Bluescope Steel Limited v Halloran

DETERMINATION OF APPEAL PANEL
CITATION:	Bluescope Steel Limited v Halloran [2023] NSWPICMP 36
APPELLANT:	Bluescope Steel Limited
RESPONDENT:	Neil William Halloran
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	6 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer appealed alleging error by Medical Assessor (MA) in failing to make deductions pursuant to section 323 in respect of two of three “separate’ injuries referred for assessment; worker cross-appealed alleging factual or legal errors in the assessment of whole person impairment and in the application of section 323 in respect of each of the injuries; on preliminary review the panel concluded that the MA not been provided with much of the evidence in the worker’s case; as there were factual and legal errors which tainted the assessments of each of the three injuries the panel reassessed each of the ‘separate’ injuries as required by the referral despite its view that the separate injuries led to one indivisible impairment; Held – Medical Assessment Certificate (MAC) revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 September 2022, Bluescope Steel Limited (the employer) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 12 August 2022.
The employer 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.
On 12 September 2022 Neil William Halloran (the worker) also lodged an Application to Appeal Against the Decision of the Medical Assessor. This appeal also asserts that the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) and that the MAC contained a demonstrable error pursuant to s 327(3)(d).
The delegate is satisfied that, on the face of the applications, at least one ground of appeal has been made out in respect of both appeals. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which both appeals are made.
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.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Halloran(the worker) was employed by Bluescope Steel Limited between 5 March 1990 and July 2016. He was initially employed as a crane chaser and forklift driver. Between 2001 and 2012, he was employed as a crane driver. Thereafter, he was employed as a labourer/strapper until the cessation of his employment.
The worker has a long history of problems with his low back which date back to the mid-1990s. From September 200,1 he was treated by several neurosurgeons including Dr Pell and Dr Bentivoglio.
Subsequently, on 14 August 2003, he underwent an L5/S1 microdiscectomy under another neurosurgeon, Dr Day. While he returned to work following that surgery his back symptoms did not abate. He underwent a further L5/S1 microdiscectomy and rhizolysis under Dr Day on 12 August 2004.
The worker’s condition improved and he gradually increased his hours of work so that by January 2005 he was working 12-hour shifts and performing duties including climbing ladders, bending, and squatting in his role as a crane driver.
On 14 November 2007, the worker suffered an injury to his low back in the course of his employment when he bent down to “pick up some rubbish that was on the cabin floor” of his crane. He experienced immediate low back pain and was transported to Wollongong Hospital by ambulance.
Following this incident, the worker came under the care of Dr Al-Khawaja, a neurosurgeon, who performed an L5/S1 anterior interbody fusion at the Figtree Private Hospital on 11 November 2008.
After a lengthy period of rehabilitation, the worker returned to employment in May 2009 and gradually increased his duties. He states:
“By around 2010, I went back to full-time work as a crane driver. I was performing pre-injury duties. I was then moved to UCP in 2012.”
On 3 March 2016, the applicant suffered a further injury to his back in the course of his employment when lifting a cylinder to insert it into a utility vehicle. Following this incident his low back and leg pain returned. While he continued to work for some weeks, in July 2016 he was unable to cope. He was admitted to the Wollongong Hospital for further treatment. He again came under the care of Dr Jerry Day, the neurosurgeon.
On 2 August 2016, Dr Day performed an L5/S1 lateral recess decompression with rhizolysis. Unfortunately, the worker experienced continuing low back and leg pain following the surgery. He was unable to return to work. He experienced a number of falls.
On 1 January 2017, the worker was admitted to hospital following a fall at home. Then, on 24 January 2017, he underwent a further L5/S1 laminectomy and rhizolysis under Dr Day. He has continued to experience low back and leg pain since that surgery.
Following the surgery on 24 January 2017, the applicant came under the care of two pain specialists, Dr Guy Bashford at Lawrence Hargrave Hospital and Dr Khor of the Prince of Wales Hospital. He underwent a trial of a spinal cord stimulator but found that it was of little benefit. He suffers from chronic pain as a result of his back injury.
By his written statement of 4 June 2021, the worker states that he is in pain throughout the day. He says that he constantly feels exhausted.
On 7 August 2020, the worker saw Dr Michael Davies, a neurosurgeon, at the request of his former employer. By a report of 18 August 2020, Dr Davies took a history of the worker developing low back pain “after throwing a ball whilst playing with his son in the park in 2003”. Following that incident, he underwent the surgeries undertaken by Dr Day in 2003 and 2004.
Dr Davies recorded a consistent history of the worker’s injuries on 14 November 2007 and 3 March 2016 and his treatment since that time. He concluded that the worker had suffered lumbar strain injuries in the incidents in 2007 and 2016 which had aggravated a pre-existing condition of the L5/S1 level “probably on the basis of causing traction on the S1 nerve root that was caught up in scar tissue”.
Dr Davies was asked to assess the overall level of the worker’s permanent impairment in accordance with the Guidelines and AMA5 “due to his lower back injuries”. As the worker had undergone a fusion, he was assessed at DRE lumbar Category IV. Dr Davies awarded him 20% whole person impairment (WPI) in accordance with Table 15-3 of AMA5. To that he added 2% WPI for ADLs, 2% WPI for a second operation, and 1% WPI for a third operation. He did not find persisting radiculopathy. On the combined tables, this gave rise to a final WPI of 22%.
As the worker had previously undergone two decompressive procedures at L5/S1, he made a deduction of one quarter pursuant to s323 to reflect the contribution of a pre-existing condition. Thus, he expressed the opinion that the worker’s WPI due to the injuries in 2007 and 2016 was 18%.
Dr Davies found that the worker was unfit for work. He thought he might benefit from undertaking a further intensive multi-disciplinary pain management program regardless of whether or not he acceded to a permanent stimulator to relieve his pain.
By a further report, dated 3 September 2020, Dr Davies noted that he was asked to apportion between the two injuries of 2007 and 2016. He stated:
“It is not particularly easy to apportion between these two injuries as they both occurred while he was working with the same employer and I assume the same workers compensation insurer.”
Nonetheless he apportioned one half of the worker’s WPI to the 2007 incident and one quarter to the incident in 2016.
On 26 December 2020, Dr Cameron, a consultant physician in rehabilitation medicine, provided a report to the worker’s solicitor. He also took a history that the worker came to surgery in 2003 and 2004 following an injury at home when he was throwing a ball. He took a consistent history of the work injuries on 14 November 2007 and 3 March 2016. He thought that the worker had a functional neurological disorder and a somatoform disorder which was classified by the Guidelines as a psychiatric condition.
Dr Cameron assessed 23% WPI in accordance with the AMA5 and the Guidelines. He made no deduction pursuant to s 323 for a previous injury or pre-existing condition. By a supplementary report of 12 January 2021, he referred to Chapter 1.27 of the Guidelines. He again expressed the opinion that there should be no deduction for a pre-existing condition. He said this:
“It is my opinion that the pre-existing problem (prior to November 2007) is not related to the compensable injuries. I note that Dr Davies has an alternative opinion about this.
Mr Halloran’s situation is complex and there are likely to be differing interpretations related to the evaluation of his permanent impairment”.
The difference of opinion between Dr Davies and Dr Cameron as to the extent of the worker’s WPI as a result of the employment injuries gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute to a medical assessor for a medical assessment. It is from the medical assessment certificate of Dr Mastroianni that both the worker and the employer appeal.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination.
While both parties allege factual and legal errors in the MA’s assessment of whole person impairment, the essential area of dispute between them involves the application of s 323 of the 1988 Act. As the panel had before it the statement of the applicant, the medical histories recorded by several treating medical practitioners, and the histories recorded by both D Davies and Dr Cameron, it took the view that a further medical examination would not assist in the determination of the issues raised on appeal.
At the preliminary review, the panel observed that the original Application to Resolve (ARD) a dispute and the documents attached had not been included in the medical assessment file forwarded to the MA. Thus, the MA did not have before him several critical documents including the worker’s statement and the report of Professor Cameron. The absence of the documents may explain some of the factual errors which the parties assert were made by the MA.
The panel concluded that it should have access to those documents. It issued a Direction by which it granted leave to the parties’ legal representatives to put on further submissions dealing with these documents if they thought such a course of action was appropriate. It appears that the parties have chosen not to put on further submissions.

EVIDENCE

The Appeal Panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination. As recorded above, the panel also access to the documents attached to the original ARD and the attached.

Medical Assessment Certificate

The parts of the MAC given by the MA which are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions both in respect of the employer’s appeal and in respect of the worker’s appeal. They are not repeated here in full, but have been considered by the appeal panel.
In summary, the appellant submits that the dispute was referred to the MA to assess whole person impairment of the lumbar spine “resulting separately” from an injury on 14 November 2007, an injury on 3 March 2016, and an injury arising from the nature and conditions of the appellant’s employment between 5 March 1990 and July 2016. The employer accepted that the MA’s assessment of WPI in respect of the injury on 14 November 2007 was correct. It disputed, however, the correctness of the assessments made in respect of the injuries on 3 March 2016 and for the nature and conditions of employment.
The employer submitted that the MA should have assessed the worker as suffering from 2% WPI resulting from the injury on 3 March 2016 and not 4.8% rounded up to 5%. The basis of this contention was said to be as follows:
“Following the injury on 3 March 2016, the MA assessed the applicant worker as suffering from 24% WPI, i.e. an increase of 2% WPI.
Given the assessment of 22% WPI resulting from injury on 14 November 2007, the deduction for pre-existing condition in respect of injury on 3 March 2016 should be 91.6% not 80%, calculated as follows: 22% ÷ 24% x 100”.
In respect of the injury arising from the nature and conditions of the worker’s employment the employer asserted that:
“The MA failed to carry through or have any regard to the assessment for the injuries on 14 November 2007 and 3 March 2016 and s 323 deductions.
Further, the MA failed to give reasons for the assessment of permanent impairment to the lumbar spine resulting from injury from 5 March 1990 to July 2016. He ascribed one-third of the total permanent impairment of 24% which equates to 8% as having resulted from injury from 5 March 1990 to July 2016 in an arbitrary fashion, without explanation, justification or reasoning.
Further, in making the assessment of permanent impairment resulting from injury from 5 March 1990 to July 2016, the MA expressly elected to make no deduction under s 323 despite the fact that he made such a deduction in relation to the permanent impairment resulting from the other injuries.”
The employer submitted that the deduction under s 323 applicable to the injury arising from the nature of the worker’s employment from 5 March 1990 to July 2016 should be 100%, resulting in a final permanent impairment assessment for this injury of 0%. It submitted that the MAC should be revoked and replaced by a further MAC issued by the appeal panel.
In response, the worker’s submission referred to the reasoning in respect of s323 of the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd[1] and of Campbell J in Ryder vSundance Bakehouse[2]
[1] [2018] NSWCA 324, (17 December 2017) (Vannini).
[2] [2015] NSWSC 526 (Ryder).
The worker submitted that the employer was “effectively alleging” that the quantum of the deductible proportion pursuant to s 323 for the 2016 injury should be based on the impairment calculated in accordance with AMA 5 and the SIRA Guides for the 2007 injury. That approach was erroneous. The case law required the MA to determine the degree, if any, to which the previous injury or pre-existing condition contributed to the impairment. He also needed to be satisfied that pre-existing abnormality resulted in an increase in the degree of permanent impairment in accordance with the dicta in in Ryder. It was inappropriate to merely deduct the entire impairment found for an earlier injury.
In respect of the injury caused by the nature and conditions of the worker’s employment the worker alleged that there could be no pre-existing condition in accordance with s 323 as the 2007 and 2016 injuries, of course, overlapped or fell within that period. They did not pre-exist the period and they could not be construed as previous injuries. The MA, therefore, erred in making any deduction at all pursuant to s 323 in respect of this aspect of the case.
By his submissions in M2-W1996/22, the worker argued that the MA had erred in applying s 323 of the 1998 Act. In addition to the case law referred to above, he referred to the decisions of the Supreme Court in Fardell v. Clinton Industries Pty Ltd[3] and Cole v Wenaline Pty Ltd[4]. Against the background of this case law, he made several criticisms of the assessment of the MA.
[3] [2022] NSW SC 111 (22 February 2022).
[4] [2010] NSWSC 78 (Cole).
First, he contended that the MA had made conflicting statements as to the “magnitude of the applicable deductible proportion”. Secondly, the MA recorded that the worker had undergone an L5/S1 laminectomy in 1991. That was factually incorrect. The worker did not have surgery until 14 August 2003.
Thirdly, as the worker stated that he made a full recovery from the effects of these earlier laminectomies they should not have been “a factor in the deduction process”. Fourthly, the worker asserts that the MA fell into the Cole v Wenaline error in that he assumed that the 2001 and 2004 laminectomies contributed to the worker’s injury and impairment in 2007 and 2016. He did not explain how but for the pre-existing injuries the impairment resulting from the 2007 injury “would not have been as great as it was”.
In respect of the deductions made for the 2016 injury the worker made similar criticisms of the MAC. In particular, he alleged that the MA did not explain:
“how, but for the previous surgeries, or any previous injury or pre-existing condition, the degree of impairment resulting from the work injury in 2016 would not have been as great as it was (as per Campbell J in Ryder, above)”.
Finally, the worker submitted that the MA had made a similar error in respect of the nature and conditions injury. He argued:
“The correct approach, we say, would be to examine the nature and conditions of employment, which is conceded as an injury, and referred to by the applicant in his statement and to assess what rateable impairment flows from the injury. In doing so the MA, based on the surgery in 2003 and 2004 should have provided an evaluation of the nature and conditions injury based on the rating for surgery that he underwent at the time as a result of that work”.
By its submissions in reply, the employer agreed that the MAC contained demonstrable errors or the application of incorrect criteria. It conceded that the MA made conflicting statements in respect of the s 323 deduction relevant to the 2007 injury. It argued however that an “inference can be drawn that the MA intended the deduction to be one half (50%) given this appears in the permanent impairment assessment table on page 8 of the MAC.”
While the MA may have erred in recording that there was surgery at L5/S1 in 1991, there was, nonetheless, evidence of the worker undergoing surgical procedures to the lumbar spine in 2002 and 2003. Thus the incorrect history relating to surgery may not have affected the overall deduction applied by the MA.
In respect of the 2016 injury, the employer submitted that the MA had adequately explained the 80% deduction which resulted from the worker undergoing 3 previous surgeries including the L5/S1 interbody fusion prior to the 2016 injury.

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[5]. The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellants in each application.
[5] [2013] SC 1792 (11 December 2013).

In Campbelltown City Council v Vegan[6], 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.
[6] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[7]. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[7] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak[8] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“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 give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[8] [2013] 252 CLR 480 (Wingfoot).
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd.[9]
[9] [2014] NSWSC 1344 (26 September 2014).
As the MA recorded, the parties referred this matter for assessment of WPI resulting from an injury on 14 November 2007, an injury on 3 March 2016, and an injury arising from the nature and conditions of the worker’s employment. In the pleadings and in their submissions the parties have emphasised that each injury was to be separately assessed for WPI.
As Dr Davies contemplated in his supplementary report, it is difficult to understand why it was necessary for the MA to undertake such a difficult task. Plainly, the worker had one impairment resulting from his injuries at work. Each of the injuries were sustained in the one employment. At all material times the employer was a self-insurer.
There can be no doubt that there is a causal relationship between the injury in 2007 and the subsequent injury in 2017. Each affected the L5/S1 disc space. As Dr Davies recorded, the investigations following the incident in March 2016 “largely show post-operative changes following the earlier surgeries and only a shallow disc protrusion”. He continues:
“There was mild displacement of the left S1 nerve root and it is likely that the nerve root was caught up in scar tissue, so that only minor impingement on it from the shallow disc protrusion led to a recurrence of symptoms.”
The panel has reviewed the investigations and accepts the analysis of Dr Davies on this issue.
The instruction to assess each individual injury separately for WPI required the MA to carry out an artificial task which was calculated to lead to error. It must involve a degree of speculation which is not consistent with an assessment in accordance with the Guidelines and AMA 5. It is likely to result in under or over-compensation of the worker. In this case, the final outcome may result in over-compensation.
While the panel is strongly of the view that the Referral was inappropriate in that it should have sought an assessment of the worker’s one indivisible WPI as a result of the workplace injuries, it also concluded that it was compelled by reason of the Referral and the submissions of the parties to reassess the matter on the basis of the WPI resulting separately from each of the injuries.
It is undoubtedly the case that there are factual and legal errors in the MAC. The parties agree that it should be set aside and the panel accepts that that is the case. In the opinion of the panel, there are errors in the assessment of each of the three injuries referred for assessment. It is, therefore, necessary for the panel assess whole person impairment resulting from each of the injuries below.
The panel accepts the worker’s submission that the Referral required the MA to determine impairment in respect of each injury and then consider the extent, if any, to which a previous injury or pre-existing disease has contributed to the impairment. It is not permissible to merely deduct the WPI found in respect of a previous injury from the WPI found in respect of an injury. That approach does not conform with the language of s 323 or the instruction in the cases which interpret that section. If that approach was adopted in this case, it would result in a finding that the 2016 injury caused no permanent impairment.

2007 Injury

By the MAC, the MA assessed WPI in respect of the 2007 injury as follows:
“As a result of the injury in 2007, Mr Halloran had a spinal fusion. He was left with back pain and leg pain. He did not return to golf and had difficulty with heavy domestic chores. Because he had had a spinal fusion he falls in DRE lumbar Category IV, see 10b. ADLs were affected. I assess 22% whole person impairment.
The MA noted that the worker had had two further operations in for which he added a further 2%.That resulted in a final WPI assessment of 24%. He continued:
“There is a history of a back condition in 1991 for which he had a laminectomy. Subsequently in 2002 and 2003 he had a discectomy. Symptoms did not fully resolve and he was left with back and leg pain but he was able to return to pre-injury duties. In my opinion a deduction is applicable for pre-existing condition. Guided by the history as outlined, I have deducted one half for the pre-existing condition. This equates to 11%. He therefore has 11% as a result of the injury in 2007.”
The panel accepts that the worker suffered 22% WPI as a result of the fusion procedure following the 2007 injury. As the MA stated the worker fell within DRE Lumbar Category IV. In the opinion of the panel, however, the MA erred in applying the modifiers in the Guidelines for further operations. It is clear the operations in 2016 and 2017 result directly from the 2016 injury and, if the injuries are to be assessed separately, are properly assessed in connection with that injury.
The panel accepts that the MA erred in finding that the worker underwent a laminectomy in 1991. There is no history of that surgery in the worker’s statement or in the multiple medical histories in the appeal file. Given this demonstrable error, it is necessary for the panel to reassess the operation of s 323 in respect of the 2007 injury.
Contrary to the worker’s submission, the panel has no doubt that the previous injuries to his low back resulting in laminectomies in 2003 and 2004 resulted from significant disease at the worker’s L5/S1 disc space. The pre-existing disease and the surgeries in 2003 and 2004 undoubtedly contributed to the need for surgical intervention following the 2007 injury and to the choice of surgery at that time, namely interbody fusion. Thus, there can be no doubt that the earlier injuries were causative of the 2007 injury and resulted in an increased level of impairment in accordance with the analysis in Ryder.
The effect of the earlier injuries was considered by Dr Davies in his report of 18 August 2020. Unlike the MA, he recorded an accurate history. He expressed the opinion that the worker’s whole person impairment as a result of the 2007 injury should be reduced by one quarter pursuant to s 323 for a pre-existing condition or disease.
While the panel concluded that a previous injury and a pre-existing condition undoubtedly contributed to the worker’ impairment, it also noted that in the years prior to 2007, he had returned to his pre-injury work as a crane driver. In these circumstances, the panel concluded that the assessment of Dr Davies was a reasonably accurate reflection of the deductible proportion in this case. It properly reflected the causal potency of the worker’s pre-existing condition, on the one hand, and of the 2007 injury on the other. In the opinion of the panel, to apply a greater deductible proportion in the circumstances of the case would be to engage in speculation.
Accordingly, the panel reached the conclusion that the worker suffered 16.5%WPI rounded up to 17% WPI as a result of the 2007 injury.

2016 Injury

Following the 2016, injury the worker underwent a laminectomy followed by a second surgical procedure at L5/S1. It is not clear how the MA assessed WPI in respect of this injury. It is likely that he made no separate assessment of WPI as a result of this injury.
If it is to be assessed separately consistently with the Referral, it must be assessed in accordance with the Guidelines and AMA5. In the opinion of the panel, the Guidelines necessitate a finding that the worker’s impairment as a result of injury is rated at DRE Lumbar Category III or 10% WPI.[10] This is because he underwent decompression surgery following the injury. As the worker underwent a second surgical procedure he is entitled to a further 2% WPI in accordance with Table 4.2 of the Guidelines. Thus, as a result of the 2016 injury the worker’s WPI must be assessed at 12%.
[10] See Guidelines Ch 4.37.
As the worker has been awarded 2% WPI in respect of the activities of daily living in respect of the prior injury, it is inappropriate to make a further award for this in respect of the 2016 injury.
Consistently with the discussion above, the panel is of the opinion that the worker’s pre-existing condition made a very significant contribution to his impairment. After considering the matter at some length, the panel concluded that the pre-existing condition which brought about the surgeries in 2003, 2004 and 2007 and the injury of 2016 contributed equally to the impairment. By the time of the injury the worker had undergone two discectomies and a fusion which undoubtedly left the disc space in a parlous condition. As discussed above, it is likely that the previous surgery was an important factor in the causation of this injury. On the other hand, it also seems likely that the worker suffered a further disc lesion as a result of lifting a heavy weight at work.
After an application of the deductible proportion of 1/2 Pursuant to s 323, the worker suffered 6% WPI as a result of the 2016 injury.

Injury resulting from the nature of the worker’s employment

Again, it is not clear to the panel how the MA has reached his conclusion in respect of the impairment resulting from this injury. It appears likely that the MA merely apportioned the WPI which he found in relation to the 2007 injury. He was not asked to apportion liability and did not have the power to make a binding determination on the issue.
The panel noted that neither Dr Davies nor Dr Cameron assessed permanent impairment as a result of the nature of the worker’s employment. A perusal of the medical evidence attached to the medical file was also unhelpful. The panel were unable to find any medical opinion which attributed impairment to the employment that the worker performed as a forklift driver or crane driver or, more recently, as a strapper. On the contrary, the early medical evidence dealing with the worker’s surgery in 2003 and 2004 is replete with medical histories of the worker suffering injury outside the course of his employment.
While it must be accepted that the worker suffered injury to his lumbosacral spine as a result of the nature of his work, the panel is unable to conclude that permanent impairment resulted from such an injury. Rather, each of the surgical procedures undergone by the worker appears to have been preceded by a frank incident, either at home or, in the case of the 2007 and 2009, injuries at work.
While it is possible that the nature of the applicant’s work rendered him vulnerable to the various injuries which he suffered at home and in the course of his employment, in the absence of contemporaneous medical evidence which addresses the issue, it would be merely speculation for the panel to conclude any part of the worker’s impairment results from the nature of his employment. Further, given the respective medical cases of each party the panel entertained some doubt as to whether impairment resulting from the nature of the applicant’s work was part of the medical dispute referred for assessment. Neither doctor who assessed impairment attributed it to the nature of the applicant’s work over the years.[11]
[11] [2021] NSWCA 142 (14 July 2021) (Skates).
Finally, the panel notes, that the MA assessed 0% WPI for scarring and that neither party challenged that assessment.
The panel is of the opinion that there is a causal nexus between the 2007 and 2016 injury. However, it does not have jurisdiction to determine the issues of apportionment or of aggregation. Accordingly, the panel determines that the worker suffered 17% WPI as a result of the 2007 injury and 6% WPI as a result of the 2016 injury.
For these reasons, the appeal panel has determined that the MAC issued on 12 August 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W1996/22
Applicant:	Neil William Halloran
Respondent:	Bluescope Steel 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 Dr Mastroianni 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 WorkCover Guides	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)
Lumbar Spine	14/11/07	Ch 4, Pp 24-29	Ch 15, p 384, Table 15-3	22%	1/4^th	17%
Scarring	14/11/07	Ch 14, pp 73-74	0%	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					(17%)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	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)
Lumbar Spine	3/3/2016	Ch 4, Pp 24-29	Ch 15, P 384, Table 15-3	12%	1/2	6%
Scarring	3/3/2016	Ch 14, Pp 73-74	0%	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					(17%)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	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)
Lumbar Spine	5/3/1990 to July 2016	Ch 4, Pp 24-29	Ch 15, p 384, Table 15-3	0%	0	0%
Scarring	5/3/1990 to July 2016	Ch 14, Pp 73-74	0%	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					0%

[2023] NSWPICMP 36

6 February 2023