DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Flight Catering Ltd v Coumbias [2023] NSWPICMP 502
APPELLANT:	Qantas Flight Catering Ltd
RESPONDENT:	Chris Coumbias
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	9 October 2023
CATCHWORDS:	WORKERS COMPENSATION – Workplace Injury Management and Workers Compensation Act 1998; appellant employer alleged error by the Medical Assessor in the application of a one-tenth deduction under section 323 submitting that the extent of the deduction was inadequately reasoned.; the Appeal Panel was satisfied as to error because of inadequate reasons including the history taken; a re-examination was considered necessary; a one-tenth deduction was considered appropriate; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

 

1. 1. On 24 April 2023 the employer QANTAS Flight Catering Ltd 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 27 March 2023.

1. 1. 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.

1. 1. 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.

1. 1. 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.

1. 1. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed
      
      1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed(AMA 5).

PRELIMINARY REVIEW

 

1. 1. 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.

1. 1. 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 necessary for the worker to undergo a further medical examination.

EVIDENCE

Documentary evidence

 

1. 1. 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.

Further medical examination

 

1. 1. Dr Mark Burns of the Appeal Panel conducted an examination of the worker on 23 August 2023 and reported to the Appeal Panel.

Medical Assessment Certificate

 

1. 1. 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

 

1. 1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

 

1. 1. 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.

1. 1. 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.

1. 1. The matter was referred to the Medical Assessor by the Commission as follows:

“The following matters have been referred for assessment (s 319 of the 1998 Act):

•	Date of injury:	10/07/08 (deemed)
•	Body parts / systems referred:	Right upper extremity (shoulder)Left upper extremity (shoulder consequential)
•	Method of assessment:	Whole Person Impairment”

 

1. 1. 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 s 323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Right upper extremity (shoulder)	10/07/08(deemed)	Ch 2 P 10	P 476 F 16-40P 477 F 16-43P 479 F 16-46P 506 T 16-27P 439 T 16-03	23	1/10	21
Left upper extremity (shoulder consequential)				17	0	17
Total % WPI (the Combined Table values of all sub-totals)					34

 

1. 1. The employer appealed. The complaint was only in respect of the right upper extremity (shoulder). There is no complaint on appeal about the overall level of whole person impairment (WPI) assessed of 23% for the right upper extremity (RUE). The appeal concerns only the extent of the deduction made by the Medical Assessor under s 323 for the RUE. There was no complaint on appeal about the assessment for the left upper extremity.

1. 1. In summary, the appellant submitted on appeal that the Medical Assessor erred in the making of a deduction of one-tenth under s 323. The appellant submitted:

(a) The Medical assessor erred in applying a one-tenth deduction under s 323.

(b) The Medical Assessor erred in failing to provide reasons as to why he considered it costly or difficult to determine the deduction and failing to address whether a one-tenth deduction was at odds with the evidence.

(c) That it would not have been costly or difficult to determine the appropriate s 323 deduction, and that a one-tenth deduction is at odds with the available evidence and constitutes a further error on the part of the Medical Assessor.

 

1. 1. In summary, Mr Chris Coumbias (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.

1. 1. The Medical Assessor took a history as follows:

“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

Mr Coumbias joined Qantas Flight Catering in 1988. It looks as though he eventually finished up some 20 years later in 2008. During this time, he had worked particularly arduously in this field. His occupation was predominantly cleaning which involved heavy, arduous work with both upper limbs. A lot of this was associated with high pressure hosing.

He initially developed pain and dysfunction of his right shoulder. He saw his Doctor and then came under the care of Specialist Shoulder Surgeon, Dr George Murrell. Dr Murrell carefully assessed him and considered that the best option would be to perform a shoulder joint replacement on the right side. This was conducted in October 2006. Unfortunately, Mr Coumbias developed a severe infection associated with this event. This necessitated extensive clinical management with antibiotics, both in tablet form and intravenously. It is understood that Specialist Infectious Disease Physician, Dr Bell, was involved in this clinical management. Eventually, the infection was brought under control.

He was never able to return to his previous occupation.

He later came under the care of Specialist Shoulder Surgeon, Dr Jeffrey Petchell. The condition of his right shoulder was further reviewed and it was considered that he would be better off with replacement of the right shoulder joint with a reverse shoulder joint. This was conducted by Dr Petchell in March 2016. It seems to have given him a reasonable result although he continues to have gross dysfunction.

The left shoulder had been deteriorating as well and in March 2019, almost exactly 3 years after the reverse shoulder joint replacement on the right shoulder, Dr Jeffery Petchell carried out a standard (not reversed) joint replacement on the left shoulder.

All of Mr Coumbias’ further shoulder management has been conservative, mostly associated with physiotherapy procedures.

Present treatment:

There is no further specific treatment for his shoulders.

Present symptoms:

Pain in both shoulders with reduced movement and power. The right side is more severely affected than the left.

Details of any previous or subsequent accidents, injuries or conditions:

Attention is drawn to an occasion which occurred in 1979. Mr Coumbias had a dog which got involved in a fight with another dog. In his attempt to try to separate the two, he sustained a dislocation of his right shoulder. For this, he came under the care of Specialist Orthopaedic Surgeon, Dr George Weisz, who carried out a shoulder procedure which stabilised the right shoulder and he was able to continue with his heavy duty work which included joining Qantas Catering some 9 years later.

General health:

This is not all that good. Mr Coumbias takes medication for:

(a) Cardiac condition

(b) Gout

(c) Type 2 diabetes

(d) Depression

He also uses a sleep apnoea machine.

Work history including previous work history:

Mr Coumbias comes from a Greek background. He was born in Egypt. He came to Australia in 1975. He has experience as a Marine Fitter and working on hydraulic machines.

He then became more involved in victualing supplies with a milk run, sandwich shop, supermarket and then in a chicken shop.

In mid-year 1988, he joined Qantas Flight Catering. It looks as though he was there for about 20 years. He finished up in 2008. There has been no further work nor any further training for work.

Social activities/ADL:

Mr Coumbias is married. His wife was with him at this assessment. She has her own modest constellation of arthritic features. He is a non-smoker and non-drinker.

He is not involved in any physical recreational or remedial activities. His only hobby is watching the television.

He is able to drive but only for short, local trips.

He is not involved in any housework. The couple now live in a unit and there is no garden.”

 

1. 1. The Medical Assessor reviewed the special investigations as follows:

DATE	INVESTIGATION	RESULTS
14/09/16	Plain x-ray right shoulder	Reverse shoulder joint replacement.
03/03/20	Plain x-ray shoulders	Right side reverse shoulder joint replacement in satisfactory position. Left shoulder standard joint replacement.

 

1. 1. The Medical Assessor conducted a physical examination which he recorded and about which there is no complaint on appeal.

1. 1. The Medical Assessor summarised his diagnosis and findings as follows:

“Summary of injuries and diagnoses:

Mr Coumbias initially hurt his right shoulder in 1979 when he sustained a non-work related dislocation. This was managed by a subsequent arthroscopic procedure. Although this gave him improvement at the time, it would be most likely that this subsequently resulted in accelerated degenerative change of the right shoulder complex.

With his working time at Qantas, a lot of this work was arduous and over the 20 years or so that he was there, he started developing quite severe aches and pains in the right shoulder complex and to a lesser extent in the left shoulder complex.

An early attempt in 2006 was conducted on the right shoulder with a joint replacement but unfortunately this was infected. There was a long period of many months in which he needed extensive antibiotic treatment. Later this joint replacement was revised with a reverse shoulder joint replacement which gave him a better result although he continued to have very gross dysfunction of the right shoulder complex. During this period of time with the severe deterioration of the right shoulder, the left shoulder also deteriorated. This also went through a replacement procedure in March 2019 although this was more successful.

At this assessment, he had very gross dysfunction of the right side and moderate dysfunction of the left side.

Consistency of presentation:

Mr Coumbias’ presentation was completely consistent.”

 

1. 1. There is no complaint on appeal about the overall level of WPI assessed at 23% for the RUE.

1. 1. The Medical Assessor highlighted the prior injury as follows:

“(a) Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?

Yes.

(b) If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.

Attention is drawn to the previous injury to the right shoulder complex with the associated dislocation and subsequent surgical procedure.”

 

1. 1. The Medical Assessor made brief comment on the other evidence and medical opinion which was before him as follows:

“All examining Specialists have identified relatively similar levels of impairment in the shoulders. On this occasion, I gained the impression that his range of movement of the left shoulder was considerably better than it had been with all of the other assessing Specialists.

Specialist Orthopaedic Surgeon, Dr James Bodel, in his report of 30/07/20 deducts one tenth from the condition of the right shoulder because of the pre-existing dislocation with the dog fight.

Specialist Orthopaedic Surgeon, Dr Paul Robinson, deducts the full impairment from each shoulder. With the greatest of respect, I believe that this deduction is quite excessive.”

 

1. 1. The Medical Assessor explained his reasons for a one-tenth deduction as follows:

“Attention is drawn to the previous occasion in 1979 where Mr Coumbias sustained a dislocation of his right shoulder which was eventually managed by a surgical stabilisation procedure. This would have resulted in accelerated degenerative changes of the right shoulder complex. It is therefore assessed that a deduction of one tenth would be appropriate.

There is no history of any pre-existing dysfunction or circumstances of the left shoulder.”

 

1. 1. 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.

1. 1. The Appeal Panel considered that a re-examination was necessary because the Medical Assessor did not adequately explain his reasoning process for making a one-tenth deduction in circumstances where the history in respect of the period following the pre-existing right shoulder injury of 1979 was inadequate.

1. 1. In these circumstances the Appeal Panel considered that a re-examination was necessary. Medical Assessor Mark Burns was appointed to conduct the examination and he reported to the Panel as follows: (emphasis in original)

“REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL

Matter No: M1- W7077/22

Appellant: Qantas Flight Catering Limited

Respondent: Chris Coumbias

Date of determination: 27 March 2023

Examination Conducted By: Dr Mark Burns

Date of Examination: 23 August 2023

Attendance: Chris Coumbias and Helen Coumbias, his wife

 

1. 1. The workers medical history, where it differs from previous records.

Mr Coumbias confirmed the history taken by Medical Assessor Tim Anderson with the following clarifications.

He stated that after the second shoulder replacement carried out on the right side by Dr Petchel in March 2016 that he had a further infection in the right shoulder and required more antibiotics. He continued with antibiotics for a period of 6 months after the operation and then ceased as he had developed some kidney issues. He reported that Dr Petchell had told him that she should have no further operations on the right shoulder because of the possibility of a latent infection.

Mr Coumbias was asked for a more detailed history of his pre-existing medical problem in 1979 involving his right shoulder. He stated that he had sustained a dislocation of the right shoulder and came under the care of Dr George Weisz, Orthopaedic Surgeon. Dr Weisz carried out surgery on the right shoulder in what appears to have been a stabilisation of the shoulder. From the history I obtained from Mr Coumbias today I believe that he had right shoulder instability. Following the stabilisation operation, he had physiotherapy for a short period of time and was given a set of home exercises to carry out. These included the use of a Theraband to build up strength in the right rotator cuff as well as walking his hand up the wall using his right arm and using a pully. The exercises were designed to build up strength in the rotator cuff as well as mobilise the shoulder. After completion of his physiotherapy program, he attended swimming to build up the shoulder further. When questioned about ongoing symptoms in the right shoulder after he had completed treatment, he stated that he did have pain on and off but could not remember how often and how severe. He reported having little memory of the period between 1979 and when he commenced work with Qantas Catering in 1988.

When questioned about further problems with the right shoulder following commencement with Qantas Flight Catering, he could not remember having any further difficulty up until the period between 2007 and 2008. I questioned him about the investigations, which were carried out between 1994 and 2019 (listed in the appeal application). I noted that he had plain x-rays and a CT scan of the right shoulder in April 1994 as well as a further ultrasound of the right shoulder in August 1994. He could not remember what the x-rays or scans were carried out for and did not remember whether he had any further treatment at that time. He stated though that his shoulder was functional, and he was able to continue with the heavy work as a Catering Assistant with Qantas Flight Catering. I did note that Mr Coumbias was quite a poor historian.

 

1. 1. Additional history since the original Medical Assessment Certificate was performed

Mr Coumbias reported that he had commencement further treatment approximately 3 weeks ago. This was for both his left and right shoulders. He is having acupuncture, which initially was twice a week and is currently every second week. He found that he was unable to sleep due to pain in each shoulder and finds that the acupuncture is giving him some mild improvement.

He reports that he is not seeing any medical practitioners at the current time and is having no formalised physiotherapy. His only medication is Panadol, which he takes 2 tablets at night daily.

With respect to current symptoms, he reports that on the right should he has pain over the medial side of the shoulder, which goes towards the right side of the chest. Approximately 3 times per week he reports having numbness in his right hand, which involves the dorsum of the hand and all fingers. It appears though that this only occurs for a period of 10 – 15 minutes and then resolves. Associated with this he reports also having pain and discomfort in his neck.

With respect to his left shoulder this is currently better than the right. He states that his left shoulder and left arm currently get quite tired as he is doing most activity with his left arm.

 

1. 1. Findings on clinical examination

Mr Coumbias was 167cms tall and weighed 112.5kgs. He was noted to walk slowly with a shuffling gait and reported not only pain in both shoulders but also in his neck and low back.

Formal examination of his left and right shoulders revealed global tenderness on both sides. Active range of movement in both shoulders was unfortunately impossible to assess. On an attempt to assess the range of movement in the left shoulder using a goniometer his flexion stopped at 90° with extension of 20°. Abduction was only 30°. It was impossible to measure adduction, internal rotation, or external rotation because he refused to move the arm. It had been noted that when he moved to take his shoes off that he had a greater range of movement than was displayed on formalised testing.

With respect to attempting to assess the right shoulder he would not move the shoulder in any plane. His arm was kept down beside his side. I noted that there was marked inconsistency in the range of movement in both shoulders and I also noted that there was significantly less range of movement than found initially by Medical Assessor Tim Anderson.

Further examination of both shoulders could not be carried out as he reported severe pain and discomfort on both sides.

 

1. 1. Results of any additional investigations since the original Medical Assessment Certificate

Mr Coumbias has had no further investigations since the original Medical Assessment Certificate.

Signed: DR MARK BURNS

Date: 23 August 24, 2023”

 

1. 1. The Appeal Panel adopts the findings and the report of Dr Burns.

1. 1. The deduction of one-tenth is considered appropriate and not at odds with the available evidence, including the more detailed history taken from the worker on re-examination and noting the heavy work able to be undertaken by the worker in the course of his employment with the appellant employer.

1. 1. The contribution of the prior injury, condition, or abnormality should be taken into account and a deduction of one-tenth is not at odds with the available evidence.

1. 1. Accordingly, the Appeal Panel will confirm the MAC.

1. 1. For these reasons, the Appeal Panel has determined that the MAC issued on
      
      27 March 2023 should be confirmed.