Bell View Park Stud Pty Ltd v Watts

DETERMINATION OF APPEAL PANEL
CITATION:	Bell View Park Stud Pty Ltd v Watts [2025] NSWPICMP 163
APPELLANT:	Bellview Park Stud Pty Limited
RESPONDENT:	Jacinta Anne Watts
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	13 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of the lumbar spine; the employer appealed submitting insufficient findings and inadequate reasons for finding persistent radiculopathy post-surgery for allowing 3% whole person impairment (WPI) for activities of daily living (ADLs) and making no deduction under section 323 in respect of the pre-existing abnormality of the spine; Held – Appeal panel found error in respect of the allowance for radiculopathy; Appeal Panel confirmed the 3% WPI for ADLs and made a deduction of one-tenth under section 323; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 December 2024 the employer Bellview Park Stud Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 November 2024.
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.
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.
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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

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.
The appellant did not request that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel for it to make a determination.

EVIDENCE

Documentary evidence

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

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

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

FINDINGS AND REASONS

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.
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.
The matter was referred by the Personal Injury Commission to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):

•

Date of injury:

29.12.17

•

Body parts / systems referred:

Lumbar spine

•

Method of assessment:

Whole Person Impairment”

The Medical Assessor issued a MAC as follows:

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 AMA5 Guides

% WPI

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)

Lumbar Spine

29.12.17

Chapter 4,

pp 24-30

Chapter 15, 15.4,

Table 15-3,

pp 384-388; DRE IV

25%

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

25%

The employer appealed.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made a demonstrable error for reasons which included the failure to give adequate reasons or having adequate regard to the available evidence and thereby falling into error in the following respects:
(a)    finding 3% for radiculopathy;
(b)    allowance of 3% activities of daily living (ADLs), and
(c)    making no deduction under s 323.
In summary, the respondent worker Jacinta Anne Watts (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed for reasons which included that the examination and reasoning was adequate and it is clear on the face of the examination findings that the criteria for radiculopathy were satisfied that the allowance of 3% for ADLs was appropriate and that there should be no deduction under s 323.
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 medical 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.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant,
so with an adequate record of examination findings it can readily be understood by the reader that the correct criteria under the Guidelines have been applies.
The Medical Assessor recorded the following history:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Watts stated that for an extended period, her usual work duties entailed significant physically demanding tasks. These included handling multiple bales of hay, riding, walking and feeding horses and driving heavy vehicles.
I have noted the nominated date of injury of 29.12.17. Ms Watts stated that through 2017 she developed variable pain to the low back extending to both buttocks and lower limbs, more posteriorly.
She attended Dr Hirosha Dissanayake, General Practitioner of Worrigee (Nowra), on 28.12.17. A CT scan examination was arranged for the subsequent day.
Ms Watts indicated that CT-guided injections were conducted on 10.1.18 and 17.1.18.
She was requiring oral medication. Physiotherapy was arranged.
I have noted that investigation included MRI examination and bone scan.
Ms Watts was reviewed by Associate Professor Ravi Cherukuri, Consultant Neurosurgeon of Wollongong.
The indication for early surgical treatment was discussed. Ms Watts stated that she was placed on a public waiting list for this. She indicated that based upon discussions she had with her employer, apparent delays arose with submission of the workers’ compensation claim.
I have noted that Ms Watts underwent a posterior L5/S1 interbody lumbar fusion at Wollongong Hospital performed by A/Prof Cherukuri. Based upon a review of the operation report, the intervention included L5/S1 discectomy, L5/S1 laminectomy and bilateral L5 and S1 rhizolysis.
Ms Watts indicated that post-operatively she became aware of hypoaesthesia to the plantar aspect of the left foot.
She indicated that she moved to Wodonga in 2021. As a consequence, she was reviewed by another General Practitioner. Specialist referral was arranged with
Dr John McMahon, Consultant Neurosurgeon of West Albury. Further referral was arranged for her to attend Dr Brett Todhunter, Pain Consultant of Albury.
A further CT-guided injection was arranged. Ms Watts also underwent a Ketamine infusion which appeared not to provide her with symptomatic benefit.
I have noted that Ms Watts proceeded to a trial insertion of a spinal cord stimulator. A permanent device was inserted on 14.3.23. This reportedly has provided some benefit.
Present treatment:
Ms Watts is on the oral agents, Palexia and Endep.
She now attends a General Practitioner in Murchison, Victoria. She had remained in the care of Dr Todhunter, however, she was further referred to Dr Terence Lim, Rehabilitation and Pain Consultant of Melbourne. Telemedicine consultations have followed after the initial face to face consultation.
Input is also being provided by a Psychologist and Psychiatrist.
Ms Watts utilises hot packs and a home spa.
She is not currently attending physiotherapy treatment.
·    Present symptoms:
Ms Watts is continuing to experience constant variable pain to the back, more so to the low back, from a moderate to “strong” degree. Pain continues to extend to both buttocks and lower limbs posteriorly and at times, below knee level.
Ms Watts reports a generalised feeling of stiffness of the back with limitation with range of motion which she feels is contributed to by pain, muscular spasm and mechanical factors.
She continues to have a feeling of ‘numbness’ to the plantar aspect of the left foot. She also notices an occasional feeling of weakness affecting the lower limbs.
She reportedly has had some constipation which has been attributed to medication.
Ms Watts considers that she is anxious and depressed.
·    Details of any previous or subsequent accidents, injuries or condition:
She reported that she has suffered an episode of concussion.
·    General health:
Ms Watts has reportedly otherwise been well.
·    Work history including previous work history if relevant:
It has been indicated that Ms Watts had been employed as an Assistant Manager at the Belle View Park Stud located in the Nowra region.
That employment had commenced in July 2014. She stated that she was made redundant in 2019.
She reported that she had been certified fit to undertake suitable work duties from September 2019 and had continued with that employer up to November 2019. Despite the recommendations, she indicated that she was substantially undertaking normal work duties.
Ms Watts stated that during the COVID-19 pandemic she had attended classes in hairdressing. She had reportedly worked in an outlet undertaking this for approximately six months.
She is presently not in employment. She stated that she is now in receipt of a total and permanent disability benefit. Her partner is a paid carer.
With respect to previous employment, she reported that she had worked as an Assistant Nurse in an equine veterinary clinic for approximately 1-2 years.
She had earlier been a Police Officer for approximately one year.
With respect to educational and related background, it has been indicated that Ms Watts had undertaken studies in relation to hairdressing. She had completed her training to become a Police Officer. She had also undertaken studies in relation to graphic design and equine science.
Ms Watts had attended secondary school to Higher School Certificate level.
·    Social activities/ADL:
Ms Watts is in a permanent relationship. She has two sons from a previous marriage.
She reported that she smokes approximately 2-3 cigarettes per day but has not taken alcohol recently.
Concerning sports, hobbies and interests, she has previously generally enjoyed outdoor activities. These have included those related to horses. She had played netball at school.
With respect to activities of daily living, she reported sleep disruption as a consequence of pain.
She needs to vary her seated and standing postures.
I have noted that Ms Watts lives in a single storey dwelling on a 40-acre property.
She is unable to undertake household chores. She does endeavour to carry out some cooking.
She does not attend to any gardening activities.
She reported that she requires daily assistance from her partner with respect to showering and dressing/undressing.”
The Medical Assessor made the following comment in relation to special investigations:
“Earlier in this certificate has been outlined the radiological investigations that were available at the time of the assessment. It has been indicated that radiological reports have also been included in the referral documentation.”
He had noted earlier in the MAC as follows:
“List any imaging studies provided by the worker which were not listed in the documentation provided:
I had the opportunity of reviewing the following radiological films without accompanying reports:
MRI examination (5.6.18) of the lumbosacral spine
MRI examination (7.6.19) of the lumbosacral spine
Further radiological reports have been noted contained in the referral documentation.”
The Medical Assessor conducted a physical examination and recorded his findings as follows:
“Ms Watts was a cooperative woman who initially had some anxiety pertaining to the consultation. She appeared to become more relaxed as it proceeded.
Her weight was 55kg, lightly clothed, with a height of 158cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 48-63kg.
General inspection of the trunk demonstrated some degree of kyphosis of the thoracic spine.
There were multiple surgical scars. There was a transverse scar of approximately 3cm overlying the lower thoracic spine.
A further scar in relation to the implantable device was noted to the region overlying the left buttock. This was oblique, mildly erythematous and approximately 5cm in length. A healed longitudinal surgical scar of approximately 7cm was noted to overlie the lumbar spine. This was flat and pale in colour. The spinal cord stimulator was palpable in the vicinity of the scar to the left buttock.
Truncal range of motion was mildly limited but more prominently so with anterior sagittal rotation (forward flexion) such that Ms Watts could just reach to knee level with her fingertips while standing.
Ms Watts exhibited a slow symmetric gait when observed walking within the confines of my office.
Active straight leg raising was approximately to 30° right side and 20° left side with low back discomfort reported with testing.
Girth measurements within the lower limbs were approximately as follows: 41cm (right thigh); 41.5cm (left thigh); 34cm (right calf); 34cm (left calf).
Motor system examination within the lower limbs was non-contributory. The reflexes were present and symmetrical.
Sensory system examination revealed hypoesthesia with light touch and point pressure sensation to the lateral aspect of the foot and that to the plantar surface.
The Babinski responses were normal with both toes downgoing.”
The Medical Assessor summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
I have noted copies of multiple MRI examination reports pertaining to the region of the lumbar spine. These have demonstrated changes consistent with an L5/S1 disc protrusion. The study of 7.6.19 had been reported also as demonstrating changes consistent with some degree of “foraminal compromise”.
It is apparent that Ms Watts has required interventional surgical treatment of the type alluded to in the body of this certificate. The current clinical presentation is consistent with a left-sided S1 sensory radiculopathy.
· consistency of presentation:
Ms Watts presented with a straightforward and undemonstrative manner. There were nil overt features of embellishment upon the history or augmentation on physical examination. As such, it is considered that consistency was present.”
The Medical Assessor explained his assessment of permanent impairment of the lumbar spine as follows:
“My opinion and assessment of whole person impairment
It is apparent that an opinion is sought in relation to a determination of whole person impairment pertaining to the region of the lumbar spine with reference to the relevant guides. A final whole person impairment of 25% has been determined
In making this assessment, I have taken account of the following matters:
History, physical examination and referral documentation.
An explanation of my calculations (if applicable)
It is apparent that Ms Watts has undergone surgical treatment by way of fusion at the L5/S1 level. This equates with a DRE Category IV rating with reference to the SIRA Workers’ Compensation Guidelines, ie 20-23% WPI.
It is apparent that Ms Watts is now in receipt of a total and permanent disability pension. She requires regular assistance from her partner who is a paid carer for her. This includes assistance with showering, dressing and undressing. As such, a 3% weighting for activities of daily living is appropriate. The base determination, therefore, is 23% WPI.
With respect to modifiers for surgery and reference to the SIRA Workers’ Compensation Guidelines, Chapter 4, 4.37 (pg 29) indicates that 3% is given in cases of a residual radiculopathy. I do not consider that the other modifiers as outlined in Table 4.2 apply.
In relation to radiculopathy, the Guidelines outline in Section 4.27 (pg 27) that two or more criteria need to be satisfied with at least one of these being a major criterion. It is considered that the following are present in Ms Watts’ case:
•    Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution (major criterion);
•    Findings on an imaging study consistent with the clinical signs (minor criterion).
It is considered that there is nil evidence of a previous injury or condition that needs to be taken into account by way of contributory impairment that would necessitate any deductions.”
The Medical Assessor explained where his opinion differed from other medical opinion as follows:
“I have had the opportunity of reviewing the medical reports (29.3.21, 16.7.21) prepared by Dr James Bodel, Consultant Orthopaedic Surgeon of Sydney. These reports did not include a determination of whole person impairment.
I have also reviewed the medical report (8.4.24) prepared by Dr Peter Bentivoglio, Consultant Neurosurgeon of Sydney. The doctor had also indicated a DRE Category IV rating and had outlined a whole person impairment of 22%. It is evident that
Dr Bentivoglio had given a 2% weighting for ADLs. I have indicated that it is my opinion that 3% is more appropriate given the requirement for assistance in relation to aspects of personal care and a requirement for a paid carer. The doctor had also not considered that radiculopathy was present. The history I obtained and clinical findings differ in this regard, as documented above.
I have also reviewed the medical report (8.7.24) prepared by Dr Ron Haig, Consultant Orthopaedic Surgeon of Albury. It is evident that the doctor had questioned aspects of causation. He had, however, documented a whole person impairment of 22%. It is apparent that he had come to a similar conclusion to that of Dr Bentivoglio in relation to a weighting for activities of daily living and the presence or otherwise of radiculopathy. The comments that I have alluded to above in relation to Dr Bentivoglio’s finding also apply with respect to that of Dr Haig.
I have also reviewed further documentation prepared by Ms Watts’ various health professionals.
I have also reviewed radiological reports therein.
Further administrative and related documentation has also been inspected.”

In respect of whether a deduction under s 323 applied, the Medical Assessor restated his opinion as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
It has been indicated that it is my opinion that there is nil evidence of a pre-existing injury or condition that needs to be taken into account by way of contributory impairment that would necessitate any deductions.”
There is no complaint on appeal about the baseline assessment of 20% whole person impairment (WPI) or DRE category IV for the lumbar spine. The complaints on appeal concern the allowance of 3% for ADLs, the allowance of 3% for radiculopathy and the failure to make a s 323 deduction.
In respect of ADLs, the appellant submitted that there was inadequate reasoning and history taken to form a basis for the Medical Assessor to add 3% WPI for ADLs and hence there was a demonstrable error in making an allowance of 3% WPI. The Appeal panel considers that the assessment of 3% WPI was adequately reasoned and is founded on the clinical assessment of the Medical Assessor on the day of examination noting the history taken that the worker’s partner is her carer and restrictions on self care (to give the 3% WPI) accord with the clinical findings on the day of examination. The Appeal Panel can discern no error in the allowance of 3% WPI.
In respect of radiculopathy, the appellant submitted that no such allowance should have been made.
The criteria for radiculopathy in the Guides at paragraph 4.27 are as follows:
“4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
i.loss or asymmetry of reflexes
ii.muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
iii.reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
iv.positive nerve root tension (AMA5 Box 15-1, p 382)
v.muscle wasting – atrophy (AMA5 Box 15-1, p 382)
vi.findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
The Medical Assessor found that the requirement for radiculopathy are met because of the following:
“● Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution (major criterion);
• Findings on an imaging study consistent with the clinical signs (minor criterion).”
However the Medical Assessor has not had proper regard to the imaging findings which post date the operation performed in 2019. Those imaging findings include imaging dated
28 April 2024 the nuclear bone scan lumbosacral spine, pelvis and hips (including spect CT).
The CT scan of 28 April 2024 does not show evidence of post operative nerve root impingement or compression. The Medical Assessor has referred to the imaging studies which show the presence of nerve root impingement or compression pre—operatively.
The CT scan of 28 April 2024 findings are summarised in the report dated 28 April 2024 as follows:
“previous surgery at L5-S1 level with disc prothesis present and pedicular screws bilaterally L5 and S1. Uptake of tracer in these regions is normal. No evidence of any complication. Tracer uptake in the remainder of the lumber spine, sacroiliac joints and hip joints also normal.”
Contrary to the submission of the respondent, it cannot be assumed from the Medical Assessor’s reference to having seen other radiological reports in the referral documentation that he has in fact had proper regard to the radiological findings on
28 April 2024 because these findings do not support the presence of radiculopathy post operatively and the Medical Assessor only specifically referred to the pre-operative radiological findings.
This means that the minor criteria for radiculopathy upon which the Medical Assessor relied is not in fact satisfied and the allowance of 3% WPI was made in error.
In respect of the s 323 deduction, the appellant complains on appeal that the Medical Assessor failed to make a deduction for the pre-existing condition or abnormality of the worker’s lumbar spine and this was reasoned inadequately.
The Appeal Panel notes that the Medical Assessor simply stated in respect of any s 323 deduction as follows:
“It has been indicated that it is my opinion that there is nil evidence of a pre-existing injury or condition that needs to be taken into account by way of contributory impairment that would necessitate any deductions.”
Whilst the MAC must be read as a whole, there is no other reasoning to be found in the MAC which suggests that the Medical Assessor had any regard at all to the pre-existing abnormality of the lumbar spine namely L5/S1 spondylolisthesis and pars defect as shown on the radiological investigations.
A deduction can only be made under s 323 if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. If the extent of the deduction would be too difficult or costly to assess, a one-tenth deduction applies if not at odds with the available evidence.
The fact that a condition may be asymptomatic is to be taken into account but is not determinative.
The worker has an underlying condition of L5/S1 spondylolisthesis with pars defect. The Medical Assessor failed to make any reference to the pre-existing condition of the lumbar spine and was in error in so doing.
The Appeal Panel considers that a one-tenth deduction should have been made to take account of the contribution of the pre-existing condition of the lumbar spine to the overall level of permanent impairment assessed. The respondent worker has come to surgery as a result of both the underlying abnormality of the spine and the injury. The extent of deduction in respect of the pre-existing abnormality would be too difficult or costly to determine and so the Appeal Panel makes a deduction of one-tenth which is not at odds with the available evidence.
This gives a calculation of 23% WPI less one-tenth (2.3) gives 20.7 or after rounding 21% WPI as a result of the referred injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
8 November 2024 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:	W26509/24
Applicant:	Jacinta Anne Watts
Respondent:	Bellview Park Stud Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor David Crocker and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)