George Weston Foods Ltd v Khaled
[2024] NSWPICMP 202
•9 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | George Weston Foods Ltd v Khaled [2024] NSWPICMP 202 |
| APPELLANT: | George Weston Foods Ltd |
| RESPONDENT: | Mostapha Khaled |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; right upper extremity injury; appeal by the employer worker concerned absence of a section 323 deduction by the Medical Assessor (MA); a section 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed; the pre-existing condition has not contributed to the overall level of permanent impairment assessed because of the approach taken by the MA in using the contralateral limb (left upper extremity) as the baseline for assessment of the right upper extremity; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 December 2023 the employer George Weston Food Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 November 2023.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
In the formal appeal application form, the appellant did not request that the worker undergo a re-examination by a Medical Assessor member of the Appeal Panel. Although in their submissions the appellant said that in the alternative to revoking and issuing a new MAC with a one-tenth deduction applied, the Appeal Panel should re-examine the worker. However, as the Appeal Panel did not find error so there was no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 21 June 2016
· Body parts referred: Right upper extremity,
Scarring - TEMSKI
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Right upper extremity | 21 June 2016 | Chapter 2 | Chapter 16 Figures 16-28, 31, 34 & 37 Table 16-3, 10a, 15, 27 | 14% | Nil | 14% |
| Scarring | 21 June 2016 | Chapter 14 Table 14.1 (TEMSKI) | 1% | Nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The employer appealed.
There is no complaint on appeal about the scarring assessment at 1% WPI.
There is no complaint on appeal about the overall level of permanent impairment assessed for the right upper extremity at 14% WPI.
The appeal concerns only the deductible proportion under s 323 applied by the Medical Assessor. The Medical Assessor made no deduction and the appellant submitted on appeal that a deduction of one-tenth should have been made.
In summary, the appellant submitted on appeal that the Medical Assessor was required to make a deduction under one-tenth because of his findings of a pre-existing condition affecting the right upper extremity to which he made numerous references throughout the MAC and a deduction of one-tenth should have been applied.
The respondent worker, Mr Mostapha Khaled (the respondent) submitted that the Medical Assessor did not make a demonstrable error and the MAC should be confirmed.
The Medical Assessor recorded the history relating to injury as follows: (emphasis in original)
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Mr Khaled reported that on 21 June 2016 he commenced work at 6AM, which was his normal start time. He was doing picking and packing of bread crates. He was lifting several crates of bread weighing approximately 26kgs above shoulder height. He felt pain and discomfort in his right elbow and dropped the crates. He ceased work and consulted Dr Shams, his General Practitioner on the same day. Dr Shams referred him for plain x-rays and an ultrasound of the right elbow, which were carried out the following day. The plain x-rays revealed osteoarthritis of the radiocapitellar and the ulnar trochlear joints of the elbow. There was also degenerative change in the proximal radioulnar joint. The ultrasound revealed tendinopathy of common extensor and common flexor tendon insertion sites. There was a partial thickness intrasubstance tear of the common extensor tendon as well as a partial thickness intrasubstance tear of common flexor tendon. It was reported that there was evidence of underlying osteoarthritis with a joint effusion.
Mr Khaled reported that he was referred to physiotherapy and commenced on analgesic medication. The pain and discomfort in his right elbow continued and
Dr Shams referred him for an MRI scan of the right elbow, which was carried out on
25 August 2016. This confirmed the joint osteoarthritis already noted as well as the tendinopathy and a large joint effusion. Following the MRI scan he was referred to
Dr Rahme, an Orthopaedic Surgeon whom he saw on 9 September 2016. Dr Rahme reviewed his investigations and believed that he would require arthroscopic removal of the loose bodies from the right elbow but suggested that he see Dr Dao, another Orthopaedic Surgeon for his ongoing treatment. Mr Khalid reported that he continued with physiotherapy but the pain and discomfort in the right elbow if anything increased and eventually, he also noted altered sensation in the ulnar half of the right hand involving the little, ring and middle fingers.
Dr Dao noted that he had a painful and stiff right elbow associated with locking and clicking as well as paraesthesia in the ulnar border of the right hand. He noted that there was Grade 4 1st dorsal interosseous power and a positive Froment’s sign. He also had a positive test for ulnar nerve compression. Dr Dao recommended that he have a clean out of the right elbow and at the same time a decompression of the right ulnar nerve, which he believed was being compressed by the bony loose bodies.Surgery was carried out on 31 July 2017 with arthroscopic removal of the loose bodies from the right elbow and an ulnar nerve decompression. Mr Khalid reported that he had short term relief with decreased pain and discomfort and slightly improved range of movement. He stated though that this only lasted for several months. It was also reported by Dr Dao that he had no further paraesthesia in the right hand. Mr Khalid today reported that he believed that the sensory changes in the ulnar nerve territory had not actually improved at any time. Dr Dao referred him for nerve conduction studies, which were carried out on 28 February 2018. Dr Park, the Neurologist reported that all sensory potentials were absent. Motor conduction also showed generalised severe slowing in demyelinating range. Dr Park believed that the findings are supportive of hereditary neuropathy (CMT Type 1). He stated that he was unable to clarify he had ulnar neuropathy on the right and stated that clinically he had distal weakness in both upper limbs and lower limbs.
Following the nerve conduction studies Dr Dao referred him to Professor Nicholson, Neurologist who was a Specialist dealing with hereditary neuropathies. Mr Khaled was seen by Professor Nicholson on 15 March 2018. From the nerve conduction studies Professor Nicholson believed that Mr Khaled has Charcot-Marie-Tooth Neuropathy (CMT). He was referred for further DNA testing and blood tests confirmed that he has CMT1A, an hereditary neuropathy. The Professor did not believe that the hereditary neuropathy was work related and was unrelated to his previous surgery. On discussion with Mr Khaled today he did not believe that he had this condition as there was no one else in the family with these symptoms or signs. I note though that the blood test results are definitive.
Dr Dao was uncertain as to whether further surgery would give any improvement. This was because he had ongoing symptomatology in the right elbow and had continued decreased sensation into the middle, ring and little fingers on the right side. Dr Dao now referred him to Dr Hughes, an Orthopaedic Surgeon who specialises in elbow and shoulder conditions. Dr Hughes referred him for plain x-rays and a further ultrasound of the right ulnar nerve. The ultrasound on 22 November 2018 revealed an enlarged ulnar nerve with a previous ulnar nerve release. It was reported that the ulnar nerve was unstable with possible fascial compression of the ulnar nerve proximal and distal to the cubital tunnel. Dr Hughes believed that further surgery on the right elbow maybe beneficial in stabilising the ulnar nerve at the elbow. This would be best done by an ulnar nerve transposition. The doctor though was concerned that major surgery on the right elbow could cause swelling in the arm and deterioration in the median nerve at the wrist, which was associated with the CMT1A condition. He subsequently organised for Mr Khaled to be seen by Dr Beard, Hand Surgeon who believed that a right carpal tunnel decompression at the same time as the right elbow surgery would be possible. It appears that this was a preventative measure rather than a treatment for an injury from the accident.
On 22 October 2019 Dr Hughes performed a right elbow arthroscopy with a radial head excision and a right ulnar nerve subcutaneous transposition. At the same time
Dr Beard performed a right carpal tunnel decompression and flexor synovectomy.
Mr Khaled reported that he again had short term improvement in the paraesthesia in his middle, ring, and little fingers of the right hand but this lasted only approximately 3 months. I noted that in a letter from Dr Hughes dated 9 December 2019 that he did have partial improvement in ulnar nerve symptoms in terms of sensory changes, but he still had ongoing paraesthesia to some extent. It was noted that there was also some intrinsic wasting in the right hand.
Further nerve conduction studies were carried out on 10 August 2020 by Dr Parikh, Neurologist. Again, sensory potentials were absent, which is associated with his CMT 1A syndrome. I noted that the CMAP amplitude potentials were improved to his previous nerve conduction studies. It was noted though that he continued to have distal motor latencies, which were marked and delayed and there was marked slowing of motor conduction velocities. This is again consistent with his known hereditary disorder.
Mr Khaled reported that as well as his symptoms and signs in his right upper extremity that he believed that he had also developed some pain and discomfort in his left elbow even though there was no frank injury. He reported that he had also developed some low back pain as well as neck pain. The neck and back pain he stated had been present for the last 3 years. I note that he had an MRI scan of the cervical spine, which was reported as being normal. He stated that he has had no investigations of his low back. It appears that he has had no treatment for either his cervical spine or lumbar spine and has had no treatment for his left upper extremity.· Present treatment: He reported that he continues to see Dr Shams, his General Practitioner every 2 weeks. This is mostly for a quick check up and a certificate of capacity. He is no longer getting prescriptions as he has no prescription medication.
He stated that he ceased physiotherapy approximately 4 months ago as it was not giving him any benefit. He reported that he was given exercises to continue by the physiotherapist but has not been doing the exercises at all. From discussion it appears that this has led to increase stiffness in both the right elbow and right wrist.· Present symptoms: He reports pain and discomfort over the posterior aspect of the right elbow, which is constant in nature. He reports that the elbow feels heavy. With respect to the right wrist since ceasing his exercises he has found that the wrist has also become quite stiff. He reported ongoing numbness and tingling involving the right hand specifically the ring, little and middle fingers. He did not report any significant numbness or tingling in the thumb or index finger of the right hand and no tingling or numbness in the left hand.
· Details of any previous or subsequent accidents, injuries or condition: He reported no previous accidents or injuries.
· General health: Mr Khaled agreed that he had been diagnosed with CMT 1A, a hereditary neuropathy since the time of his injury in 2016. I noted that there is no treatment for this hereditary condition. I also again noted that Mr Khaled did not believe that he has this condition. He reported no other medical conditions.
· Work history including previous work history if relevant: He reported that he had been employed by George Weston Foods Pty Ltd for a period of 13 years. He had been a warehouse picker and packer and had also been operating machinery. Following his injury on 21 June 2016 he has not returned to any form of employment. His workers compensation payments have been ceased by the insurance company and he is currently on a job seeker benefit but is not required to look for work due to his medical condition.
· Social activities/ADL: Mr Khaled reported that he is divorced and has 2 children aged 14 and 11. He was divorced in 2017 following his injury at work. The children currently live with their mother. He is currently living with his parents and on questioning reports that he does nothing around the house.”
The Medical Assessor noted that the worker reported no prior injuries or conditions.
The Medical Assessor recorded the findings on physical examination which were not the subject of complaint on appeal as follows:
“Mr Khaled was 165cms tall and overweight at 112.8kgs. He was noted to walk with a slightly broad-based gait. He was noted to have bilateral pes cavus as well as bilateral pes planus. He was able to stand on his toes without difficulty but was unable to stand on the heel on either side. This is consistent with muscular weakness associated with his hereditary neuropathy.
Upper extremity:
Examination of both elbows revealed mild tenderness posteriorly on the right side but no tenderness on the left side. Active range of movement in both elbows was measured using a goniometer on several occasions.
Elbow Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
110°
Extension
+10°
+5°
Supination
50°
70°
Pronation
80°
90°
He reported significant pain on flexion and extension of the right elbow but no pain on movement of the left elbow.
Active range of movement in both wrists was measured using a goniometer. He reported no significant pain in movements of the wrist at the wrist itself but it did cause pain in the right elbow. No pain was reported over the left wrist. Active range of movement in both wrists was measured on several occasions.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
40°
50°
Extension
30°
60°
Radial Deviation
20°
20°
Ulnar Deviation
20°
20°
It was noted that there was a degree of wasting in the right arm above and below the elbow. The circumference of the right upper arm was 33cms compared to 35cms on the left. The circumference of the right forearm was 28.5cms comparted to 29.5cms on the left. It was also noted that he had significant wasting of the right thenar eminence in the hand but no wasting in the left hand. It was also noted that he had no reflexes in either the triceps, biceps or brachioradialis on either side.
Neurological examination of both upper limbs with respect to the ulnar nerve revealed Grade 4+/5 on both the left and right sides. It was noted that there was normal tone in the muscles on both sides, but all reflexes were absent. Sensation was reported as being decreased over the middle, ring, and little fingers of the right hand only. On testing with monofilament, he reported decreased sensation in these 3 fingers but not in any other finger or thumb. Two-point discrimination was tested on both sides and was noted on the right side in the middle ring and little fingers to be decreased at 5mms and 10mms. On the left side in the same 3 fingers, it was noted to be decreased at 5mms but relatively preserved at 10mms. This was even though he reported normal sensation in these fingers. Again, I note that this decrease is consistent with his CMT1A.
Scarring:
Mr Khaled was noted to have several scars over the right elbow. There were 3 portal scars as well as 2 major scars. Over the posterior aspect of the right elbow there was a 12cm scar with slightly increased colour in the scar itself and a mild contour defect. He was conscious of this scar and easily able to localise it. Over the posterolateral aspect of the right elbow there was a 5mm scar, with decreased colour in the scar and a significant contour defect. Again, he reported that he was conscious of this scar and could easily localise it. He also commented that this scar is visible to other people who have commented on it.
The portal scars around the right elbow were only 1 – 1.5cms in length and were slightly hyper-pigmented. They were though difficult to see otherwise. With respect to the right wrist there was a 2cm longitudinal scar over the palmar aspect of the wrist in the area of the median nerve decompression. This scar did not have any colour contrast with the surrounding skin and in fact was almost impossible to see. It was barely visible, and he was not conscious of this scar.”
Although the overall impairment assessed a s a result of injury is not the subject of complaint on appeal, the findings on physical examination are relevant because of the manner in which the Medical Assessor approached the assessment of the right upper extremity including the taking into account of any pre-existing condition by reference to the findings on examination for the contralateral limb (the left upper extremity).
The Medical Assessor noted that the worker did not have special investigations with him.
The Medical Assessor summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
Mr Khaled aggravated pre-existing degenerative disease in his right elbow at the time of his injury on 21 June 2016. This aggravation was also associated with the loose bodies in the right elbow impacting upon the right ulnar nerve. Eventually he required surgery on 2 occasions to the right elbow involving both the arthritis in the elbow as well as the ulnar nerve compression.
His injury was complicated by the diagnosis of a hereditary neuropathy in the form of CMT1A. This is a demyelinating condition, which causes gradual deterioration in peripheral nerves. This pre-existed his current injury and is not associated with the current injury. I note though that he probably had developed much earlier degenerative change in his right elbow because his hereditary condition had made the elbow joint sensation absent. This would explain why he had such significant osteoarthritis in the right elbow at such a young age.
In conclusion the sensory change associated with the ulnar nerve injury is partly due to the aggravation of the ulnar nerve by the injury at work on 21 June 2016. His ongoing symptomatology in the median nerve distribution on the right side is also partially related to the surgery that he had in 2019. I believe though that the weakness involved on both sides associated with CMT1A and is not related to the injury on 21 June 2016.· consistency of presentation
I believe that Mr Khaled’s presentation was consistent even though he does not believe that he has CMT1A.”
The Medical Assessor outlined the facts on which his assessment was based and explained his assessment of permanent impairment as follows: (emphasis in original)
“THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
§ The history I obtained from Mr Khaled
§ My physical examination of Mr Khaled
§ My review of his documentation, specifically that dealing with his hereditary neuropathy.
REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
Mr Khaled has a 15% whole person impairment.
In making that assessment I have taken account of the following matters:-
The history I obtained from Mr Khaled§ My physical examination of Mr Khaled. This includes the differences between his uninjured left arm and his currently injured right arm. This both consists of range of movement as well as neurological changes in each upper extremity.
§ My review of his documentation.
b. An explanation of my calculations (if applicable)
I note that Mr Khaled has a decrease in range of movement in both elbows and both wrists. On the right side he has a degree of pain and discomfort in the right elbow as well as tenderness. He has no tenderness involving the left elbow or wrist and no tenderness localised in the right wrist. Active range of movement in both elbows would be measured using Figures 16-34 and 16-37 of AMA 5. On the right side his decrease in range of movement would give 10% upper extremity impairment. On the left side the decrease in range of movement would give 5% upper extremity impairment. As there was no history of injury to the left elbow, I believe that the left elbow can be used as a baseline. Therefore, his right elbow would give 5% upper extremity impairment.
With respect to the left and right wrists his decrease in range of movement would be measured using Figures 16-28 and 16-31 of AMA 5. On the right side his decreased range of movement would give 10% upper extremity impairment. On the left side it would give 4% upper extremity impairment. Again, I note that he had no injury to his left wrist and there was no evidence of tenderness or localised condition. Therefore, the left wrist could be used as a base line and would be deducted from the right side. This would give 6% upper extremity impairment for the right wrist. A combination of 6% upper extremity impairment for the right wrist with 5% upper extremity impairment for the right elbow would give 11% upper extremity impairment.
I note that Mr Khaled has also had an excision of the right head of radius. From Table 16-27 this would give a 10% upper extremity impairment.
With respect to his peripheral nerve injury involving the right ulnar nerve and to a lesser extent the right median nerve following surgery I believe that the sensory component would be assessed in both nerves but not the motor component which is associated with his CMT1A condition. With respect to the right upper extremity from Table 16-15 a total sensory loss of the ulnar nerve below the elbow would give 7% upper extremity impairment. Taking account of his 2-point discrimination changes on today’s examination I believe that from Table 16-10a that he would be in Class 3. I believe that 50% of the total would be appropriate. Therefore, he would have 50% of 7%, which would give 3.5% upper extremity impairment, which would be rounded to 4%. With respect to the left ulnar nerve, I note that he also has sensory change in the distribution of the left ulnar nerve on two point discrimination testing. This is even though he reports normal sensation on monofilament testing. From Table 16-10 I believe that he would be classified in Class 4 and believe that 25% of the full total of 7% is appropriate. This would give 1.75%, which would be round to 2%. Using the left upper extremity on ulnar nerve sensory figure as a baseline would give 2% upper extremity impairment for the injury to the ulnar nerve on the right side.
With respect to the median nerve assessment on both sides I note that sensory testing did not give any useful information. Two point discrimination appeared to be decreased on both sides but was better in the ulnar nerve distribution. I did note though that he did have wasting in the thenar eminence on the right side but not the left side. I therefore believe that using my clinical judgement and skills that a 4% upper extremity impairment would be appropriate for the injury to the right median nerve associated with the surgery carried out in 2019.
He would therefore have a combined whole person permanent impairment for the peripheral nerve injury of 6% upper extremity impairment.
A combination of 11% upper extremity for decreased range of movement with 10% upper extremity impairment for the excision of the right radial head and 6% upper extremity for peripheral nerve injury to the ulnar and median nerve sensory area would give 24% upper extremity impairment. This would be converted to 14% whole person impairment.
I believe he would have a further 1% whole person impairment as the best fit for scarring over his right elbow and right wrist. A combination would give 15% whole person impairment.”The Medical Assessor made brief comment on the other medical evidence and other evidence before him as follows and again the Medical Assessor explains very clearly why he does not make a deduction under s 323 as compared to Dr Reiter who made a one-tenth deduction for pre-existing osteoarthritis:
“I note the Independent Medical Examination report of Dr Bodel, Orthopaedic Surgeon dated 17 September 2021. I note that Dr Bodel has made no mention of the diagnosis of CMT1A that was made before his assessment. He has assessed decreased range of movement in the right elbow as well as the left elbow. He has also assessed neurological injury to both the right median nerve and right ulnar nerve. He eventually concluded 16% whole person impairment but his included 1% whole person impairment for the left upper extremity, which I was not asked to assess. He also found 1% for scarring with which I would agree.
I note the Independent Medical Examination report of Dr Reiter, Rheumatologist dated 10 November 2022. Dr Reiter assessed decreased range of movement in the right elbow but unfortunately from the Figures involved stated that it was whole person impairment not upper extremity impairment. She made a methodological error. She also made a one tenth deduction for pre-existing osteoarthritis, but I believe that it is more appropriate to be using the uninjured left arm as a baseline as this gentleman has an hereditary neuropathy, which has left him with joints that have very little in the way of sensation. I note though that eventually with different findings she has concluded 15% whole person impairment with which I would agree.
I note the Independent Medical Examination reports of Dr Nair, Orthopaedic Surgeon dated 5 September 2022, 8 September 2022, and 20 September 2022. Dr Nair assessed the right elbow decreased range of movement as giving 8% whole person impairment and gave a further 2% whole person impairment for surgical scars. He found 10% whole person impairment. He believed that there was no impairment rating for the neurological symptoms as these were clearly related to the non-work-related neurogenic disorder. Whilst I agree that a large percentage of his neurological conditions in his right upper arm are associated with the CMT1A I believe that the incident on 21 June 2016 did cause an aggravation of his ulnar nerve condition at the elbow. Therefore, I believe that there should be some allowance made for this condition. Taking this into account I believe 15% whole person impairment is more appropriate.The Medical Assessor stated that there was no deductible proportion by reason of any pre-existing injury, condition or abnormality. The appellant submitted that s 323 requires a deduction where a pre-existing condition has been found.
The appellant complained on appeal that the reasons for making no deduction were inadequate and a deduction of one-tenth should have been made once a pre-existing condition was found by the Medical Assessor.
A deduction under s 323 can only be made if a pre-existing condition has contributed to the overall level of permanent impairment assessed. The MAC must be read as a whole. When the MAC is read as a whole, it is abundantly clear that the Medical Assessor has used the uninjured left arm as a baseline on a basis of a finding that both the left and right upper extremities suffer a pre-existing condition. The pre-existing condition has been taken into adequate and proper account by the use of the impairment found in uninjured left upper extremity as the baseline. To make a deduction under s 323 to take further account of the pre-existing condition would effectively be double counting the pre-existing condition of which the Medical Assessor has taken a clear and reasoned account of.
A s 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed. The pre-existing condition has not contributed to the overall level of permanent impairment assessed because of the approach taken by the Medical Assessor in using the contralateral limb (left upper extremity) as the baseline for assessment of the right upper extremity. In these circumstances it was appropriate to make no deduction under s 323 and the Appeal Panel can discern no error in this regard. Accordingly, the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 November 2023 should be confirmed.
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