Deosa Enterprises Pty Ltd v Morcos
[2022] NSWPICMP 258
•21 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Deosa Enterprises Pty Ltd v Morcos [2022] NSWPICMP 258 |
| APPELLANT: | Deosa Enterprises Pty Ltd |
| RESPONDENT: | Andrew Morcos |
| APPEAL PANEL: | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr John Brian Stephenson |
| MEDICAL ASSESSOR: | Dr Margaret Gibson |
| DATE OF DECISION: | 21 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Respondent worker referred for assessment of permanent impairment resulting from injury to right and left knees, lumbar spine, right elbow and scarring; respondent suffered a subsequent non-work injury in regards to which commenced proceedings in District Court and particulars for which included injury to knees and lumbar spine; appellant submitted firstly, Medical Assessor (MA) misapplied criteria when assessing impairment due to restricted range of movement of right elbow; secondly, MA erred because he assessed impairment relating to right ankle by incorrect criteria and because he also included restricted range of movement of hindfoot when hindfoot had not been referred for assessment; thirdly, MA erred by failing to exclude from assessment any impairment due to subsequent injury; and lastly, MA erred by failing to make a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for pre-existing condition; Held– Appeal Panel rejected all submissions excepting last; Medical Assessment Certificate (MAC) revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 April 2022 Deosa Enterprises Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr James Bodel, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 March 2022.
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 assessment was made on the basis of incorrect criteria,
· 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Andrew Morcos (the respondent) commenced employment with the appellant in 2016, working as an electrician. On 23 May 2017, whilst working for the appellant, he was carrying a large television down a staircase. He misjudged his footing on a step causing him to fall down a step.
The respondent claimed he suffered an injury to his right knee, right ankle, lower back, neck, left knee, right shoulder and right elbow as a consequence of that incident. The respondent also claimed that as a consequence of “over reliance” on his left knee, due to his right knee injury, he has a condition in his left knee. He further claimed that he suffered neck and lumbar spine injuries as a consequence of his altered gait and the use of crutches and altered postures due to his right knee injury.
Relevant to this matter is an incident that occurred on 13 July 2019 when the respondent was at the Hoyts Cinema at Bankstown Mall. While exiting the bathroom at the cinema he hit his head on a piece of metal hanging from the top of the door frame, which caused him to suffer personal injuries. He commenced proceeding in the District Court of New South Wales on 16 December 2020 against the Hoyts Corporation Limited seeking damages from it for his personal injuries. The particulars he provided Hoyts of the injuries he suffered in the incident included injuries to his neck, right shoulder, lower back, right knee and left knee.
The respondent’s solicitors arranged for Dr Eugene Gehr to examine the respondent on 16 February 2021. Dr Gehr is an orthopaedic surgeon. In a report dated 16 February 2021 he advised the respondent’s solicitors that he had assessed the respondent had 48% whole person impairment (WPI) from the respondent’s workplace injury on 23 May 2017, comprising 22% WPI relating to the right knee, 4% WPI relating to the left knee, 6% WPI relating to the right ankle, 3% WPI relating to the right elbow, 2% WPI relating to scarring, 7% WPI relating to the cervical spine and 5% WPI relating to the lumbar spine.
On 25 February 2021 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation of $168,291.98 from the appellant under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 48% WPI resulting from his injury on 23 May 2017. The respondent’s solicitors enclosed a copy of Dr Gehr’s report dated 16 February 2021 with their letter.
The appellant arranged for the respondent to be examined by occupational physician Dr Robin Mitchell, which occurred on 8 April 2021. Dr Mitchell in a report dated 26 April 2021 advised the appellant’s solicitors that he had assessed the respondent had 9% WPI relating to the respondent’s right knee and right ankle, 6% WPI relating to the respondent’s right shoulder and elbow and 0% relating to the respondent’s neck, thoracic back and lumbar back. In a subsequent report dated 7 July 2021 Dr Mitchell advised that the WPI he had assessed the respondent to have relating to the injury to his right knee was 4%.
The insurer then wrote to the respondent by letter dated 16 July 2021, posted to the respondent’s solicitors, and advised the respondent that it disputed the respondent was entitled to lump sum compensation for his injury on 23 May 2017. It advised the respondent that it accepted liability for an injury to his right knee on 23 May 2017. It advised the respondent that Dr Mitchell in a report of 26 April 2021 had assessed he had 9% WPI of the right knee and ankle. It advised him that in a supplementary report Dr Mitchell assessed that he had 4% WPI relating to his right knee. The insurer also advised the respondent that it disputed liability for injuries he claimed he suffered to his neck, shoulder, ankle and aggravation of his lower back, as it had earlier done, which repeated what it had earlier notified him in a notice dated 16 September 2019.
The respondent then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for the appellant to pay him compensation under s 66 for permanent impairment from his injury on 23 May 2017. On 9 December 2021, with the consent of the parties, Member Philip Young made the following determination:
“1. Award for the respondent in respect of injury and/or consequential condition to the applicant’s cervical spine and/or right shoulder alleged to have occurred on or subsequent to 23 May 2017.
2. The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the applicant’s whole person impairment, if any, which results from the following injuries which are all deemed to have occurred on 23 May 2017: -
(a) Right lower extremity (knee and ankle)
(b) Lumbar spine
(c) Left lower extremity (left knee)
(d) Right upper extremity (elbow)
(e) Scarring (TEMSKI) right elbow.
3. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments, a copy of the Application to Admit Late Documents and attachments dated 3 December 2021 and a copy of this Certificate of Determination-Consent Orders.”
On 9 December 2021 a delegate of the President duly issued a referral to the MA in accordance with the terms of the determination of Member Young.
As mentioned, on 10 March 2022 the MA issued the MAC in response to that referral in which he certified that he assessed the respondent had 24% WPI from the injury on 23 May 2017 comprised of 10% WPI relating to the right lower extremity, 7% WPI relating to the lumbar spine, 4% WPI relating to the left lower extremity, 5% WPI relating to the right upper extremity and 1% WPI relating to scarring.
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 appellant to undergo a further medical examination because the Appeal Panel considered the material before it was sufficient for it to determine the appeal.
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.
MEDICAL ASSESSMENT CERTIFICATE
The MA examined the respondent on 22 February 2022. The MA obtained a history regarding the circumstances in which the respondent suffered his injury. The MA noted the respondent had previously suffered intermittent back pain which was made worse by the incident on 23 May 2017. The MA noted the respondent, prior to his injury, was active and participated in running, swimming, fishing and weight training but now has difficulty with these activities. The MA noted the respondent has difficulty with household maintenance and cleaning activities, and with indoor and outdoor activities and noted that the respondent needs help with domestic activities.
The MA set out his findings from his examination of the respondent within Part 5 of the MAC.
The MA noted that the respondent did not bring with him any films of the radiological investigations or other tests that he had undergone. There were however, within the material provided to the MA, reports of numerous investigations the respondent had undergone and the MA noted within Part 10a of the MAC that he had regard to those reports when making his assessment of the respondent’s WPI.
The MA said at Part 8e of the MAC that “there is no evidence of any pre-existing abnormality or condition and no deduction for pre-existing impairment”. He also said in Part 10b of the MAC that “there is no indication clinically that there is any pre-existing abnormality or condition and no basis for deduction for pre-existing impairment”.
The MA was cognisant of the injury the respondent suffered on 13 July 2019 and made specific reference within Part 10b of the MAC to a report of orthopaedic surgeon Associate Professor Michael Shatwell dated 7 August 2021 who had examined the respondent at the request of McCabe Curwood Solicitors with respect to the injury the respondent suffered on 13 July 2019. The MA noted that Professor Shatwell had indicated in that report that the respondent had suffered “a sprain of the neck and the back and that the normal expected outcome would be for resolution of symptoms of a relatively short period of time of say four months”. The MA noted that Professor Shatwell considered “the other areas…. have not been aggravated by the accident as described”. The MA noted that Professor Shatwell concluded that “spinal stiffness demonstrated at the time was ‘quite genuine and probably related to inflammatory spinal disease’”. The MA said “I accept that this may be the case, but I saw no definite evidence of that on clinical assessment here today”. The MA said at Part 8g of the MAC that “there is no indication clinically of any subsequent accident or injury following the matter which is the subject of this claim”.
The MA said that the facts on which he based his assessment were the history given by the respondent, his clinical findings from his examination of the respondent and the documentation the Commission provided him, which the Appeal Panel observes was voluminous.
The MA provided the following “summary of injuries and diagnoses” within Part 7 of the MAC:
“This gentleman has suffered an injury to both knees, an injury to the back, an injury to the right shoulder which has not been accepted as an area of injury in this assessment, and an injury to the right elbow. He has had surgery on the right elbow and has scarring as a result of that.
The injury is a combination of a frank injury that occurred on 23 May 2017 when he suffered a fall down a set of stairs while carrying a large television screen and also the aggravation, acceleration, exacerbation and deterioration of some degenerative disc disease in the lower part of the back, arthritic change in both knees, and lateral epicondylitis in the region of the right elbow.”
As said above, the MA assessed the respondent had 24% WPI from his injury. He provided the following explanation for his assessment at 10b of the MAC:
“This gentleman has a DRE Lumbar Category II level of assessable impairment in accordance with the description in Table 15-3 on page 384 of AMA5. He has asymmetry of movement and guarding but no clinical sign of radiculopathy. There is a 5% base rating for this category.
His Activities of Daily Living have been moderately compromised and in accordance with Item 4.34 and Item 4.35 on page 28 of the 4th Edition of the WorkCover Guidelines, giving a 2% loading and a 7% Whole Person Impairment overall for the lumbar spine.
The areas to be assessed in the Right Upper Extremity are the right elbow and this is assessed using Figure 16-34 on page 472 and Figure 16-37 on page 474. There is an 8% Upper Extremity Impairment which converts to a 5% Whole Person Impairment using Table 16-3 on page 439.
In both lower extremities, there is a rateable restriction of both knees and also the right ankle. The knees are assessed using Table 17-10 on page 537, and the ankle and subtalar joint using Tables 17-11 and 17-12 on page 537.
For the knees, the -5° of knee extension attracts a 10% Lower Extremity Impairment for each knee.
In the right ankle, the restricted ranges of movement constitute a 14% Lower Extremity Impairment for the Ankle and a 4% Lower Extremity Impairment for the Subtalar Joint.
On the right side, there are three induvial ratings to combine and they are 14, 10 and 4. This gives a total of a 26% Lower Extremity Impairment using the Combined Values Charts on page 604 of AMA5 and that converts to a 10% Whole Person Impairment using Table 17-3 on page 527.
For the Left Lower Extremity, the 10% Lower Extremity Impairment for the knee becomes a 4% Whole Person Impairment.
The only other rating is the scarring and the scar in the right elbow is a lengthy scar and a mildly complicated surgical scar in accordance with the TEMSKI scale, giving a 1% Whole Person Impairment rating.
There are five individual ratings to be combined using the Combined Values Charts on page 604 of AMA5:
- 10% for the Right Lower Extremity
- 7% for the Lumbar Spine
- 5% for the Right Upper Extremity
- 4% for the Left Lower Extremity
- 1% for the Scarring
There is a total of 24% Whole Person Impairment.
There is no indication clinically that there is any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA made an error with respect to his assessment of the respondent’s impairment of the right elbow. The appellant submitted that:
(a) the 100° of flexion the MA found the respondent had ought to have been rated by the MA as 6% upper extremity impairment (UEI);
(b) the -100 of extension ought to have been rated as 0% UEI;
(c) the 70° of pronation ought to have been rated as 1% UEI, and
(d) the 70° of supination ought to have been rated as 0% UEI.
The appellant submitted that when those values are combined a total of 7% UEI is reached rather than the 8% UEI that the MA calculated. The appellant submitted that 7% UEI, in accordance with Table 16-3 of AMA 5, equates to 4% WPI.
The appellant submitted that the MA made an error with respect to his assessment of the respondent’s impairment relating to his right ankle. The appellant submitted that the MA assessed the respondent’s ankle movements of “dorsiflexion, plantar flexion, inversion and eversion”, whereas the revised Table 17-11 within the Guidelines required the MA to assess the respondent’s ankle movements of “plantar flexion capability, flexion contracture and extension”.
The appellant submitted that the MA also incorrectly included an assessment of the respondent’s inversion and eversion. The appellant submitted that that is only required with respect to a hindfoot impairment. The appellant submitted that neither Dr Gehr nor Dr Mitchell assessed impairment of the hindfoot and both these doctors only assessed the range of motion of the right ankle in accordance with Table 17-11. The appellant submitted that the hindfoot/subtalar joint was not a referred body part referred to the MA for assessment and consequently the MA incorrectly assessed 4% UEI for the subtalar joint when assessing the respondent’s impairment of his right ankle.
The appellant submitted that the MA failed to record a history of the respondent’s subsequent injury on 13 July 2019 and failed to exclude from his assessment any impairment that was due to the injury the respondent then suffered. The appellant submitted that the particulars provided in the proceedings the respondent initiated against Hoyts Corporation Pty Ltd and the medical evidence with respect to the claim the subject of those proceedings provided evidence that the respondent suffered a subsequent injury to his lumbar spine, right knee and left knee, to which the MA failed to give appropriate consideration.
The appellant submitted that the MA made an error by failing to provide a deduction for a pre-existing injury, condition or abnormality of the lumbar spine, bilateral knees and right elbow in accordance with s 323 of the 1998 Act. The appellant highlighted that the MA considered that the respondent’s injury was both a combination of a frank injury on 23 May 2017 and also the aggravation, acceleration, exacerbation and deterioration of a degenerative disc disease of the lower part of the back and arthritic changes in both knees, and lateral epicondylitis in the region of the right elbow.
The appellant submitted that the medical evidence in conjunction with the MA’s diagnosis of pre-existing conditions supported a deduction being made under s 323 of the 1998 Act.
In reply, the respondent submitted that the MA’s assessment that he had 5% WPI relating to his right elbow was correctly calculated based upon the MA’s recorded findings. The respondent submitted that the -10° of extension the MA found he had of his elbow movement attracts a rating of 1% UEI.
The respondent submitted that the appellant failed to explain how the MA’s assessment of movement of his right ankle, if inconsistent with the Guidelines, affected the outcome. The respondent further submitted that the MA’s examination of his subtalar joint was appropriate as part of the examination of the ankle function.
The respondent submitted that with respect to his injury on 13 July 2019, the MA was not required to refer to every piece of evidence before him and that a detailed reasoning and analysis of every particular element of the claim and claim history is unnecessary. The respondent submitted that the significance or otherwise of his subsequent injury on 13 July 2019 “is entirely a matter for the MA’s discretion on the day”.
The respondent submitted that there is no evidence of a symptomatic condition prior to his suffering an injury and no evidence of a condition, impairment or any other factor that would justify a deduction under s 323. The respondent submitted that the existence of significant pathology is insufficient to warrant a deduction and that more is needed to attribute any assessable impairment to a condition for it to be of any relevance under s 323.
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.
Right elbow
The MA’s assessment of the respondent’s impairment relating to his right elbow is correct. The MA made the assessment based on the correct criteria and applied those criteria correctly in making his assessment of the respondent’s impairment relating to his right elbow. The MA found that the respondent had 100° flexion of his right elbow, whereas the normal movement would be 140°. The MA correctly applied Figure 16-34 of AMA 5 to assess the respondent’s impairment based upon that restricted range of movement and correctly assessed it to be 4% UEI. The MA found that the respondent had -10° extension of his right elbow, whereas the normal movement would be 0°. The MA again applied Figure 16-34 and correctly assessed the respondent’s impairment based on that restricted range of movement to be 1% UEI. The MA found the respondent to have 70° of pronation of his right elbow, whereas the normal movement would be 80°. The MA correctly applied the criteria within Figure 16-37 to assess the respondent’s impairment based upon that restricted range of motion and correctly assessed it to be 1% UEI based on that criteria. The MA also found that the respondent had 70° supination of his right elbow, which does not attract any rating based on the criteria of Figure 16-37. Accordingly, the MA correctly calculated the respondent’s right upper extremity impairment relating to his injury to be 8%, which converts to 5% WPI.
Right ankle
The right ankle is a complex joint and includes the subtalar joint that occurs at the meeting of the talus and calcaneus. Given that, it was not necessary that the referral that was issued to the MA made specific reference to the hindfoot in order that the MA could apply the criteria specified in Table 17-12 of AMA 5 when assessing the respondent’s impairment with respect to his right ankle.
In any event, the medical dispute relating to the respondent’s right ankle that the MA was required to assess was defined by the dispute existing between the respondent and the appellant with respect to the claim the respondent made relating to his right ankle. That disputed claim was crystallised by the correspondence that passed between the respondent and the appellant, which was attached to the respondent’s Application to Resolve a Dispute and which comprised the respondent’s solicitors letter of 23 February 2021 to which was attached the report of Dr Gehr of 16 February 2021 containing his assessment of the respondent’s permanent impairment and the letter that the appellant’s insurer sent to the respondent on 16 July 2021 by which it notified him it disputed his claim and to which it attached documents to the reports of 26 April 2021 and 7 July 2021.[1] Dr Gehr in his report advised that he assessed the respondent to have 6% WPI relating to his right ankle and that that assessment was based upon the criteria set out in revised Table 17.1 of the Guidelines and Table 17.12 in AMA 5. Dr Mitchell in his report of 26 April 2021 advised that he had assessed the appellant to have 9% WPI relating to the right lower extremity, comprising the respondent’s right knee and right ankle. Within a table within his report he indicated that with respect to the assessment of the respondent’s right ankle he had considered the criteria within revised Table 17.1 of the Guidelines and Table 17.12 of AMA 5. That is known because he explicitly made reference to that criteria. His subsequent report related only to the respondent’s right knee.
[1] Skates v Hills Industries Ltd [2021] NSWCA 142 at [27]-[35], [44] and [46] and Sakr v Merrylands Christian Preschool Association Ltd [2022] NSWCA 768 at [40]-[44].
Given that, there can be no doubt, in the Appeal Panel’s view, that the respondent’s claim with respect to his right ankle included impairment relating to restricted inversion and eversion of the subtalar.
The MA also correctly applied the criteria of the revised Table 17.11 when assessing the respondent’s impairment relating to his right ankle, although the MA did not describe the motion he was measuring in the specific terms used within that table. The terms the MA applied were plantar flexion rather than plantar flexion capability and dorsiflexion rather than extension. In other words, the MA’s measurement of the restriction of the respondent’s plantar flexion correlates with the respondent’s plantar flexion capability and the MA’s measurement of the respondent’s restriction of dorsiflexsion correlates with the respondent’s extension. The respondent did not exhibit any flexion contraction and hence the MA did not include any ratings for that.
The MA’s rating for the respondent’s restricted plantar extension accorded with what was required with revised Table 17.11.
Subsequent injury on 19 July 2019
The MA was aware of the respondent’s injury on 13 July 2019. The MA said that he based his assessment on the documentation that had been provided to him, which included a copy of the Statement of Claim that the respondent had filed in the District Court of New South Wales to initiate proceedings against Hoyts Corporation Pty Ltd and the particulars that he provided with respect to that claim. It also included a report of Dr Drew Dixon who had examined the respondent with respect to the injury on 13 July 2019 for Gerald Malouf & Partners Solicitors and also the report of Dr Shatwell. The MA made specific reference to the content of Professor Shatwell’s report.
The MA said in the MAC, cognisant of the fact that the respondent had suffered an injury on 13 July 2019, that there was “no indication clinically of subsequent accident”. In other words, as the Appeal Panel understands what the MA has said, at the time of the MA’s assessment of the respondent’s permanent impairment relating to his injury of 23 May 2017, what had occurred to the respondent on 13 July 2019 presently had no clinical consequence with respect to the body parts the MA was assessing.
In the Appeal Panel’s view, given the nature of the incident on 13 July 2019, and having regard to the body parts the MA was assessing, it was open to the MA to come to that conclusion on clinical grounds. The MA’s task was to make a clinical assessment of the respondent’s impairment from the injury of 23 May 2017 based on the respondent’s presentation at the time of assessment. The MA did so, having regard to the material before him and being aware of the incident on 13 July 2019. Whatever may eventuate in the proceedings in the District Court does not detract from the task the MA had to perform at the time of assessment. The Appeal Panel considers that the MA’s assessment was based on his clinical judgment and the Appeal Panel discerns no error with respect to it.
Further, and in any event, common law principles of causation in tort are to be applied to determine the degree of permanent impairment a worker has from a work injury.[2] It is trite that an impairment of a worker can have multiple causes.[3] It seems to the Appeal Panel that the situation with what occurred on 13 July 2019, in terms of the body parts that were referred to the MA for assessment, is that this incident merely exacerbated what had occurred to the respondent in the injury on 23 May 2017 such that what occurred on 13 July 2019 ought to be attributed to that injury.
[2] New SouthWales Department of Education v Johnson [2019] NSWCA 321 (Johnson) at [55] and [124].
[3] Calman v Commission of Police [1999] HCA 60 at [38]-[40] (Calman); ACQ Pty Ltd v Cooke [2009] HCA 28 at [25].
Section 323 deduction
The Appeal Panel considers, on its review of the evidence, that there is nothing that establishes that the respondent had a prior injury to his right elbow or a pre-existing condition in his right elbow prior to the time he suffered injury on 23 May 2017. Accordingly s 323(1) was not engaged with respect to the MA’s assessment of the respondent’s impairment relating to his right elbow.
The Appeal Panel considers however that the evidence did establish that there was pre-existing osteoarthritis in both the respondent’s knees at the time he suffered injury on 23 May 2017 and also pre-existing degeneration in his lumbar spine at that time as well. Further, with respect to his lumbar spine, given the respondent’s history of having intermittent problems with his lumbar spine, that degeneration had, at least in a minor way, been impairing the respondent’s function prior to his suffering injury on 23 May 2017.
The opinion of the specialist medical practitioners comprised in the Appeal Panel is such that what is revealed by the reports on the radiological investigations the respondent had is such that the degenerative osteoarthritis in the respondent’s knees would have been existing at the time of injury, although asymptomatic, and now contributes to the respondent’s present impairment in that it would presently affect the function of his knees and thereby makes a difference to the outcome for the respondent.
Similarly, with respect to the respondent’s lumbar spine, the degeneration in his lumbar spine contributes to the impaired function of the respondent’s lumbar spine presently and hence makes a difference to the outcome for the respondent.
Given that, the Appeal Panel considers that the MA did err by not making a deduction under s 323(1) of the 1998 Act for the proportion of the respondent’s permanent impairment with respect to his lumbar spine and knees that relates to the pre-existing conditions he had in those body parts. Consequently, the MAC contains a demonstrable error. Further, by not engaging s 323(1) the MA did not make his assessment based upon the correct criteria.
In the Appeal Panel’s view it would be too difficult to determine with any accuracy the extent to which the degeneration in the respondent’s knees and the degeneration in his lumbar spine contributes to his present impairment. Consequently, in accordance with s 323(2) of the 1998 Act, the Appeal Panel assumed the contribution is 10% which is not contrary to the evidence before the Appeal Panel.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 March 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: | W4402/21 |
Applicant: | Andrew Morcos |
Respondent: | Deosa Enterprises Pty Ltd |
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 James Bodel 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 | % | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Right Lower Extremity (knee and ankle) | 23 May 2017 | Chapter 3 | Table 17-10, 17-11 & 17-12 | 10% LEI for right knee 14% LEI for right ankle | 1/10 deducted for right knee Nil for right ankle | 9% WPI (9% LEI for right knee combined with 14% LEI for right ankle= 22% LEI) |
| 2. Lumbar Spine | Chapter 4 | Chapter 15, | 7% WPI | 1/10 | 6% WPI | |
| 3. Left Lower Extremity (knee) | Chapter 3 | Table 17-10 | 4% WPI | 1/10 | 4% WPI (rounded) | |
| 4.Right Upper Extremity (elbow) | Chapter 2 | Figure 16-34 Figure 16-37 | 5% WPI | - | 5% WPI | |
| 5. Scarring | Chapter 14-Table 14.1 | 1% WPI | - | 1% WPI | ||
| Total % WPI (the Combined Table values of all sub-totals) | 22% WPI | |||||
0
5
0