through overuse of his right shoulder developed similar symptoms in that joint.
(c)    The respondent was able to work with persistent moderate symptoms prior to suffering injury on 27 September 2007.
(d)    The respondent after a period of years following his injury ultimately had to cease work due to the symptoms he was suffering.
(e)    The bilateral shoulder condition that the respondent had at the time he suffered injury on 27 September 2007 contributes to the respondent’s current bilateral shoulder impairments.
Hence, the Medical Assessor identified the respondent had a pre-existing condition that contributes to the respondent’s current post-injury impairment. The Medical Assessor determined that a proportion of the respondent’s post-injury impairment is due to that pre-existing condition. The Medical Assessor’s determination that the proportion to which the pre-existing condition contributes to the respondent’s current post-injury impairment was one-third is based upon the history the Medical Assessor obtained regarding the respondent’s function of his shoulders immediately preceding his suffering injury on 27 September 2007 and the respondent’s functioning deteriorating after his injury such that by 2016 he was unable to work. As the respondent has submitted, the determination of the proportion to which a pre-existing condition contributes to a worker’s post-injury impairment will be based upon the clinical judgment of a Medical Assessor. As the respondent submitted reasonable minds may differ regarding that proportion. The Appeal Panel considers based upon the pathology that the respondent had in his shoulders as at the date of injury and his symptomatic experience before and after injury that various clinical examiners may have reasonably opined the degree of contribution was between 25% and 50%. Were the Appeal Panel to have a different opinion regarding what the deductible proportion is and substitute its opinion then it would not be correcting any error on the part of the Medical Assessor, but merely substituting its opinion.
In short, the Appeal Panel does not discern that the MAC contains a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 November 2022 should be confirmed.

[2023] NSWPICMP 96

16 March 2023