DETERMINATION OF APPEAL PANEL	
	
CITATION:	Steggles Pty Ltd v Yuan [2023] NSWPICMP 635	
		
APPELLANT:	Steggles Pty Limited	
		
RESPONDENT:	Junrong Yuan	
		
Appeal Panel		
		
MEMBER:	Jane Peacock	
		
MEDICAL ASSESSOR:	John Brian Stephenson	
		
MEDICAL ASSESSOR:	David Crocker	
		
DATE OF DECISION:	4 December 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant alleged error in the failure of the Medical Assessor to make a deduction under section 323 for the contribution of a pre-existing condition to the overall level of permanent impairment assessed and failed to give adequate reasons; Medical Appeal Panel not satisfied as to error; Held – Medical Assessment Certificate confirmed. 

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 25 August 2023 the employer Steggles Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 August 2023.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): 
•	the assessment was made on the basis of incorrect criteria, and
•	the MAC contains a demonstrable error.
3.	The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made. 
4.	Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5.	The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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
6.	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.
7.	The appellant did not seek that the worker 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 not necessary for the worker to undergo a further medical examination.
EVIDENCE
Documentary evidence
8.	The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 
Medical Assessment Certificate
9.	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 
10.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
11.	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. 
12.	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.
13.	The matter was referred to the Medical Assessor by the Personal Injury Commission (Commission) as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act): 	 
•	Date of injury:	01/06/09 – 01/01/19 
	
•	Body parts / systems referred:	Cervical spine
Left upper extremity
Right upper extremity
Scarring
	
•	Method of assessment:	Whole Person Impairment”	

14.	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)	
Cervical spine	01/06/09
to
01/01/19	Chap 4 P 4	P 392 T 15-05	7	0	7	
Left upper extremity		Chap 2 P 10	P 476 F 16-40
P 477 F 16-43
P 479 F 16-46
P 439 T 16-03	2	0	2	
Right upper extremity				14	0	14	
Scarring
		P 74 T 14.1		0	0	0	
Total % WPI (the Combined Table values of all sub-totals)	22	

15.	The employer appealed. The complaint was only in respect of the right upper extremity (shoulder) and cervical spine not as to their overall level of impairment assessed but as to the failure to make a deduction under s 323. There was no complaint on appeal about the assessment for the left upper extremity.
16.	In summary, the appellant submitted on appeal that the Medical Assessor erred when he made no deduction under s 323 and a one-tenth deduction should have been applied to take account of a pre-existing condition of the right shoulder and neck prior to commencing employment. The Medical Assessor failed to refer to the physiotherapist notes and also relied on a history that was inconsistent with the evidence.
17.	In summary, Mr Junrong Yuan (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.
18.	The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: 
Mrs Yuan advised that she worked in Steggles for about ten years.   Her tasking included quite heavy work in processing chickens and chicken components and also moving containers of stock.   As time went on, she started experiencing pain mostly in her right shoulder and also her neck.   To a lesser extent, her left shoulder was involved.   
She reported the condition and was initially referred to the company doctor, who was Specialist Occupational Physician, Dr Mary McGinty.   An MRI scan was taken and she was referred for physiotherapy.   Unfortunately, the condition continued.   She was then referred to Specialist Orthopaedic Surgeon, Dr Minas Petrelis.   After further evaluation, it was considered that the most appropriate clinical management was an arthroscopy of the right shoulder complex.   This was conducted in mid-September 2020.   At this procedure, Dr Petrelis carried out an acromioplasty.   It was identified that there was quite extensive tendinopathy of the supraspinatus, although no specific tears.
Unfortunately, she did not experience a particularly good result and the condition continued.   There has also been pain management medication.   She mentioned at this assessment that she was unable to take some of the medication, since this made her dizzy.   
She did her best to get back to work after the surgical procedure.   She was on light duties from August 2021 through to the end of the year in 2022, at which time her position was terminated, since she could not upgrade to full duties.
Present treatment:  
She takes analgesics and anti-inflammatories.   She also tries to keep herself fairly mobile and pays for aquatics exercising, acupuncture and massage, since insurance support for these facilities has been ceased.
Present symptoms:
Pain in the neck and the shoulders.   This is mostly focused to the right side of the neck and radiates up into the right side of the head and the face.   Gross restriction of movement of the right shoulder and to a lesser extent, the left.   Similarly, there is weakness on the right side.
Details of any previous or subsequent accidents, injuries or conditions:  
There is no previous condition of the cervical spine or either upper limb.   She mentioned that about three years ago she had a fall at home and hurt her lower back.   In studying the clinical literature, it looks as though she may have sustained a crush fracture of the lumbar spine, (which would have explained the rather painful way she walked at this assessment with a slight forward stoop).   
General health:  
This is fairly good.   The only other medication is antidepressants for associated psychological issues.
Work history including previous work history:  
Mrs Yuan originally comes from China.  She came to Australia in the year 2000.   In China she did office work.   In Australia she initially worked as a kitchen-hand for about nine years and after that, worked at Steggles.  
She is currently doing some part time work for her husband’s business.   This is mostly administration work and is difficult because of the rather strained relationship between the two of them.  Currently she is working on three days of the week for 15 hours a week.
Social activities/ADL: 
As advised, Mrs Yuan is married.   Her husband is fit and well and runs his own electrical company.   The couple live together in the same house, although Mrs Yuan advised that their relationship has now become very strained and effectively they are separated and she anticipates that in the near future they will divorce.   There are a couple of grown up daughters and four grandchildren.
Mrs Yuan is a non-smoker and non-drinker.   Her hobbies include listening to music and also being with her grandchildren.
She is able to drive but only for about ten minutes or so with any level of comfort.   At the place where she lives, her husband employs a cleaner once a week.
Most of her meals are delivered.   She does minimal cooking and relatively minimal shopping, although this is fairly nearby.”
		
19.	The Medical Assessor reviewed the special investigations as follows:

DATE	INVESTIGATION	RESULTS	
27/11/19	MRI scan cervical spine	No significant findings.	
09/01/21	Plain x-ray cervical spine		
23/03/22	CT scan cervical spine	Mild to moderate degenerative changes, particularly in the lower segments.	
13/03/20	MRI scan right shoulder	Supraspinatus tendinopathy and sub-acromial bursitis.	
21/04/20	MRI scan left shoulder	Similar features with bicipital tendinopathy, although less severe than on the right side.	
07/12/21	MRI scan right shoulder	The tendinopathy continues.	

20.	The Medical Assessor conducted a physical examination which he recorded and about which there is no complaint on appeal.
21.	The Medical Assessor summarised his diagnosis and findings as follows:
“(a) Summary of injuries and diagnoses: 
Mrs Yuan gives a history of hurting mostly her right shoulder associated with her neck and to a lesser extent, her left shoulder while carrying out arduous activities over a long period of time at a Steggles chicken factory.   This has resulted in quite severe tendinopathy of the supraspinatus on the right and to a lesser extent, on the left.  The condition has been managed by an acromioplasty on the right, which only gave her limited improvement.   The remainder of her clinical management has been conservative, which has not been all that effective.   The condition continues with no significant resolution.
(b) Consistency of presentation:
Mrs Yuan’s presentation was consistent.”
22.	There is no complaint on appeal about the overall level of WPI assessed for the right upper extremity and cervical spine.
23.	The Medical Assessor did not identify any prior condition. 
24.	The Medical Assessor made brief comment on the other evidence and medical opinion which was before him as follows:
“My assessment is very similar to that of Specialist Occupational Physician, Dr Uthum Dias in his report of 07/07/22.   There are, however differences in the different ranges of movement.   Dr Dias assesses 1% for the scarring, whereas I believe 0% is more appropriate.
Specialist Orthopaedic Surgeon, Dr Murray Hyde-Page in his report of 24/02/23, has calculated a very much lesser whole person impairment.”
25.	The Medical Assessor explained his reasons for making no deduction:
“There has been no pre-existing condition which would necessitate the application of any deduction.”
26.	There is no expert opinion in evidence where a deduction has been made under s 323.
27.	The IME qualified on the worker’s behalf did not make a deduction and nor did Dr Murray Hyde Page the IME qualified on behalf of the appellant did not make a deduction. 
28.	Of course the Medical Assessor must come to an independent assessment but he didn’t make a deduction either. The appellant says he was in error not to have done so because there are clinical notes in evidence which show the following:
“(a) 	she underwent physiotherapy to her right shoulder on 17 December 2008.
(b) 	she had right side neck pain on 29 January 2009.
(c) 	She had right neck pain on 12 May 2009.
(d) 	she had to emphasis home stretches to her neck (trapezius stretches) on 22 April 2009.”
29.	A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. Where the extent of the deduction would be too difficult or too costly to assess the deduction should be one-tenth unless that is at odds with the available evidence.
30.	The Medical Assessor has made no deduction, just like both other experts whose reports are in evidence.
31.	The Medical Assessor has taken a very clear history of 10 years employment, the nature and conditions of which were heavy and repetitive. 
32.	Apart from the clinical notes referring to the pain above, there is no ongoing consultation, no referral for radiological investigation, and no ongoing treatment. She was able to perform heavy duties in her employment for some 10 years prior to injury.
33.	The available evidence does not suggest that any pre-existing condition of the neck or right shoulder has contributed to the overall level of permanent impairment assessed and the Medical Assessor has made no error in not making a deduction under s 323. 
34.	Accordingly, the Appeal Panel will confirm the MAC.
35.	For these reasons, the Appeal Panel has determined that the MAC issued on 
3 August 2023 should be confirmed.