Felici v Amplex Constructions Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Felici v Amplex Constructions Pty Limited [2022] NSWPICMP 315
APPELLANT:	Gianfranco Felici
RESPONDENT:	Amplex City Construction Pty Ltd
APPEAL PANEL:	Member Deborah Moore Medical Assessor Gregory McGroder Medical Assessor Drew Dixon
DATE OF DECISION:	4 August 2022
CATCHWORDS:	WORKERS COMPENSATION - The appellant appealed the one-half deduction pursuant to section 323 of the Workers Compensation Act 1998 made by the Medical Assessor; appellant claimed only one-tenth should have been deducted; panel found extensive pre-existing conditions but noted that the appellant had been able to work until the incident pleaded; Held — one-third deduction appropriate; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 April 2022 Gianfranco Felici (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr T Michael Long, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 30 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, 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.
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 although one was requested, we consider that we have sufficient evidence before us to enable us to determine the appeal for reasons that will be outlined in due course.

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.
In summary, the appellant submits that the MA erred in the deduction he made pursuant to s 323 of the 1998 Act.
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 (WPI) in respect of the lumbar spine, right lower extremity and scarring (TEMSKI) resulting from an injury on 15 September 2017.
The MA obtained the following history:
“The injury occurred on 15 September 2017, when Mr Felici lost his balance on a scaffold and fell awkwardly onto his buttocks, right hip and right knee. He required assistance and was driven home. He attended his general practitioner, Dr R Tringali … MRI examination of the lumbar spine right knee and right hip were arranged…
He was referred to Dr P Bentivoglio, Neurosurgeon who recommended conservative treatment. Following a subsequent consultation on 13 March 2018, Dr Bentivoglio in a letter to Dr Tringali indicated, ‘… he did receive benefit from the facet joint injections until six to eight weeks ago and now the low back pain has recurred and he is getting bilateral leg pain. His walking is limited to about five minutes. He had a new MRI scan, which shows he has severe spinal canal stenosis at L4-L5, he has significant facet joint arthropathy at L4-L5 and L5/S1 and he has significant degenerative disease at L4-L5 and L5/S1. I think he is going to need to have the spinal canal stenosis at L4-L5 open and that would be followed by a fusion from L4 to S1 using posterior screws and posterior lateral bone grafts. The aetiology of the problem is undoubtedly that he has significant pre-existing degenerative disease of his lumbar spine, which has been exacerbated from the fall from the scaffolding …’ (My emphasis)
He was unable to work from the date of the accident until 23 November 2017, returning to restricted supervising duties, four hours a day, three days a week. He gradually increased this to four days a week from 05 December 2017. He had continued to have ongoing pain in his back with radicular symptoms in the right and left legs and pain in the right knee. Conservative measures did not respond and he then saw Dr McGee-Collet, Neurosurgeon, who on 08 February 2019 undertook laminectomies L4, L5 and bilateral rhizolysis.
At the beginning of the operation note Dr McGee-Collet indicated: ‘This 55 years old gentleman presented with a long history of progressive more disabling neurogenic claudication. Serial MRI scans showed worsening spondylotic L4-5 stenosis …’
On 13 March 2019 motor vehicle accident in which the vehicle Mr Felici was driving was struck in the rear by another vehicle. He sustained injuries to his right shoulder, left wrist, right hip, left and right knees, lower back. He was reviewed by Dr McGee-Collet on the following day, 14 March 2019 who recorded in a letter to the general practitioner: ‘The expected incisional back pain (from the laminectomies) had eased up until yesterday when his involvement in a car crash aggravated the back pain and also generated some neck pain. On examination there were no new findings in the lower limbs and there were no neurological abnormalities in the upper limbs. The skin had healed satisfactorily. Mr Felici was reassured that the increase in low back pain and neck pain resulting from his involvement in a car crash are not expected to be serious and are expected to ease over the next week or so …’ Thereafter symptoms in the various regions settled although possibly his back pain was slightly increased.”
After setting out details of the appellant’s present treatment, the MA noted present symptoms as follows:
“•      Following the spinal surgery he continues to have constant pain in his lumbar back up to 8/10 severity. This is aggravated with prolonged sitting, prolonged standing and on attempting to walk particularly for more than 10 minutes. From time-to-time his back, ‘locks’ with pain and this radiates to the right groin and down the right leg to all the toes. The pain is aggravated by coughing and sneezing. He has similar pain radiating to the left groin and thigh. Following spinal surgery, however, the pain in his legs was greatly diminished.
•       Sensory change. He is aware of numbness on the under aspect of right and left feet.
•       He has gained 15-20 kg since sustaining the injury.
•       Urinary/Bowel Symptoms: Nil.
•       Gastrointestinal: He suffers with heartburn made worse with anti-inflammatory drugs which he avoids.
•      Emotional Factors: Anxiety and depression have been profound. He has received treatment from a psychiatrist and psychologist in Sydney. Mr Felici indicated that these changes were mainly brought about because of his inability to work.”
In commenting on “Details of any previous or subsequent accidents, injuries or condition” the MA said:
“•      02 April 2015, rear-end motor vehicle accident in which he sustained injuries to his neck, right shoulder and lower back.
•       Subsequent medical appointments indicate frequent mention of back pain without specifically indicating the site of the back pain, although later medical entries and particularly following the work injury on 15 September 2017 such records indicate lumbar back pain.
•       15 September 2016, a letter from Michael Donnellan, Neurosurgeon, to Dr Tringali who indicated, ‘… he tells me that the back pain and leg pain is the worst aspect of his pain syndrome. He does however have a reasonably right [ tight] canal stenosis at L4/5. I have offered him either minimally invasive decompressive surgery at this level or to first have a trial of steroid injections to see if his pain settles down with conservative management. He will probably get good relief from the steroid injections for 3-6 months but he will almost certainly need surgery at some point in the future…’
•       Following the motor accident on 02 April 2015, the general practitioner recorded the diagnosis as: ‘Cervical disc lesion, Right shoulder impingement syndrome, Lumbar disc lesion …’.
•      Most consultations were with regard to depression and anxiety with panic attacks, however, on frequent occasions general practitioners recorded back pain.
•       18 August 2017, prior to the motor accident on 15 September 2017 with Dr Tringali recorded, ‘Acute back pain. Intrascapular pain. Cervical pain. Right shoulder pain …’
•       13 March 2019, motor vehicle accident in which he injured his neck, left and right knee and right shoulder. Subsequently, ‘last year cannot remember the date’ operation arthroscopy repair of left shoulder, rotor cuff tear, undertaken. Subsequently he has developed further movement in the left shoulder, however, he continues to have pain in the right shoulder which was injured in the motor accident of 13 March 2019.
•       No history of previous injury or symptoms right hip or right knee.”
The MA then noted the impact of Mr Felici’s injuries on his activities of daily living, stating:
“•      Walking: Greatly limited although he attempts to walk with a stick in his right hand.
•       Running: Is impossible.
•       Standing: It is necessary to move about because of the symptoms in his back and right knee.
•      Bending: Aggravates his back pain.
•       Kneeling/Squatting: Impossible.
•       Sitting: It is necessary to sit on his left buttock. Should he sit on his right buttock he is troubled by a good deal of pain in that region, the right hip and right upper leg.
•      Lifting: He is unable to lift.
•      Stairs/Ladders: He is no longer required to use stairs or ladders. He would have difficulty in negotiating stairs.
•       Slopes/Uneven Ground: Difficult to negotiate.
•       Driving: Very limited over short distances and he has relied on his partner to drive him.
•      Home Activities: He does not undertake any home activities, although he did so prior to the work injury but this is now impossible. He is able to cope with his own bathroom and toilet requirements, although occasionally he requires help with some of his clothing.
•       Shopping: He relies on others to undertake the shopping. • Gardening: There is no gardening requirement.
•       Recreational Restrictions Since Injury: Previously he had enjoyed playing the accordion but this is now impossible. Playing the guitar is impossible because of difficulty with his fingers. Previously he had enjoyed riding horses but this is now impossible.”
The MA then described his findings on physical examination as follows:
“He was a well-built man who walked slowly. Weight: 115 kg (normal weight before accident about 95 kg). He was pleasant and very co-operative - but a vague historian. He tended to over-react and complained of pain on taking out reflexes. Angular measurements when undertaken were performed using a goniometer with measurements at least three times to assess consistency…
Lumbar Spine (Lumbosacral): A 10 cm uncomplicated vertical midline operation scar. Movement of the lumbar spine was limited. Extension was 20% of normal. Flexion was 40% of normal. Lateral angulation right and left was each 40% of normal. Movement of his back and on taking out reflexes revealed an abnormal pain reaction. Dysmetria was noted and there was marked paravertebral muscular guarding. Neurological examination of the lower extremities revealed no differential muscular wasting or weakness identified. All reflexes were suppressed and not elicited…
Diminished sensation light touch, 2-point discrimination lateral aspect right leg and plantar aspect both feet. Straight leg raising right 80 degrees, left 80 degrees complaining of pain in back but not in legs…
He was able to stand on his right leg and left leg independently without support. He could stand on the tips of his toes and heels…
No differential muscular wasting of thighs measured 10 cm above proximal patella. No differential muscular wasting measured same point calves. Knee movements both sides…
Some crepitus right knee patellofemoral with right patellar tenderness. Occasional coarse crepitus noted within right knee on movement…
Ankles/Feet/Toes: No specific abnormality.”
The MA then turned to discuss the radiological material he had before him, stating:
“Imaging studies prior to the injury on 15 September 2017:
• 21 July 2017, MRI cervical and lumbar spine: Reported by Dr L Masters. With regard to the lumbar spine the radiologist concluded, ‘There is moderate congenital narrowing of the lumbar canal and superimposed spondylotic change which is most advanced at L4/5 where there is moderate central and lateral recess stenosis as described above …’. In the body of the report: ‘… at L4/5 there is moderate central and lateral recess stenosis right greater than left secondary to a disc bulge and moderate posterior degenerative change with the posterior changes producing the major element of the central and lateral recess stenosis. There is bilateral degenerative foraminal narrowing left greater than right with potential mass effect in particular on the left L4 nerve root. At L5/S1 there is a very minor retrolisthesis. There is a disc bulge/posterior peridiscal osteophyte and facet joint arthrosis with resulting mild central and lateral recess stenosis. There is bilateral degenerative foraminal narrowing left greater than right secondary to facet joint arthrosis particularly on the left with potential irritation of the left L5 nerve root.…’.
Imaging studies following the injury on 15 September 2017:
• 23 September 2017, MRI right hip: Reported by Dr T Dugall. ‘Unremarkable right hip evaluation.’
• 23 September 2017, MRI lumbosacral spine: Reported by Dr T Dugall. ‘Conclusion: left-sided foraminal stenosis of L5/S1 level with impingement of the left L5 nerve root. Moderate grade canal stenosis of L4/5 level with narrowing of the exit foramen and partial impingement of the exiting L4 nerve root …’.
• 23 September 2017, MRI right knee: Reported by Dr T Dugall. ‘Conclusion: Horizontal tear of the posterior horn of the body of the medial meniscus with breach of tibial articular surface. Grade 1 to Grade 2 chondral fibrillation of medial patellar facet. Early Grade 2 chondral wear of the medial femoral compartment …’
• 05 March 2018, MRI lumbosacral spine: Reported by Dr A Steinberg.
‘Comment: Acquired canal stenosis. Moderately severe L4/5 associated with foraminal stenosis moderately severe right side more than left. Bilateral foraminal narrowing L5/S1 left side more than right. This appears to be due to a combination of a disc protrusion and left-sided facet joint hypertrophic degenerative arthritis …’.
• 20 May 2018, MRI lumbar spine – following further motor vehicle accident on 13 March 2019: Reported by Dr V Liu. ‘Comment: Post-surgical changes (L4-5, L5/S1 laminectomies) are noted as described. No enhancing epidural Phlegmon/abscess. No recent fracture or acute post-traumatic abnormalities. Multilevel degenerative changes as described …’”.
The MA summarised the injuries and diagnoses as follows:
“As a result of an injury he sustained at work on 15 September 2017, Mr Felici who is now 55 years of age, sustained injuries to his lumbar back, right hip and right knee. The injury aggravated pre-existing symptomatic changes from longstanding degenerative lumbar spinal canal changes with spinal stenosis. The pre-existing changes were sufficient for a surgeon, Dr Michael Donnellan, to propose surgical decompression in a letter dated 15 September 2016 prior to the work injury of 15 September 2017.
He continued to have pain in the right hip including pain in the right and left groin. However, MRI examination of the right hip revealed no abnormality and no abnormality was detected on the present clinical examination.
In the work injury he sustained an injury to his right knee and has ongoing pain related to that joint. The pain is mainly anteriorly and is associated with patellofemoral crepitus and tenderness of the patella. No other abnormality was noted in the right knee. An MRI examination following the motor accident revealed chondral fibrillation of the medial patellar facet. It also revealed chondral wear in the medial femoral compartment. A horizontal tear was noted in the posterior horn and the body of the medial meniscus.
With regard to his spinal stenosis, spinal decompression with laminectomy at L4-5, L5/S1 relieved symptoms of neurologic claudication in his right and left legs, however he continues to have non-radicular complaints involving both legs together with lumbar back pain. A motor vehicle accident following his spinal surgery on 13 March 2019 caused a temporary aggravation of his back symptoms but it is considered that the effects of this accident on his lumbar back, right hip and right knee was temporary and has resolved.
Prior to the work injury, Mr Felici had documented extensive history of anxiety, depression and panic attacks which required psychiatric and psychological treatment. These conditions were aggravated by his work injury on 15 September 2017 and again by the motor accident on 13 March 2019.
He has had injuries to his right and left shoulders and subsequent surgery to his left shoulder but this is unrelated to the work injury of 15 September 2017.”
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. Mr Felici had well-documented pre-existing symptomatic spinal stenosis prior to the injury of 15 September 2017. It was sufficiently symptomatic and severe for a surgeon in September 2016 to propose spinal decompression surgery.”
The MA assessed 9% WPI.
He explained his calculations as follows:
“History and examination during the present consultation, review of general practitioner records in order to assess problems, particularly related to the worker’s back or any other region prior to the injury sustained on 15 September 2017.
The letter of 15 September 2016 by Dr Michael Donnellan, Neurosurgeon, proposing spinal decompression for lumbar spinal canal stenosis is regarded as particularly significant with regard to the worker’s pre-existing lumbar back symptoms.
Restriction of movement in the lumbar back with dysmetria, paravertebral muscular guarding and spasm. However, there were insignificant peripheral signs in the lower extremities to diagnose radiculopathy. It is considered he has non-verifiable radiculopathy involving his right and left lower extremities.
Examination of the right hip failed to reveal any abnormality, in particular, there was no restriction of movement, no crepitation, no tenderness over the greater trochanter and Trendelenburg test was negative.
Examination of the right knee revealed no abnormality apart from patellofemoral crepitation and tenderness of the patella.
Lumbar Spine: Guidelines Page 29, 4.37; Effect of Surgery, Surgical decompression for spinal stenosis is DRE Category III - AMA 5 Table 15-3, Page 384. 10%-13% impairment of the whole person (WPI) determined as 10% WPI. To which is added impairment of activities of daily living (ADLs) – he is unable to undertake home care but can undertake personal care – 2% Whole Person Impairment. Impairment: 12% Whole Person Impairment.
Guidelines instruct Page 29 Table 4.2 modifiers for DRE categories following surgery 1% for each additional level, therefore: Total Spinal Impairment in the absence of radiculopathy: 13% Whole Person Impairment.
Right Knee: The only abnormality noted was patellofemoral crepitation and tenderness on pressure on the patella. Referring to Page 544, Table 17-31 of AMA 5 subsection Impairment: 2% Whole Person Impairment.
Scarring: The lumbar spinal operation scar is uncomplicated and Guidelines Page 73 indicates, ‘Uncomplicated scars or standard surgical procedures do not, of themselves, rate an impairment’. Using the TEMSKI chart, Guidelines74, Table 14.1 it would be 0% WPI.”

The MA then turned to comment on the other medical opinions and said:
“• 27 August 2020, Dr P Embrey-Walder report: When assessing impairment lumbar spine he incorrectly used DRE Lumbar Category IV 20% WPI which is not in accordance with the Guidelines which indicates that surgery for spinal decompression – laminectomy should be DRE Lumbar Category III – 10% WPI. Dr Embrey-Walder also deducted one-tenth of the back impairment for pre-existing spondylitic changes. This is considered as an insufficient deduction noting the pre-injury symptoms and diagnosis of spinal canal stenosis and a surgeon proposing spinal decompression in 2016. Right knee: I agree with the determination of impairment 2% WPI because of chondromalacia patellae. Scarring: Dr Embrey-Walder determined a 1% impairment. This is considered not justified for an uncomplicated operation scar.
• 27 November 2020, Dr Derek Stanley-Clarke (Orthopaedic Surgeon) report: Dr Stanley-Clarke also determined an impairment lumbar spine 13% WPI. No impairment was made with regard to the right hip or right knee. However, with regard to the lumbar spine and pre-existing pathology, Dr Stanley-Clarke has indicated: ‘… this in relation to his spine undoubtedly significant pre-existing degenerative change and also pre-existing arthrosis of the knee, a 10% deduction applies …’. It is considered that this deduction is inappropriate with regard to the existence of symptomatic pre-existing spinal stenosis warranting surgery prior to the injury on 15 September 2017.”
The MA added:
“In this case the worker had well-documented pre-existing degenerative changes in the lumbar spine with imaging studies confirming spinal stenosis and a neurosurgeon, Dr Michael Donnellan, advocating decompressive spinal surgery in a letter to the worker’s general practitioner dated 15 September 2016. It is considered probable that the worker with the natural progression of the degenerative change in his lumbar spine would have required spinal surgery without the occurrence of the work injury on 15 September 2017. On this basis, one-half deduction of the present impairment is considered appropriate.
There is no deductible proportion with regard to the right knee.”
The appellant does not challenge the primary assessments made by the MA, only the deduction he made with respect to the lumbar spine.
The appellant makes the following submissions:
(a)    Clause 1.28 of the Guidelines provides that, the deductible proportion which pertains to a pre-existing condition or abnormality “is 1/10th of the assessed impairment, unless that is at odds with the available evidence”.
(b)    When the MAC is read as a whole and based on what has been highlighted by the portion of the reasons reproduced above, it is apparent that the MA did not approach his statutory task consistent with the guidelines i.e. he ought to have not made the deduction of one-half because: (i) a deduction of 1/10 was not at odds with the available evidence; and (ii) a deduction of one-half was not warranted.
(c)    The evidence demonstrated that his condition markedly worsened post-2017 injury and this caused his lumbar spine issues to come to the fore, with the appellant actually needing to undergo surgery, as opposed to surgery having been suggested by Dr Donnellan. The evidence shows that the appellant will need to undergo far more invasive surgical treatment than the surgery suggested by Dr Donnellan, as Dr Bentivoglio has indicated that the appellant will need to undergo a fusion in the future.
(d)    In his statement, dated 17 February 2021 the appellant, stated:
“I have had one previous claim for compensation arising from a motor vehicle accident which occurred on 02/04/2015 where I injured my neck, right shoulder and lower back….I did not undergo any surgery as a result of these injuries and was able to make a return to full unrestricted work duties.”
(e)    At the time of the subject injury, he was self-employed and working for [his] company, Amplex Constructions Pty Ltd.
(f)     It was after the subject workplace injury that he was referred to undergo treatment with Dr Bentivoglio who recommended he undergo a fusion in or around March 2018.
(g)     It was after the subject workplace injury that the appellant underwent lumbar spine surgery on 6 February 2019.
(h)    In his report dated 28 August 2020 Dr Endrey-Walder indicated that:
“Mr Felici today acknowledged that he had quite significant symptoms at the right hip and right knee following his fall off the scaffolding in September 2017, this in addition to what was clearly his most significant injury, that to the lumbar spine. … Mr Felici has been out of the workforce since the accident…There is little doubt that his severe ongoing back pain and some referred pain, possibly sciatica into the left leg, is by far the most significant problem in this regard.”
(i)    The expert, in the circumstances of this matter, opined that deduction of 1/10th was appropriate. The opinion of Dr Endrey-Walder highlights, from a medical perspective, the appellant’s condition worsened subsequent to the incident on 15 September 2017. It also highlights the change in the nature of the appellant’s issues by virtue of the fact that the appellant began to suffer from sciatica post 15 September 2017.
(j)    This is consistent with the clinical records of Norton Street Medical Centre, perusal of which demonstrates the appellant only began to experience sciatica subsequent to the 2017 workplace incident, as evident from the clinical entries dated 20 September 2017 and 20 December 2017.
(k)    Dr Bentivoglio noted the presence of underlying degenerative issues in the appellant’s lumbar [spine], however, the Neurosurgeon noted that this had “been exacerbated by the fall”. In his subsequent report dated 20 October 2017 Dr Bentivoglio reviewed the appellant’s bone scan and noted the imaging demonstrated a worsening in the appellant’s lumbar spine condition and flagged the fact that, should non-operative treatment not succeed “he is probably going to need to have quite extensive surgery; a decompression of the L4-L5 level for his spinal canal stenosis and a fusion form L4 to S1”.
(l)    Such an invasive procedure had not been recommended in the past and, even having regard to the report of Dr Donnellan, surgery had not been addressed in such strong terms.
(m)     Dr Bentivoglio further stated:
“The aetiology of the problem is undoubtedly that he has significant pre-existing degenerative disease of his lumbar spine, which has been exacerbated from the fall from the scaffolding, which is slowly but surely preventing him from working. He has been told that this operation will not enable him to return to work as a builder and he will only be able to perform light duties in the future.”
(n)    Dr Bentivoglio’s opinion is supported by Dr McGee-Collet, neurosurgeon. In his report dated 31 January 2019 he indicated that “The recent MRI scan showed severe L4/5 stenosis worse than on the previous study.”
(o)    The appellant underwent surgery with Dr McGee-Collett on 8 February 2019 and it is apparent from the operation report that “Serial MRI scans showed worsening spondylotic L4/5 stenosis.”
(p)    The respondent’s expert, Dr Stanley-Clarke, noted in his report dated 27 November 2020 that the subject work incident rendered the appellant’s underlying issues to become symptomatic i.e. they were not symptomatic at the time he sustained his injuries on 15 September 2017.
(q)    The appellant submits that above evidence demonstrates the MA’s deduction was at odds with the evidence and a deduction of 1/10 was appropriate.
(r)    The MA focused solely upon the opinion of Dr Donnellan and his suggestion of surgery, even though:
(i)the appellant did not undergo that surgery at the time;
(ii)despite not undergoing the surgery, the appellant was able to work and function without restriction, and
(iii)there is no indication in the evidence when the appellant would have actually needed to undergo any form of surgery had it not been for the subject injury, noting he was able to work etc without requiring same.
(s)    The appellant submits that the MA’s conclusions were not available on the evidence and a deduction of 1/10 ought to have been made.
The respondent submits that:
“The provision contained in section 323 (2) of the 1998 Act does not apply to this matter as the extent of any deduction was not difficult or costly to determine and would have been inconsistent with the evidence before the MA, particularly the evidence of significant pre-existing spondylitic change in the lumbar spine that was a significant factor in the appellant proceeding to surgery. Accordingly it was appropriate that the MA, in compliance with the Guidelines, applied a greater deduction and he exercised his clinical judgement in deducting one-half.”
The Panel has carefully considered all of the evidence.
Chapter 1.28 of the Guidelines requires an MA to indicate if there is a deductible proportion due to any pre-existing condition and specifically states: “the deduction is 1/10^th of the assessed impairment, unless that is at odds with the available evidence” (our emphasis).
At the outset, we agree with the respondent’s submission that the evidence discloses a significant pre-existing condition which in our view is at odds with a one-tenth deduction for reasons that follow.
Clinical notes reveal frequent complaints of back pain throughout 2015 and 2016 pre-dating the injury in 2017.
An MRI of the lumbar and cervical spines dated 21 July 2015 reported:
“For the purposes of vertebral body annotation for this report S1 is transitional. If intervention or surgery is contemplated on the patient then correlation of vertebral body levels…with plain films is recommended.
There is spondylitic change from L3/4 to L5/S1 characterised by disc space narrowing, peridiscal osteophyte formation and reactive end-plate changes: the spondylitic change is most advanced at L5/S1.
There is underlying congenital narrowing of the lumbar spine due to short pedicles…
There is mild crowding of the roots of the cauda equina secondary to canal stenosis al L4/5 but no intrinsic abnormality…
CONCLUSION: There is moderate congenital narrowing of the lumbar canal with superimposed spondylotic change which is most advanced at L4/5 where there is moderate central and lateral recess stenosis…”
Dr Donnellan wrote to Dr Tringali on 15 September 2016 stating:
“….he tells me that the back pain and leg pain is the worst aspect of his pain syndrome. He does however have a reasonably right [tight] canal stenosis at L4/5. I have offered him either minimally invasive decompressive surgery at this level or to first have a trial of steroid injections to see if his pain settles down with conservative management. He will probably get good relief from the steroid injections for 3-6 months but he will almost certainly need surgery at some point in the future….”
The presence of severe stenosis on the right side as at September 2016 together with extensive facet joint arthritis demonstrates the severity of the appellant’s pre-existing condition, as noted in the MRI of July 2015 referred to above.
This was also noted by Dr Bentivoglio.
Having said that, we are also mindful that Mr Felici was able to continue with fairly strenuous duties following the injuries in 2015. As he said: “I did not undergo any surgery as a result of these injuries and was able to make a return to full unrestricted work duties.”
Clearly he was managing his work duties despite his ongoing symptoms.
Additionally, Dr Bentivoglio also said that Mr Felici’s condition had been “exacerbated” by the fall in 2017. As the appellant pointed out:
“In his subsequent report dated 20 October 2017 Dr Bentivoglio reviewed the appellant’s bone scan and noted the imaging demonstrated a worsening in the appellant’s lumbar spine condition…”
Having regard to all this evidence, we agree that the MA’s deduction of one-half was against the weight of the totality of the evidence.
In our view, a deduction of one-third is appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 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:	W629/21
Applicant:	Gianfranco Felici
Respondent:	Amplex City Construction 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 T Michael Long 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	15/9/2017	Chapter 4: pp 24-30. Page 29. 4.37. Table 4.2	Table 15-4: Page 384; DRE Lumbar Category IV	13%	1/3rd	9%
2. Right lower extremity (right hip)	15/9/2017	Chapter 3: pp 13-23	Page 537, Table 17-9	0%	0%	0%
3. Right lower extremity (right knee) 4. Scarring	15/9/2017 15/9/2017	Chapter 3: pp 13-23 TEMSKI Pages 73-76	Page 544, Table 17-31	2% 0%	0% 0%	2% 0%
Total % WPI (the Combined Table values of all sub-totals)					11%

[2022] NSWPICMP 315

4 August 2022