DETERMINATION OF APPEAL PANEL	
	
CITATION:	Nguyen v Bakers Maison Australia Pty Ltd [2025] NSWPICMP 448	
		
APPELLANT:	Nguyen	
		
RESPONDENT:	Bakers Maison Australia Pty Ltd	
		
Appeal Panel		
		
MEMBER:	Marshal Douglas	
		
MEDICAL ASSESSOR:	Dr Mohammed Assesm	
		
MEDICAL ASSESSOR:	Dr Drew Dixon	
		
DATE OF DECISION:	24 June 2025	
		
CATCHWORDS: 	wORKERS cOMPENSATION -  Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the Medical Assessor (MA) erred by not assessing appellant’s impairment of the appellant’s right shoulder in the circumstance where the appellant exhibited an inconsistent presentation during MA’s examination of her; respondent conceded the MA erred; Held – Appeal Panel found Medical Assessor erred; appellant re-examined; MAC revoked; new certificate issued.  
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WORKERS COMPENSATION DIVISION
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

Matter number:	M1-W22289/24	
Appellant:	Mai Thanh Nguyen	
Respondent:	Bakers Maison Australia Pty Ltd	
Date of decision:	24 June 2025	
Appeal Panel:		
Member:	Marshal Douglas	
Medical Assessor:	Mohammed Asses	
Medical Assessor:	Drew Dixon	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 5 March 2025 Mai Thanh Nguyen, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Gorman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 February 2025.
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). 
RELEVANT FACTUAL BACKGROUND
6.	The appellant was employed between 31 October 2017 and 31 March 2022 by Bakers Maison Australia Pty Ltd (the respondent) as a process worker. Her work required her to move trolleys of bread around a factory. On 1 November 2021 she suffered an injury to her left wrist while doing that. She claimed that due to this injury she came to suffer conditions affecting her right shoulder, elbow, wrist and neck. 
7.	The appellant claimed weekly payments of compensation due to an incapacity for work her injury and also claimed compensation for permanent impairment from her injury. She relied on a report of general surgeon Dr Neil Berry dated 15 September 2023 to support her claim for compensation for permanent impairment. Dr Berry had assessed the degree of her permanent impairment from her injury at 15% whole person impairment (WPI).
8.	The respondent’s insurer disputed the appellant had sustained conditions affecting her right shoulder, right elbow, right wrist and cervical spine as a result of the injury to her left wrist and denied that the respondent was liable to pay the compensation the appellant claimed. This led the appellant to initiating proceedings in the Personal Injury Commission (Commission). The dispute relating to whether the appellant suffered consequential conditions from her injury was referred to a member of the Commission, namely Mr John Isaksen, who found that the appellant suffered “a consequential condition affecting her right wrist, right elbow and right shoulder as a result of the injury she sustained to her left wrist on 1 November 2021”. Member Isaksen also found that the appellant did not suffer a condition affecting her cervical spine as a consequence of her left wrist injury. He entered an award for the respondent with respect to the appellant’s claim for compensation in relation to that injury.
9.	Member Isaksen also remitted the matter to the President of the Commission so that it could be referred to a Medical Assessor to assess the degree of the appellant’s permanent impairment resulting from her injury of 1 November 2021. A referral was duly issued to the Medical Assessor on 1 October 2024 specifying the body parts to be assessed as “left upper extremity (wrist), right upper extremity (wrist, elbow, shoulder) as a consequential condition”.
10.	The Medical Assessor examined the appellant on 30 October 2024 and, as said, issued the MAC on 20 February 2025. In that he certified he assessed the degree of the appellant’s permanent impairment from her injury is 0% WPI. He explained that he found that the appellant had normal range of motion of her left wrist and no tenderness. He also explained that he found the appellant had normal movement of her right wrist and right elbow. The appellant does not raise an issue in her appeal about those findings of the Medical Assessor and his consequent assessment, based on those findings, that she had no permanent impairment from her injury relating to her left wrist and right wrist and right elbow.
11.	The concern the appellant raises in her appeal is that the Medical Assessor said that she had “inconsistent movement of the right shoulder” and that “there was no pathological explanation for her symptoms and signs” of her right shoulder and “no reason why they would be plausibly related to the work injury”. He concluded that “there was therefore no assessable impairment”, which the appellant contends is wrong. 
12.	The Medical Assessor within the MAC tabulated his findings of the maximum range of movement he found the appellant had of her shoulders. He considered the appellant exhibited inconsistent movement of her right shoulder and he noted that he asked her “why the movement was not similar to the ease of movement she demonstrated as she removed her jacket” and why her movement was “inconsistent between attempts and different from previous examination”, to which the appellant respondent that her pain varied.
PRELIMINARY REVIEW
13.	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.
14.	As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel found, for reasons explained below, that the MAC contained a demonstrable error, which it would need to correct and it was necessary for the Appeal Panel to examine the appellant so as to obtain the necessary clinical data to do that. 
EVIDENCE
15.	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 
16.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
17.	In summary, the appellant submitted that the Medical Assessor erred by not assessing her to have any impairment of her right shoulder. She highlighted the Medical Assessor was able to measure the motion of her right shoulder. She submitted that the Medical Assessor could not refuse to assess the degree of her permanent impairment relating to her right shoulder because he found that she had inconsistent movement. 
18.	The appellant submitted that the Medical Assessor did not apply the correct criteria to assess the degree of her permanent impairment in that he did not abide the instruction within paragraph 1.36 of the Guidelines which permitted the Medical Assessor to apply an impairment rating if he, based on his clinical judgment, found the measurements of her right shoulder were not plausible and consistent. 
19.	The appellant further submitted that the Medical Assessor did not adequately document the inconsistent movement he found her to have. The appellant submitted that, consequently, the Medical Assessor did not provide a proper explanation for his assessment.
20.	In reply, the respondent conceded that the MAC contains a demonstrable error relating to the Medical Assessor’s assessment of the degree of the appellant’s permanent impairment of her right upper extremity. The respondent submitted that the Appeal Panel could correct that error by using the range of motion of the appellant’s right shoulder the Medical Assessor tabulated in the MAC. 
FINDINGS AND REASONS 
21.	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. 
22.	In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 
23.	Paragraph 1.36 of the Guidelines reads as follows:
	“AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.” 
24.	The Medical Assessor recorded in the MAC the maximum movement he found the appellant had of her shoulders in each of the planes of motion for the shoulder. He said that he found the appellant demonstrated inconsistent movement between attempts. It is apparent therefore that the Medical Assessor repeated testing of the appellant’s movement of her shoulders and, by so doing, established that she demonstrated inconsistent movement of her shoulder during examination. Further, the Medical Assessor found the appellant demonstrated a more restricted range of movement of her shoulders during his examination of her than that which he observed her whilst she was removing her jacket. 
25.	Given that the Medical Assessor found the appellant’s movements of her shoulders were inconsistent, he ought to have applied paragraph 1.36 of the Guidelines. It is apparent from the MAC that the Medical Assessor was of the view, based on his findings from his examination of the appellant’s range of movement of her right shoulder and what he observed casually was her movement of her shoulder, that what he recorded was the maximum movement of her shoulder was unreliable such that her the level of impairment of impairment she had could not be verified by her maximum movement. The Medical Assessor did not indicate what the minimum movement of her shoulder was. 
26.	It is nevertheless apparent that what the Medical Assessor measured was the appellant’s right shoulder movement during formal examination and also what he observed casually her movement to be while she was removing her coat revealed she had a restricted range of movement of her shoulder. The Appeal Panel considers that, because of that, the Medical Assessor ought to have applied paragraph 1.36 of the Guidelines and exercised his clinical judgement to modify a rating of impairment based on the minimum movement the appellant demonstrated and to provide his reason for so modifying it. What the Medical Assessor did however was, as the appellant submitted, not to make an assessment at all, and by so doing he erred, such that the MAC contains a demonstrable error. Further, by not applying paragraph 1.36, he based his assessment on incorrect criteria.
27.	As said, because the MAC contains a demonstrable error and because the assessment was not based on correct criteria, the Appeal Panel needed to examine the appellant in order to remedy those matters. Medical Assessor Mohammed Assem examined the appellant on 10 June 2025. Below is his report to the Appeal Panel on his examination:
“Ms Mai Thanh Nguyen was examined by Dr Mohammed Assem on 10 June 2025 at the Personal Injury Commission consultation rooms, Oxford Street, Darlinghurst, with the assistance of Mr Trung Nguyen, NAATI-certified Vietnamese interpreter (NAATI No. 54954).
Pre-Accident Medical History 
Ms Nguyen is a 47-year-old right-handed lady who lives with her husband and three children in a property at Revesby. At the time of the accident, she was employed by Bakers Maison as a process worker for approximately five years. Prior to working at Bakers Maison, Ms Nguyen worked for approximately 12 years as a nail beautician. Immigrated to Australia from Vietnam in 1996. 
History of the Accident
On 1 November 2021, while carrying a tray of pastry weighing approximately 5 to 10 kilograms, she struck the radial border of her left wrist against a trolley frame. She experienced immediate pain and swelling in her left wrist. She reported the injury to her supervisor but continued working. She was diagnosed with De Quervain’s tenosynovitis that was confirmed with ultrasound on 9 November 2021. Over the following weeks, she began to experience pain in her right shoulder, right wrist, and elbow that she attributed to compensatory overuse. On 13 December 2021, Dr Tuan Kiet Nguyen issued a medical certificate certifying her unfit to work for four weeks.
She was managed with splinting, rest, analgesics, and physiotherapy. She underwent imaging on 2 December 2021 which showed common extensor tendinopathy of the right elbow, and an ultrasound on 4 December 2021 mild tenosynovitis of the right extensor carpi radialis longus and extensor carpi radialis brevis in the extensor compartments. 
She consulted rheumatologist Dr Patapnaian on 2 February 2022 who documented De Quervain’s tenosynovitis, dorsal tenosynovitis of the right wrist, and radial epicondylitis. She received a total of four steroid injections: two in the left wrist, one in the right wrist, and one in the right shoulder without any benefit.
On 1 March 2022, she commenced light duties for four hours a day, reduced to three hours on 7 March 2022, using only her right arm until she ceased work entirely on 1 April 2022. She has remained off work since that time and takes Panadol for symptomatic relief.
Current Symptoms
Ms Nguyen experiences constant pain primarily in the radial border of the left wrist, pain between the right 4th and 5th metacarpals, right lateral epicondyle, anterior right shoulder, and radiating to the right side of the neck. She stated, ‘From here to here. Up to the neck and the left side.’ These symptoms limit her ability to perform daily activities and manual tasks. She is unable to lift, carry, or engage in repetitive hand movements. 
Examination
Ms Nguyen appeared well and sat comfortably throughout the clinical interview. She ambulated with a normal gait. On presentation, she was observed wearing elastic wrist supports over both wrists, each containing small heat packs.
She was advised prior to the examination not to perform any manoeuvre that could exceed her tolerance or cause harm. Her height was 156 cm, and her weight was 55 kg.
Wrist Examination
Inspection revealed no scars, deformities, or trophic changes. There was no alteration in skin colour, temperature, or perspiration. Hair and nail growth were within normal limits. Active range of motion of both wrists was slightly reduced and symmetrical. Results from repeated measurements were as follows:
Wrist Movement	Right(°)	RUEI (%)	Left (°)	LUEI (%)	
Flexion	50°	2%	50°	2%	
Extension	50°	2%	60°	0%	
Radial Deviation	20°	0%	20°	0%	
Ulnar Deviation	30°	0%	30°	0%	
Total	RUEI: 4%		LUEI: 2%		
There was focal tenderness over the radial border of the left wrist. Finkelstein’s test was positive on the left, consistent with De Quervain’s tenosynovitis.
Elbow Examination
Full range of motion was preserved in both elbows for flexion, extension, pronation, and supination. Tenderness was noted over the lateral epicondyle of the right elbow. However, provocative testing for lateral epicondylitis were negative.

Shoulder Examination
Shoulder Movement	Right (Degrees)	Right UEI (%)	Left (Degrees)	Left UEI (%)	Normal Range (Degrees)	
Flexion	90°	6%	150°	2%	180°	
Extension	40°	1%	50°	0%	50°	
Abduction	90°	4%	150°	1%	180°	
Adduction	50°	0%	50°	0%	50°	
Internal Rotation	80°	0%	80°	0%	80°	
External Rotation	60°	0%	60°	0%	60°	
Total	RUEI	11	LUEI	3	 	
When informed that the documented shoulder movements were lower than those recorded by previous medical assessors, Ms Nguyen maintained that these limitations were consistent and longstanding. She considered her left shoulder to be ‘normal’ and pain free despite demonstrating restricted movement on repeated testing.
Whole Person Impairment
Based on clinical findings and consistent with the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA5), the following impairments are assigned:
Right Upper Extremity (RUE)
Ms Nguyen presents with persistent pain and functional limitation in both the right shoulder. Based on range of motion measurements and impairment values provided in Tables 16-40 to 16-43 (AMA5, pp. 476–479), she qualifies for 11% Upper Extremity Impairment (UEI) of the right shoulder.
Per Section 16.4c – Method for Motion Impairment Calculation, AMA5 guides allow comparison with the contralateral joint to establish a baseline. It states:
‘If a contralateral 'normal' joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint.’
In this case, the left shoulder, though mildly restricted, is considered functionally normal by the claimant. Therefore, 3% UEI for the left shoulder is deducted from the right shoulder’s impairment, yielding a net 8% UEI for the right shoulder.”
28.	The Appeal Panel considers Medical Assessor Assem’s examination of the appellant’s shoulders is thorough. His findings of her movement were based on repeated testing. The Appeal accepts and adopts his findings from his examination. Based on his findings the appellant has 8% upper extremity impairment of her right shoulder. Eight percent upper extremity impairment converts to 5% WPI. The Appeal Panel assesses the degree of the appellant’s permanent impairment from her injury to be that.
29.	For these reasons, the Appeal Panel has determined that the MAC issued on 20 February 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	M1-W22289/24	
Applicant:	Mai Thanh Nguyen	
Respondent:	Bakers Maison Australia Pty Ltd	

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor David Gorman 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 NSW workers compensation guidelines 	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
	% WPI 	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)	
Left upper extremity (wrist)	1/11/2021	Chapter 2	Section 16.4	0%	-
	0%	
Right upper extremity (wrist, elbow, shoulder)		Chapter 2	Section 16.4	7%	-
	5%	

Total % WPI (the Combined Table values of all sub-totals) 
	
5%