Coe v Coast Wide Site Services - [2021] NSWPICMP 132

DETERMINATION OF APPEAL PANEL
CITATION:	Coe v Coast Wide Site Services [2021] NSWPICMP 132
APPELLANT:	Christopher Coe
RESPONDENT:	Coast Wide Site Services
APPEAL PANEL:	Member Deborah Moore Dr Mark Burns Dr J Brian Stephenson
DATE OF DECISION:	23 July 2021
CATCHWORDS:	Workers compensation- Appellant submitted that the Medical Assessor (MA) erred in making a deduction pursuant to section 323 of the 1998 Act; Held- the Panel agreed; there was no compelling evidence that the pre-existing condition noted in the scans contributed to the impairment; the MA fell into error by assuming that, because there was some evidence of degenerative changes noted on the radiological reports, a deduction ought to be made, contrary to the principles established in Cole v Wenaline Pty Ltd; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 April 2021 Christopher Coe lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 1 April 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the 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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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).

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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we are satisfied that we have sufficient evidence before us to enable us to determine the appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA erred in three respects, namely:
(a)     by failing to give any reasons for why he applied the low range figure of 10% for DRE Category III Lumbar impairment instead of some other figure in the permitted range of 10% to 13%;
(b)     by making an assumption that degenerative changes resulted in some degree of impairment; and
(c)     failing to give adequate reasons for why he concluded a deduction pursuant to
s 323 of the 1998 Act should be made.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment in respect of the lumbar spine and scarring (Temski) resulting from an injury on 19 June 2013.
The MA obtained the following history:
“Mr Coe is a single 31 year old right handed man who commenced work at the Coastwide Site Services Group as a Boilermaker/Welder in June 2011…
Mr Coe states that prior to an incident at work on the 19 June 2013, he had no previous history of painful or traumatic disorder associated with his lumbar back nor indeed his right or left lower extremity. He states that he enjoyed general good health.
On the 19 June 2013, according to Mr Coe, he was lifting a heavy pipe weighing between 80 and 100kg when he developed the initial onset of low lumbar back pain and had to go home that day. He went to work the next day, still with low back pain but over the course of the next two to three days he developed pain radiating into his left buttock and down the posterolateral aspect of the left thigh and calf to the area of his heel…
A CT scan had been performed at the request of the local practitioner, Dr Khalid Ishfaq, of Campbelltown, and this was reported on by Dr Van Gelder as demonstrating degenerative changes of the L5/S1 level where there was moderate bilateral foraminal stenosis with reduced disc height and a left focal disc protrusion impacting the left L1 nerve root…
Dr Van Gelder did discuss with Mr Coe that if there was no improvement in the symptoms he would be possibly considered for a microdiscectomy type surgery. There was no further consultation.
Over the next few months the low back pain did reduce in intensity but remained. Mr Coe finished with the Coastwide Group in September 2013…
In 2014 he was involved in a motor vehicle accident as a passenger, where there was a very minor aggravation of his low back with some injuries to both shoulders, with the symptoms relating to this accident settling. He did however, continue to describe discomfort in his low back with intermittent pain into his left leg. He states that his clinical condition returned to that prior to the car accident…
It was late in 2016 that he began to deteriorate relating to back pain. There was a referral to see Dr Balsam Darwish, Neurosurgeon… This visit occurred on the 17 September 2018. On initial consultation, Dr Darwish noted pain in the back and left leg and a depressed ankle jerk but normal muscle power and some decreased sensation over the posterior aspect of the left leg and the heel [and] sole of he left foot. He reviewed an MRI scan of the lumbar spine performed on the 28 April 2018 which revealed a left L5/S1 disc protrusion compression the left S1 nerve root.
After further consultation, Mr Coe underwent surgical intervention… under the care of Dr Darwish on the 23 January 2019, in the form of an L5/S1 discectomy with a left S1 rhizolysis via posterior approach. Mr Coe was reviewed by Dr Darwish on the 5 March 2019. Dr Darwish reported… that there had been a 90% improvement of left leg pain but still a complaint of low back pain. He noted that wound had healed nicely and Mr Coe’s gait was normal…
There was a referral for further physiotherapy, along with the use of Mobic medication. Mr Coe has not returned to see Dr Darwish since that time. He currently remains under the care of his local practitioner…”
After documenting the appellant’s present symptoms and treatment, the MA noted:
“Mr Coe has not been able to work since the surgical intervention…He states that he is able to drive a car but only short distances. He last worked in 2016.Mr Coe states that he is of indigenous descent. As stated, he lives with his parents and has no children. He states that he is able to perform all his own self-care activities of daily living.”
Findings on examination were reported as follows:
“Mr Coe is a man of stated age who states that he weighs 112kg and stands 180cm tall. He walks without a limp and uses no appliances…
He states that the small scar on his posterior lumbar back is of no real concern to him and it causes him no irritation. On examining the scar, it is a 5cm scar consistent with the decompressive surgery performed. It is midline and has only very slight pigmentation and is not tethered to deeper structures. It is only visible when wearing no underwear and is almost lost amongst the various coloured tattoos across the posterior aspect of his torso and lower back. According to Mr Coe it causes him no concern.
On examination of his lumbar spine, there is normal alignment when standing erect. He is able to stand on his heels and toes and rock back and forward as long as he holds on to a filing cabinet. He demonstrates an asymmetrical decrease of range of motion in his lumbar spine due to discomfort on terminal range. He demonstrates flexion and extension to one half of normal expected range with lateral flexion and rotation to the right and left to two thirds of normal range. There is no evidence of palpable paravertebral muscle spasm or guarding…
On examination today, there is a very slight partial sensory loss in the lower lateral left leg area but not on the heel. There is no sensory loss more distally on the left or right foot, nor in the more proximal right and left upper leg and thigh…”
After summarising the radiological evidence, (to which we will refer more fully later) the MA then summarised the injuries and diagnoses as follows:
“Mr Coe states that prior to the 19 June 2013, he had no history of painful or traumatic disorder of his low back. He injured his back that day at work and presented with a continuum of low back pain and symptoms radiating into the left leg as far as the heel. The symptoms and clinical signs noted by two spinal surgeons were consistent with L5/S1 disc protrusion impacting on the left S1 nerve root. Scans also suggested that there was impaction of the left L5 nerve root. There were two neurosurgical opinions almost five years apart with the subsequent resultant left L5/S1 microdiscectomy and left S1 nerve root rhizolysis on the 23 January 2019, under the care of Dr Balsam Darwish at the Liverpool Public Hospital. The surgery was funded by the Medicare system.
Mr Coe has been unable to return to meaningful work. Although there has been improvement since the surgery, he still has persisting low back pain and symptoms on a daily basis into his left leg.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied
“ Yes…Lumbar Spine degeneration at the L5/S1 level.”
The MA’s opinion and assessment of whole person impairment is noted as follows:
“Mr Coe has undergone an L5/S1 surgical decompression via posterior approached. Reference is made to Item 4.37 of the guidelines and AMA 5, where it states that surgical decompression with spinal canal stenosis is consistent with a DRE Category III Impairment.
Therefore, with reference to Table 15.3, AMA 5, a DRE Category III Lumbar Spine Impairment is consistent with a 10-13% Whole Person Impairment.
With reference to Item 4.34 to 4.36 of the guidelines, it is my opinion that a 2% Whole Person Impairment should be added to the base impairment for inability to perform some activities of daily living. 10 + 2 = 12% Whole Person Impairment.
Reference is made to Item 4.27 of the current guidelines. There is a reproducible impairment of sensation that can be anatomically localised to an appropriate spinal nerve root distribution at the time of today’s examination, along with muscle wasting of the left calf.
The pre-operative imaging studies were also consistent with the clinical signs at the time of surgery. In my opinion the definition of radiculopathy as set out in Item 4.27 of guides is met with at least two of the six criteria being present. There is negative nerve root tension sign on the right and left side at there is at least one clinical criteria from each of the two subgroups. In my opinion, the definition of the residual radiculopathy is fulfilled.
Therefore, with reference to Table 4.2 – modifiers for DRE categories following surgery, it is noted that a 3% Whole Person Impairment may be combined with the lumbar spine impairment: 12 + 3 = 15% Whole Person Impairment.
At the time of assessing impairment, it is my intension [sic] to enact a Section 323 [sic].The CT scan performed on 24 June 2013 shows definite evidence of long standing degenerative changes at the L5/S1 level. This scan was performed within the month between the date of accident and the assessment by the attending neurosurgeon although I accept that Mr Coe was asymptomatic prior to the date of the work injury.”
The MA then summarised the other medical opinions as follows:
“I read with interest the report prepared by Dr Eugene Gehr, Orthopaedic Surgeon, on the 18 May 2020. He notes at the time of his examination some wasting of the left calf along with retention of deep tendon reflexes in the lower extremities. He notes no apparent loss of motor power but notes a reduced sensation in an L5/S1 distribution on the left side. He also suggests there is a positive straight leg raising test on the left side which was not my finding to today. Dr Gehr calculates a combined 17% whole person impairment, including a 2% whole person impairment relating to scarring.
I read with interest the report by Dr James Van Gelder Neurosurgeon, who was asked to perform an initial opinion relating to Mr Coe’s condition on the 22 July 2013, one month after the accident. He noted the history of low back pain and left leg pain along with a positive straight leg raising test on the symptomatic side but intact reflexes. He noted the CT scan result demonstrating a focal disc protrusion impacting the S1 nerve root.
The reports of the treating surgeon, Dr Balsam Darwish, extend from the 17 September 2018 through to his last visit on the 5 March 2019. At the time of the last visit he noted normal muscle power and sensation of the lower extremity and a significant improvement in leg pain but not the back pain, post-operatively. He did note that the left ankle jerk was depressed prior to the surgery…”
The MA concluded:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Degenerative change at the L5/S1 level.
(ii)The CT Scan of the lumbar spine performed on 24 June 2013 demonstrates that there was significant degenerative change at the L5/S1 level with bilateral foraminal stenosis and reduced disc height. It is my opinion that such radiological findings, particularly the reduced disc height were pre-existing but asymptomatic. The reduction of disc height at the L5/S1 level is a significant pre-existing feature and cannot be ignored.
(iii)The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. 1/10^th.”
Dealing firstly with the issue regarding the “low range figure of 10% for DRE Category III instead of some other figure in the permitted range of 10% to 13%” the appellant’s principal submission is that the MA failed to provide “any reasons” for the 10% he assessed.
The appellant’s submissions are misconceived.
The Guidelines make it clear that the range of 10% to 13% is the final score.
As Dr Gehr also noted: “From WorkCover Guidelines, page 26, paragraph 4.24, he is DRE Ill and from AMAS, page 384, Table 15.3, WPI = 10%.”
There is no dispute that the appellant suffers from radiculopathy which attracts a base-line impairment of 10% to which is added from 1% to 3% for the impact on ADL’s.
The Guidelines include a diagram which should be used as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s activity level as recorded and compared to the worker’s status prior to the injury.
The MA assessed 2% on the basis that the appellant was restricted in “home care yard/garden/sport/recreation.”
Accordingly, there is no error in his primary assessment.
The principal issue however is the deduction made pursuant to s 323 of the 1998 Act.
The appellant’s submissions quote at length from a number of authorities on this issue which we do not intend to repeat here in detail.
Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole) is now the perennially cited authority on the construction and application of s323 where Schmidt J said:
“For a deduction to be made from what has been assessed to have been the level of impairment…a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, irrespective of outcome, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences (our emphasis) of the earlier injury, pre-existing condition or abnormality…”
Conversely, if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.
In this case, we agree with the appellant’s submissions for reasons that follow.
The CT Scan performed on 24 June 2013, about three weeks after the injury, demonstrated:
“Multilevel disc and facet joint degenerative changes. L1/2, L2/3 and L3/4 levels demonstrate no significant disc bulging, herniation or exit foraminal stenosis. At the L4/5 level there is a minor broad based disc bulge. There is no exit foraminal stenosis. Minor facet joint degenerative change identified. L5/S1 demonstrates a broad- based disc bulge with a left paracentral and lateral component. Encroachment on the left sided exit foramen is noted. The right sided exit foramen is patent. Bilateral facet joint degenerative changes are detected. Bilateral Sacroiliac joint degenerative changes are detected.”
The CT Scan performed on 23 November 2016, over three years later, demonstrates almost identical pathology.
The MRI Scan performed on 23 April 2018 was reported as showing:
“Disc prolapse at the L5/S1 level with disc degeneration at that level. There is an associated diffuse posterior disc bulge with left paracentral broad based disc protrusion. This pathology compresses the left S1 nerve root. Bilateral L5 nerves are also being compressed by the diffuse posterior disc prolapse. The right L5/S1 nerve root is not being compressed. There is no spinal canal stenosis at any level. There are changes of Scheuermann’s syndrome in the lower thoracic and upper lumbar spine from T11 to T4 with node formation. There is no compression or wedging or bone marrow oedema in the lumbar vertebra. There is a very mild disc degeneration with slight loss of height at the T11/T12 level.”
In our view, those scans show some degenerative changes in the facet joints but not any significant narrowing of those joints.
Of more significance is the finding of the disc prolapse at L5/S1 shown on the MRI scan.
As the treating doctors observed, the appellant was suffering from a disc injury which ultimately required surgery, not any facet joint injury. In addition, the degenerative changes noted at L4/5 were minor.
We accept that the MRI scan demonstrated some “Scheuermann’s syndrome in the lower thoracic and upper lumbar spine from T11 to T4…” but, accepting the appellant’s statement, confirmed by a number of doctors, that he was asymptomatic prior to the injury, we do not see these changes as significant. Moreover, they are at a different level to the disc injury.

In our view, there is no compelling evidence that the pre-existing condition noted in the scans contributed to the impairment.
The MA seems to have fallen into error by assuming that, because there was some evidence of degenerative changes noted on the radiological reports, a deduction ought to be made, contrary to the principles established in Cole to which we have referred.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 April 2021 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

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 Ian Meakin 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)
1. Lumbar Spine	On or about 19/6/2013	Chapter 4 Page 26-33 Item 4.37 Table 15.3 Item 4.34 to 4.36, Table 4.2, Item 4.27	Yes	15%	NIL	15%
2. Scarring	On or about 19/6/2013	TEMSKI scale Item 14.6	Yes	0%	N/A	0%
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					15%

Deborah Moore
Member
Dr Mark Burns

Medical Assessor

D J Brian Stephenson

Medical Assessor

23 July 2021