WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; lump sum claim for injury to cervical spine and left upper extremity (shoulder); worker appealed the assessment of the left upper extremity; complained on appeal that Medical Assessor (MA) did not apply correct criteria; _Held -_Appeal Panel found no error; Medical Assessment Certificate must be read as a whole and the MA has applied his clinical expertise to his findings on the day of examination in accordance with correct criteria; Medical Assessment Certificate confirmed.

1. On 25 November 2025 Ashley El Saleh (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by

Dr Doanld Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 October 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).

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.
2. The appellant requested that he be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
3. As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error and absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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.

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.

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

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.
2. 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.
3. The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:

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

Body parts/systems referred: Left upper extremity (shoulder) Cervical spine

• Method of assessment: Whole Person Impairment"

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

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)

P 476 F 16-40\

P 477 F 16-43

P 479 F 16-46

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

1. The worker appealed.
2. The complaint on appeal does not concern the assessment for the cervical spine but relates to the assessment of the left upper extremity (shoulder) only.
3. In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:

(a) did not adhere to prescribed methodology for evaluating the nature and extent of injury resulting in erroneous WPI assessment which was substantially different from the opinion of Dr Gehr (the IME qualified to provide an opinion on behalf of the appellant);

(b) failed to apply the correct criteria in assessing the peripheral nerve injury in the left upper extremity (shoulder), and

(c) did not consider the nerve conduction study.

1. In summary, the C & M Associates Pty Ltd (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors. The MAC was adequately reasoned, and the Medical Assessor correctly exercised his clinical judgment on the day of examination and accordingly, the MAC should be confirmed.
2. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
3. The Medical Assessor recorded the following history:

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

Mr El Saleh states, on 10/07/2023, while at work, he was lifting 20 litre drums of thinners from a pallet that was too high. The drum was stuck in Gladwrap, and when it came free unexpectedly, his left hand was caught, awkwardly pulling the arm down sharply, causing injury to his left shoulder and neck. He reported the incident to his managers and saw a Doctor the next day. An MRI scan revealed a labral tear in his left shoulder and 'disc issues' in his neck.

He underwent left shoulder surgery on 28/11/2023 with Dr Manish Gupta, which included a labrum repair and subpectoral biceps tenodesis. Mr El Saleh however continued to have pain and reduced range of motion. His last review with Dr Gupta was approximately 8-9 months ago, where it was noted he had a severe chronic shoulder injury with no further surgical options available, though a review in 12 months was offered if symptoms persisted.

He was also reviewed by Dr Samuel Kim, Neurologist and Dr Andrew Kam, a Neurosurgeon, for his neck pain and sensory disturbance. He was reportedly diagnosed with 2 bulging discs (C5/6 and C6/7). Dr Kam advised against surgery unless symptoms became severe and recommended activity modification and physiotherapy. No further follow-up is planned with Dr Kam.

A second opinion for his shoulder was conducted by Dr Wade Harper, a Shoulder and Elbow Surgeon, on 17/07/2024, regarding the ongoing pain and stiffness following surgery. At that review, it was thought that Ashley El Saleh had developed a post-operative capsulitis that would normally resolve by approximately 18 months post-surgery. Dr Harper recommended desensitisation and stimulation techniques for allodynia. He also commented that if stiffness persists beyond 2 years post-surgery, he may require some form of arthroscopic capsular release.

He attends physiotherapy once weekly, which involves manual techniques such as a massage gun-like device, massage, and suction to manage pain. This provides only temporary relief. He sees a Psychologist every 2-3 weeks for pain management related to the injury. For pain, he uses over-the-counter anti-inflammatories and has a prescription for medical marijuana, as he wishes to avoid opioid medications. He is not under the care of a Pain Specialist.

He experiences constant aching pain located in the front of the shoulder, radiating down into the upper arm and bicep. The pain is rated 4/10 at rest. Any movement, particularly elevation, causes the shoulder to lock up and the pain intensity increases to 10/10. He is unable to sleep on his left side due to pain and numbness. There is also associated weakness, and he reports dropping objects.

Neck pain he states is interconnected with his shoulder symptoms. Moving the shoulder causes shooting pain up the left side of his neck and to the back of the neck. At rest, he feels a constant pressure sensation on the left side of his neck. The pain can radiate to the back of his ear, causing chronic headaches. He also experiences some pain on the right side of his neck, but it is less severe.

• Details of any previous or subsequent accidents, injuries or condition:

He had a prior work-related injury to his finger 2-3 years before the current injury, which required surgery to repair ligaments. This was a WorkCover claim, and he returned to work 2 days later.

In or around 2019, Mr El Saleh documents he also suffered an injury to his lower back which settled with physiotherapy.

• Work history including previous work history if relevant:

He has a history of on-and-off factory and warehouse work. He also worked with his cousin installing air conditioners when he was younger but did not complete a trade. His longest held position was his role at the time of injury. He is not currently working.

Home Chores: He has difficulty with dressing, needing to put his left arm into his shirt first while keeping it low. He can shower independently, though it is painful.

Driving: He drives a manual car but does so infrequently and only for short distances, as it aggravates his shoulder pain. His brother drives him for longer distances.

Sports and Hobbies: Prior to the injury, he enjoyed walking his dog, going to the gym, playing football, and attending car shows and race track events. He is unable to participate in these activities currently. He reports he cannot go to the shops alone as he is unable to carry a basket or items."

1. The Medical Assessor made the following comment in relation to special investigations:

Disc degenerative changes seen at C5/6 and C6/7 levels. No areas of canal or exit root compromise seen. No rotator cuff pathology seen in the shoulder. There is, however, a complex labral tear, likely extending from 7 o'clock to 1 o'clock, assuming coracoid is 3 o'clock. There is an associated posterior paralabral cyst measuring 0.6cm x 0.7cm x 1cm and a further septated anterior paralabral cyst measuring up to 2.8cm in A-P dimension, 0.3cm in superior-inferiorly, and 1.7cm in coronal dimension.

Anchor screws posterior aspect of the glenoid in keeping with labral repair. Persistent fluid cleft postero-superior labrum from 10 to 9 o'clock position without significant paralabral cyst formation. Small glenohumeral joint effusion. Minor SASD bursal thickening. Biceps tenodesis consistent with the clinical history. No cuff tears detected.

Ultrasound guided steroid injection left glenohumeral joint

Disc bulge at C5/6 and C6/7 levels causing thecal indentation without significant foraminal narrowing or nerve root impingement. Mild disc oedema at C5/6. Incidental note is made of a cerebellar tonsillar descent by 6.6mm, raising possibility of Chiari 1 malformation.

There is evidence of dysfunction at the left C7/8 distribution. There is no evidence of focal neuropathy in the left upper limb. EMG of left C5-8 innervated muscles shows mild active denervation changes in the C7/8 innervated muscles.

1. The Medical Assessor conducted a physical examination and recorded his findings as follows:

"General assessment - Mr El Saleh appeared well. He walked into the room without an aid. He appeared comfortable during the interview but guarded his left arm. He kept his left elbow and shoulder adducted by his side throughout the consultation. When removing and replacing his shirt, he favoured the use of his right arm and did not lift his left arm above 45° of abduction.

There are 4 well-healed arthroscopy portal scars and a 2cm scar consistent with a biceps tenodesis incision. There was subjective altered sensation reported over the anterior aspect of the shoulder and in a C6 dermatomal distribution. Impingement signs were not able to be tested due to pain.

Rotator Cuff testing of supraspinatus, infraspinatus, subscapularis, and Yergason's test of biceps was grade 5 bilaterally.

There was tenderness on palpation over the cervical spine and paraspinal region, particularly the trapezius border at the neck.

Reflexes: Biceps 1+ symmetrical, Triceps 1+ symmetrical, Brachioradialis negative symmetrical. Hoffman's sign was negative. Grasp reflex was normal.

Power was grade 5/5 in the right and left upper limb distally on testing radial, median and ulnar nerve distributions. Myotomes proximally were difficult to test due to pain though remained grossly Grade 5."

1. The Medical Assessor summarised the injury and diagnosis as follows:

Mr El Saleh is a 34 year old, right-hand dominant male who sustained an injury to his left shoulder and cervical spine on 23/07/2023. He has undergone left shoulder surgery but continues to experience significant pain, stiffness, and functional limitation. His neck symptoms have been managed non-operatively with degenerative disc changes noted on MRI. He describes ongoing issues with chronic pain affecting his activities of daily living, work capacity, and mental health.

I did not identify any inconsistency with regard to the Worker's presentation.

The incident described by the Worker is consistent with the injury that has been suffered."

1. The Medical Assessor set out the facts on which his assessment of permanent impairment was based as follows:

"A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5."

1. The Medical Assessor explained the reasons for his assessment and his calculations as follows:

"My opinion and assessment of whole person impairment:

Left upper extremity (shoulder): 10% whole person impairment.

In making that assessment I have taken account of the following matters:

Review of the material provided and a detailed examination of the claimant.

DRE II: 5%: Clinical history consistent with injury, asymmetrical loss of range of motion, non-verifiable radicular complaints. Table 15-5 p 392 AMA-5.

ADL impairment 0% with a majority of his impairment relating to his ongoing shoulder symptoms.

Shoulder ROM: Fig 16-40, 16-43 & 16-46 p 476, 477 & 479 AMA-5.

1. The Medical Assessor explained where his opinion differed from other medical opinion as follows:

"My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:

Dr Raymond Wallace: Medicolegal Report on 10/03/2025 provided a 9% WPI for the left shoulder (10% with a 1% deduction) and 0% WPI for the cervical spine.

Dr Eugene Gehr: Medicolegal Reports on 23/12/2024 and 19/05/2025 provided a 29% WPI, comprising 23% for the left upper extremity (19% for peripheral nerve injury to the axillary nerve, combined with range of motion deficits) and 8% for the cervical spine.

My findings on review today are similar to that of Dr Wallace in regards to Mr El Saleh's shoulder symptoms. I did not note a clinically rateable axillary nerve impairment as Dr Gehr did at the time of his review. In my opinion however, Mr El Salah's neck symptoms do also contribute to his ongoing impairment."

1. The MAC must be read as a whole.
2. The Medical Assessor must make an independent assessment on the day of examination using his clinical expertise. He is clearly cognisant of the opinion of Dr Gehr, the IME qualified to provide an opinion on behalf of the appellant as he is of the opinion of Dr Wallace the IME qualified to provide an opinion on behalf of the respondent. The Medical Assessor has clearly and succinctly explained why his opinion differs from that of Dr Gehr. He explains that Dr Gehr rated 23% for the left upper extremity because he rated 19% for peripheral nerve injury to the axillary nerve and combined this with ROM deficits. However the Medical Assessor explained that on the day of examination he did not find a clinically rateable axillary nerve impairment. The Medical Assessor is entitled to rely on his clinical findings on the day of examination. He notes that his findings are similar to that of Dr Wallace in respect of the shoulder (but not in respect of the cervical spine because he found impairment and Dr Wallace did not).
3. The Appeal Panel notes that the appellant complained that the Medical Assessor did not consider the nerve conduction study. However the Medical Assessor is clearly cognisant of the findings of the nerve conduction study because he summaries them as set out above. The MAC must be read as a whole and whilst nerve conduction studies can be used as a guide, they cannot be solely relied upon and cannot displace the application of clinical judgment by the Medical Assessor which is what has occurred here. The Medical Assessor has taken them into account but has applied his clinical judgment to his findings on the day of examination as he is required to do. The Appeal Panel notes that the record of the findings on physical examination were thorough. The Appeal Panel notes that the nerve conduction studies showing evidence of dysfunction at the left C7/8 distribution has nothing to do with axillary nerve dysfunction. On clinical examination the Medical Assessor found subjectively altered sensation at the C6 distribution, but not in the axillary nerve distribution, and allowance was made for this by the Medical Assessor. Otherwise, the findings of the medical assessor were clinically any motor loss was not due to the axillary nerve. The Medical Assessor found normal peripheral nerve motor function after thorough testing on the day of examination and applying his clinical expertise to his findings on physical examination.
4. When the MAC is read as a whole it is clear that the Medical Assessor has properly applied the correct criteria in the Guidelines to his findings on physical examination on the day of assessment and followed all the proper protocols in undertaking his physical examination and the findings recorded are clear and cover all requisite matters. Specifically there is no peripheral nerve abnormality found on examination which would include the axillary nerve. The Appeal Panel can discern no error in the assessment of the left upper extremity (shoulder) and the MAC will be confirmed.
5. For these reasons, the Appeal Panel has determined that the MAC issued on