DETERMINATION OF APPEAL PANEL	
	
CITATION:	Clould Nine Limos Pty Limited v Testar [2022] NSWPICMP 318	
		
APPELLANT:	Cloud Nine Limos Pty Limited	
		
RESPONDENT:	Peter Testar	
		
Appeal Panel:	Member John Wynyard
Medical Assessor Mark Burns
Medical Assessor Drew Dixon	
		
DATE OF DECISION:	5 August 2022	
		
CATCHWORDS: 	wORKERS cOMPENSATION -  Appeal against 1/10th deduction pursuant to section 323 of the Workers Compensation Act 1998 (1998 Act); whether Medical Assessor (MA) had erred in not referring to the 1/2 deduction assessed by the worker’s expert; whether the MA had failed to read or properly consider all the material before him; whether MA had given adequate reasons; Held — MA gave adequate reasons as to the 1/10th deduction; the cause of the deduction was the same as that identified by the worker’s expert but the MA assessed a different impairment; MA under no obligation to refer to worker’s expert’s assessment; Western Sydney Local Health v Chan applied; appellant employer’s allegation that MA failed to consider or consider properly the material before him rejected as speculative and contrary to the presumption of regularity; Jones v Registrar WCC applied; Medical Assessment Certificate confirmed. 

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 19 April 2022, Cloud Nine Limos Pty Limited, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 22 March 2022.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): 
•	the assessment was made on the basis of incorrect criteria,
•	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.	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.
5.	The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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 7 February 2022, following consent orders made on 22 January 2022, the delegate of the President referred this matter to the MA for an assessment of WPI caused to the:
(a)	right upper extremity (shoulder);
(b)	cervical spine, and
(c)	left upper extremity (shoulder) (consequential condition)
-	all of which were deemed to have occurred on 11 June 2019.
7.	Mr Testar was employed as a chauffeur limousine driver, usually driving a small bus to transport aircrew between Sydney airport and their residential hotels. This task involved loading and unloading baggage which was often very heavy and not subject to a weight restriction.
8.	As a result he started experiencing pain first in his right shoulder, then his left shoulder and his neck became increasingly stiff and painful. 
9.	He underwent surgery to the right shoulder with Dr Ivan Popoff in late May 2020 after some conservative management of that condition. He developed capsulitis following that surgery but his condition has eased. 
10.	He was under the care of Dr Andreas Löefler for his cervical condition and that condition was managed conservatively. The left shoulder condition deteriorated as time went by. Although Dr Popoff has recommended further surgery to the right shoulder, Mr Testar does not wish to have any further surgery. 
PRELIMINARY REVIEW
11.	The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
12.	The appellant employer did not request a re-examination of the worker by an MA who is a member of the Appeal Panel. This matter concerns the application of s 323 of the 1998 Act, and a re-examination is not necessary as it concerns evidence that is already before the Panel.
EVIDENCE
Documentary evidence
13.	The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination. 
Medical Assessment Certificate 
14.	The parts of the medical certificate given by the MA that are relevant to the appeal are, set out, where relevant, in the body of this decision. 
SUBMISSIONS 
15.	Both parties made written submissions which have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
16.	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. 
17.	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.	
18.	The issue raised in this matter concerns the application of the provisions of s 323 of the 1998 Act, the MA having deducted 10% pursuant to that provision for the left shoulder assessment.
The MAC
19.	The MA made the following assessments:
(a)	right shoulder – 13%. No s 323 deduction - 13%
(b)	left shoulder – 11%. 1/10th deduction - 10%
(c)	cervical spine – 7%. No s 323 deduction - 7%
Total 27% 
20.	With regard to the left shoulder, the MA noted that Mr Testar came to surgery in 2009 with Dr Doron Sher. The MA said:
“I was unable to identify specifically what was carried out, although it did result in Mr Testar being off work for about a year and therefore, it would be reasonable to assume that this was a fairly substantial procedure”.
21.	In the templated question at [8] [e] and [f] the MA found that a proportion of the WPI was due to a previous injury. He said:
“Attention is drawn to the previous condition of the left shoulder in 2009 where there was surgery under the care of Dr Doron Sher. This condition kept him off work for over a year.”
22.	In giving his brief comments at [10c] as to other medical opinions, he said:
“My ultimate findings are similar to those of Specialist Orthopaedic Surgeon, Dr James Bodel in his report of 24/05/21. At least the principles are identical, although at this assessment, Mr Testar had a more reduced range of movement of the left upper extremity.”
23.	Paragraph 11 of the MAC is the templated question relating to any deduction made by an MA. The MA said:
“Attention is drawn to the left shoulder where there was a surgical procedure in 2009 by Dr Doron Sher. Since this kept him off work for about a year, it is likely that there would have been subsequent accelerated degenerative change. There is therefore a one-tenth deduction from the impairment assessment of the left shoulder.”
SUBMISSIONS
The appellant employer 
24.	The appellant employer submitted that the MA made a demonstrable error by assessing a 1/10th deduction pursuant to s 323 of the 1998 Act that was “manifestly inadequate”.
25.	We were referred to the explanation given by the MA at [11] of the MAC. 
26.	The appellant employer however submitted that the MA fell into error by not mentioning the amount of the deduction allowed by the worker’s medico-legal specialist, Dr Bodel, which was one-half of the assessed WPI for the left upper extremity. 
27.	The demonstrable error was said to consist of:
(a)	not providing adequate reasons for the 1/10th deduction;
(b)	failing to perform the correct assessment, and 
(c)	failing to give any or any proper consideration to the medical and lay evidence. 
28.	We were referred to the relevant clauses of the Guides, chapters 1.27 and 1.28, which, we would observe in passing, reflect some of the terms of s 323. 
29.	It was submitted that included in the consideration of the application of s 323 was a requirement that the assessment not be at odds with all of the available evidence. The appellant employer submitted that the available evidence included the assessments of Dr Bodel, Dr Rowden, and the imaging studies, along with the appellant’s statements. It was submitted that the finding by the MA himself that there had been a substantial pre-existing condition in the left shoulder. together with the other evidence, indicated that a more substantial deduction should have been made.
30.	The appellant employer reproduced Mr Testar’s statement of 4 December 2019 at [24]:
“24. 	I submitted a workers compensation claim in 1982 ….. I also had an injury to my left shoulder in about 2009 when I was working with Makita Australia at Eastern Creek. I had a ligament removed from my left shoulder and was off work for approximately one year or a bit less. I received a payment of about $20,000 for my knee and for my shoulder around $80.000.00 as a lump sum payment I do not remember which insurance companies the claims were through.”
31.	We were referred to a supplementary statement of 20 September 2021 without being referred to any specific paragraph. The appellant employer simply said that it confirmed the previous left shoulder injury and surgery.
32.	We were referred to the opinion of Dr James Bodel of 24 May 2021. Dr Bodel noted the left shoulder injury. He said:
“The left shoulder is a consequential injury. There is clearly pre-existing pathology in the region of the left shoulder and he had previous surgery with a good outcome. The nature and conditions of his work has caused further aggravation, acceleration, exacerbation and deterioration to the left shoulder. At the moment, there is no indication for further interventional treatment in that area.”
33.	In relation to the deduction applicable for the prior injury to the left shoulder Dr Bodel said:
“Clearly, there has been previous pathology in the region of the left shoulder which is contributing to the overall level of impairment. It is my view that 50% of the total 4% Whole Person Impairment is due to the previous injury and the surgery in 2009, and the remaining 50% is due to the aggravation, acceleration, exacerbation and deterioration caused by the injury on 11 June 2019. There is therefore a 2% Whole Person Impairment for this injury.”
34.	The appellant employer also referred to reports of Dr Neville Rowden, orthopaedic surgeon. 
35.	Dr Rowden was retained as the appellant employer’s medico-legal expert. He reported on 23 December 2020 and noted that Mr Testar appeared to develop some left shoulder symptoms around May 2020 because he was sleeping on the left shoulder. In his later report of 27 January 2021 Dr Rowden was of the view that that aggravation had ceased.  
36.	The appellant employer submitted that in light of this evidence the more appropriate deduction would have been of one-half for the condition in the left shoulder, as assessed by Dr Bodel. 
37.	The appellant employer also submitted that the MA had not provided sufficient reasons for his assessment under s 323. It was alleged that the MA had not provided reasons for disagreeing with Dr Bodel’s assessment of one-half. 
38.	We were referred to Pereira v Siemens Ltd as to the appropriate steps to be taken in the application of s 323. It was submitted that the error made by the MA was that because he had noted that the 2009 left shoulder injury and surgery had been a “reasonably substantial condition,” he should have addressed the extent of the deduction more particularly. 
39.	It was submitted that the previous payment of workers compensation for that injury was relevant and that he should have had regard to it in his reasons. 
The respondent worker
40.	The respondent through Ms Tavianatos submitted that the MA’s findings were based on various considerations including the worker’s presentation on the day and medical reports. The MA had the advantage of his examination of Mr Testar on the day and applied his clinical judgment accordingly. 
DISCUSSION 
41.	Section 323 of the 1998 provides relevantly:
“(1) 	In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury(whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) 	If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
42.	Chapter 1.27 and 1.28 provide:
“1.27 	The degree of permanent impairment resulting from pre-existing impairment should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury. 
1.28 	In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as 'the deductible proportion' and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
43.	In Western Sydney Local Health District v Chan Adams J referred to dicta of the High Court:
“In Wingfoot Australia Pty Ltd v Kocak [citation omitted] the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel’s task in that case is analogous to the role of the [MA] under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
‘[47] 	The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [authority omitted]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[48] 	The reasons that [the relevant Victorian legislation] obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.’”
44.	Accordingly an MA does not make a demonstrable error by not applying or even discussing the assessments of other practitioners whose reports were before him. 
45.	He is required to rely on his clinical experience and medical expertise to reach an independent conclusion. That conclusion does not depend on whether he accepts the opinions of other assessors.
46.	Bearing these principles in mind, we note the following:
(a)	In his statement of 20 September 2021, Mr Testar said:
“4 	In or around 1982, I suffered an injury to my left knee. I made a workers compensation claim for the injury at the time.
5 	In or around 2009, I suffered an injury to my left shoulder. The injury required an arthroscopic procedure which was conducted Dr Doran Sher at the time. I had a good outcome following surgery, and after some time of conservative treatment, I was able to achieve a good range of motion.
6 	Both these matters had resolved by the stage of my current workers compensation, as I was able to work without any restriction at Cloud Nine.”
(b)	The prior left shoulder injury was 10 years old and it does not appear that the applicant was suffering any residual symptoms as a result of the surgery he had with Dr Sher in 2009. There seems to be no reason to doubt Mr Testar’s evidence to that effect. The cause of his present impairment, Mr Testar said, was his need to favour the left shoulder because of the surgery on the right shoulder in 2019. 
(c)	The MA acknowledged that he had read Dr Bodel’s report by referring to his differing examination results. He had no obligation to discuss Dr Bodel’s s 323 opinion, and he clearly dismissed it as having any relevance to his deliberations. Both Dr Bodel and the MA considered the same cause, namely the injury of 2009. Dr Bodel gave his assessment, but the MA had a different opinion, and explained that Mr Testar had suffered subsequent accelerated degenerative change for which he assessed the 1/10th deduction. 
(d)	That finding was open to him, and was based on his assessment on 22 March 2022, the date of consultation. His path of reasoning was expressed clearly. 
(e)	There is some tension between the provisions in Chapter 1 of the Guides and those of s 323 of the 1987 Act, which is not relevant in the present case, but for which reason we rely on the terms of the statute. We would observe that the MA did not rely on the provisions of s 323(2) to deem the impairment to be 1/10th, but rather identified the actual cause of the impairment. 
(f)	The investigations support that view, in the opinion of the medical experts on the Panel. The MRI scan of 21 September 2020 showed minor degenerative changes in the acromioclavicular joint of such a nature that there was no reason to suspect any pre-existing impairment beyond the 1/10th found by the MA.
(g)	Further, we note the absence of any fatty degeneration of the rotator cuff muscles, which is an objective confirmation that the 2009 surgery had been successful. It again confirmed Mr Testar’s evidence that he had made a full recovery.
47.	The appellant’s submissions that the MA had failed to give any or proper consideration to the medical and lay evidence were self-evidently based on the proposition that if the MA did not mention a particular document, he must not have read it, or read it adequately. This submission may be rejected, as it is firstly based on speculation, and secondly, there is a presumption of regularity that attends administrative decisions, and the presumption applies to an Approved Medical Specialist. It follows that it may be accepted that the MA read and considered the material that was referred to him.
48.	For these reasons, the Appeal Panel has determined that the MAC issued on 22 March 2022 should be confirmed.