DETERMINATION OF APPEAL PANEL	
	
CITATION:	McNamara v Stahmann Farms Enterprises Pty Ltd [2024] NSWPICMP 593 	
		
APPELLANT:	Randy McNamara	
		
RESPONDENT:	Stahmann Farms Enterprises Pty Ltd	
		
Appeal Panel		
		
MEMBER:	John Wynyard	
		
MEDICAL ASSESSOR:	Greg McGroder	
		
MEDICAL ASSESSOR:	James Bodel	
		
DATE OF DECISION:	21 August 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Appeal against the finding of no maximum medical improvement: whether Medical Assessor (MA) failed to apply Chapters 1.15 and 1.16 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; whether adequate reasons given; MA found reduction in range of movement in the subject shoulder was significant over a period of five months in three separate examinations, being the two medicolegal specialists; reduction in range sufficient to suggest a progressive impairment but no investigations of the shoulder had been performed; MA advised deferral of assessment for 12-18 months and was unable to say whether the impairment was permanent; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 17 April 2024 the appellant, Randy McNamara, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 March 2024.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment)
RELEVANT FACTUAL BACKGROUND
6.	On 6 March 2024 this matter was referred to the Medical Assessor for assessment of WPI caused by injury to the right upper extremity (shoulder), ulnar nerve, carpal tunnel (TEMSKI/scarring) which occurred on 22 July 2020.    
7.	Mr McNamara was employed as a farm hand for the respondent, which operated a pecan nut farm.  Whilst doing repetitive lifting Mr McNamara developed pain along the back and ulnar aspect of his wrist together with some numbness in his right hand.
8.	Nerve conduction studies demonstrated carpal tunnel syndrome and Mr McNamara came to a release on 21 October 2020, which was of no benefit.  The orthopaedic surgeon reported that the procedure had eliminated some of his symptoms.
9.	An MRI was subsequently arranged of the right wrist on 6 May 2021 which revealed some pathology in the form of tears. 
10.	Further surgical treatment was undertaken on 3 September 2021, which resulted in non-union.  Consequent revision, fixation and grafting was undertaken on 18 February 2022.
11.	Further nerve conduction studies revealed severe median nerve dysfunction of the right wrist and Mr McNamara went on to have a revision carpal tunnel release, which was also unhelpful. The ulnar plate was then removed. 
12.	He was referred to Dr Hedrick, neurologist, who indicated that there was electrophysical evidence of median nerve disturbance on both wrists, but that the right wrist was no worse than that shown in past nerve conduction studies, and perhaps improved.  Dr Hedrick thought there may have been contribution from sensory neuropathy, as Mr McNamara is diabetic.
13.	The Medical Assessor certified that the maximum medical improvement had not occurred.
PRELIMINARY REVIEW
14.	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.
15.	Mr McNamara sought a re-examination by a Medical Assessor on the Panel, but as no error was made in the MAC, no re-examination was possible.
EVIDENCE
Documentary evidence
16.	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
17.	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 
18.	Both parties made written submissions which have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
19.	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. 
20.	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. 
21.	Mr McNamara appealed against the finding that maximum medical improvement had not been reached.
The MAC
22.	At [5] of the MAC the Medical Assessor noted the range of motion for the shoulders, the elbow and the wrists. 
23.	He noted that the range of motion in the fingers was slow but normal and he noted a grade II sensory change in the median nerve distribution of the right hand.
24.	There were no investigations available for the Medical Assessor to review. In his summary the Medical Assessor said at [7]:
“Summary of injuries and diagnoses:
Mr McNamara developed pain in his right wrist, repeatedly operating a blower handle on machinery at work. He has subsequently undergone a number of surgical procedures, which have been ineffective. Mr McNamara has significant pain and limitation of function, for which a clear explanation has not been found.
Consistency of presentation:
Mr McNamara was cooperative throughout the examination.”
25.	At [8] the Medical Assessor indicated that maximum medical improvement had not been reached and with regard to the shoulders and he thought that it would take 12 – 18 months for that to occur.  He also noted that the right upper extremity (shoulder, wrist) was affected by previous injury, pre-existing condition or abnormality.
26.	At [10b] in explaining his decision, the Medical Assessor said:
“Whilst I would be able to determine impairment subsequent to surgery that 
Mr McNamara has undergone on his right wrist, his right shoulder has not been formally assessed and furthermore, from available report, the range of motion in the shoulder is significantly decreasing, suggesting a pathology in the shoulder associated with progressive impairment.”
27.	The Medical Assessor made the same comments about maximum medical impairment when considering the reports of Dr Porteous and Dr Powell at [10c]:
“With respect to the report by Dr Porteous dated 18 October 2023, he recorded a range
of flexion and abduction in the right shoulder at 150°. This is significantly greater than
the range of motion I have detected on examination today, suggesting the right shoulder could not be assessed as being at MMI.
With respect to the report by Dr Powell dated 10 November 2023, he has noted “slight 
limitation of elevation of both shoulders but other movements were full’. This again suggests that the right shoulder could not be regarded as MMI.”
28.	 At [10d] of the MAC, the Medical Assessor stated:
“I am unable certify [sic] that the impairment is permanent, and that the degree of permanent impairment is fully ascertainable.” 
SUBMISSIONS
Appellant
29.	Mr McNamara submitted that the Medical Assessor’s finding that he had not attained maximum medical improvement was incorrect. 
30.	It was submitted that the Medical Assessor had not complied with the requirements of Chapters 1.15 and 1.16 of the Guides and had thus fallen into error.   He had “abrogated his duty to follow the Guides” by “merely” comparing the medicolegal assessments and contrasting them with his examination.  Moreover, it was submitted that the Medical Assessor did not provide adequate reasoning “except for the fact his findings were different”.
31.	We were referred to Ferguson v State of NSW as authority for the proposition that the Medical Assessor in that case had not properly considered and applied the definition of maximum medical improvement as set out in the Guides.  We note, however, that this description was inapt to describe the facts and issues in Ferguson, with respect.  The facts in Ferguson had nothing to do with the concept of maximum medical improvement, and we can only assume that the appellant has cited the wrong case.
32.	Notwithstanding, the appellant submitted that an application of the appropriate guidelines would have shown that maximum medical achievement had indeed been reached.  This was particularly so, as the competing medico-legal experts had both agreed that maximum medical improvement had been reached, Mr McNamara said.
33.	Mr McNamara asserted that a demonstrable error had been made where the Medical Assessor noted that he could not find a clear explanation for Mr McNamara’s pain and limitation of function. This finding was said to be inconsistent with “fundings on the material”. Injury, Mr McNamara said, was not in dispute, and the Medical Assessor “did not enquire to Appellant about the source of [the appellant’s] pain and limitation of function”.  Moreover, 
Mr McNamara argued, the finding was inconsistent with the Medical Assessor’s statement that Mr McNamara had been cooperative throughout the examination. 
34.	Mr McNamara also argued that a further demonstrable error had been made in the manner in which the Medical Assessor had applied s 323 of the 1998 Act without providing any WPI.
35.	A diagnosis was given but not explained, and the Medical Assessor had not referred to the medical evidence on which he justified the deduction. 

Respondent 
36.	The respondent referred to the explanation made by the Medical Assessor that 
Mr McNamara’s right shoulder had not been formally assessed and that the range of motion was decreasing. 
37.	The respondent referred to the report of Dr Porteous, the appellant’s medicolegal expert, noting there was no diagnosis made regarding the right shoulder in his report of 
18 October 2023.  The appellant did not rely on any radiological or other report which diagnosed pathology in the right shoulder. 
38.	The respondent observed that the Medical Assessor compared Mr McNamara’s presentation at his assessment with those carried out by Dr Porteous and Dr Powell. It was submitted that the significant differences in the range of motion recorded by each of the three specialists was the justification for the Medical Assessor not finding that maximum medical improvement had been reached. 
39.	The respondent noted that those three assessments were performed within a period of around five months between 12 October 2023 and 19 March 2024.  The diminishing range of motion measurements revealed over that period was, it was submitted, in fact consistent with Chapter 1.15 of the Guides, as those measurements indicated to the Medical Assessor that the range of motion in the right shoulder was not stable.  
40.	So far as the opinion regarding the application of s 323 of the 1998 Act was concerned, the respondent conceded that the Medical Assessor had erred in applying a deduction where there was no assessment of WPI made.  The respondent submitted that such a deduction could be made when maximum medical improvement had been reached.  
41.	This however did not materially affect the outcome and there was no reason to revoke the MAC on that basis, it argued.
CONSIDERATION
42.	Chapter 1.15 – 1.16 provide as follows:
“Maximum medical improvement
1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”
43.	Paragraph 1.34, which relates to the refusal of treatment, is not presently relevant.  We note the reliance by Mr McNamara on the provisions of Chapter 1.15 – 1.16 and his submission that the reasons given by the Medical Assessor “abrogated his duty” to follow them.  That submission must be rejected.  
44.	Chapter 1.15 requires the Medical Assessor to be satisfied that the worker’s condition is “well stabilised”.  Although the appellant sought to minimise the Medical Assessor’s reasons for not being so satisfied, the crux of his decision was well explained.  
45.	Firstly, there had been no formal assessment of the shoulder. There were no investigations by way of ultrasound, X-ray or MRI.  Dr Andrew Porteous, occupational physician, whilst finding that Mr McNamara had a 3% WPI as a result of shoulder limitation, failed to give any diagnosis as to its cause.  In his report to Mr McNamara’s solicitors dated 18 October 2023, he stated that the carpal tunnel release surgery and the right ulnar revision open reduction internal fixation with grafting surgery had failed to improve Mr McNamara’s symptoms. 
Dr Porteous had earlier described those symptoms as “pain in the right wrist and hand and tingling and pins and needles, that continued to build up” after the date of injury, 
22 July 2020.  The carpal tunnel release was performed on 21 October 2020 and an ulna shortening osteotomy was performed in early September 2021, which went on to non-union. Mr McNamara underwent a further right carpal tunnel release procedure at the end of October 2022, during which he had the right ulnar revision open reduction referred to above. Dr Porteous reported:
“Unfortunately, this failed to improve his symptoms and he has continued with significant pain and neurological symptoms in the right arm in the hand to above the wrist and at times up to the shoulder.”
46.	When describing Mr McNamara’s current condition, Dr Porteous said:
“Mr McNamara reports chronic right hand and distilled right forearm chronic pain, tingling, pins and needles and burning, always 8/10 on a pain scale. However, if he does use it, it is referred up at that level through the elbow and up to the right shoulder. The right hand is always cold and he wears a glove on it constantly which seems to help…”
47.	The description given by Dr Porteous does not indicate that the shoulder symptoms were then well stabilised. They appeared to occur only occasionally, and it was not clear over what period of time they had been noticeable.  Dr Porteous did not give a diagnosis regarding the right shoulder.  His diagnosis concerned the right wrist, hand and forearm, which he thought showed features of complex regional pain syndrome.  His assessment of WPI regarding the right shoulder was made pursuant to Chapter 2.14 of the Guides, namely the abnormal range of movement.
48.	For the employer, Mr McNamara was assessed by Dr James Powell, orthopaedic surgeon, about four weeks later on 10 November 2023. Dr Powell identified five surgical procedures that had been performed on Mr McNamara’s right hand.   He noted complaints of radiating pain and muscle tightness to the shoulder at times, and a “slight limitation of elevation of both shoulders”.
49.	In a supplementary report dated 21 December 2023, Dr Powell was asked to comment on the report of Dr Porteous. Dr Powell said:
“My assessment differs from that of Dr Porteous in that I did not identify any involvement at the shoulder for which any impairment assessment is applicable. (Mr McNamara has symmetric slight limitation of motion which is age related.)”
50.	It is in this context that the Medical Assessor explained that there was a significantly decreasing range of motion, which was suggestive of a pathology associated with progressive impairment. The comparison with the ranges of motion measured by 
Dr Porteous, Dr Powell and himself were such that he was unable to be satisfied that the shoulder condition was well stabilised.  
51.	Secondly, Chapter 1.15 requires the Medical Assessor to be satisfied that the degree of permanent impairment is unlikely to change substantially in the next year. The Medical Assessor stated that he was unable to certify that the impairment was permanent and that its degree was fully ascertainable.  It is clear from that opinion that the Medical Assessor was not satisfied that the degree of permanent impairment was unlikely to change substantially in the following year.
52.	It can thus be seen that, far from “merely” comparing the medicolegal assessments, it was his comparison with the ranges of movement, which significantly decreased over a short period of time between October 2023 and March 2024, that was the basis of his determination. 
53.	So far as Chapter 1.16 applied, whilst the Medical Assessor suggested that the cause of the right shoulder symptomatology was likely to be rotator cuff disease, which was a pre-existing condition,  his explanation was not conclusive, as it was placed in the templated part of his decision relating to deductions pursuant to s 323 of the 1998 Act.  However, he did state that the assessment should be deferred for 12 to 18 months. In the medical situation defined by the Medical Assessor, the Panel is satisfied that this advice is sufficient compliance with Chapter 1.16.  The difficulty was that the range of motion in the right shoulder had reduced so significantly in recent times, that more time was needed to see whether it would improve, or even returned to normal. In the complex history of Mr McNamara’s injuries, which were predominantly due to his wrist and elbow symptoms, such caution was required.
54.	For these reasons, the Appeal Panel has determined that the MAC issued on 27 March 2024 should be confirmed.