GPC Asia Pacific Pty Limited v Elkhateeb

DETERMINATION OF APPEAL PANEL
CITATION:	GPC Asia Pacific Pty Limited v Elkhateeb [2022] NSWPICMP 480
APPELLANT:	GPC Asia Pacific Pty Limited
RESPONDENT:	Awatef Elkhateeb
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	24 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Employer alleges error by the Medical Assessor (MA) in failing to make a deduction for a pre-existing condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; MA’s findings that there was no history of any significant condition pre-existing injury inconsistent with both the clinical notes of the worker’s general practitioner and the radiological evidence; Held – Medical Assessment Certificate revoked; on reassessment deduction of 1/10^th in respect of pre-existing condition of cervical and lumbar spines and right shoulder.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 September 2022, GPC Asia Pacific Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 2 August 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 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 Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Awatef Elkhateeb (the respondent) was formerly employed by the appellant as a store person. On 5 July 2018, in the course of her employment she tripped over the tines of a forklift and fell to the ground. It is accepted that the respondent suffered injuries to her back, neck and right shoulder in the fall. She states, however, that it was the pain in her neck and right shoulder which “was causing me the most pain”.
The respondent came under the care of a general practitioner, Dr Myint. When her symptoms did not abate, she was referred to Dr Abraszko, a neurosurgeon, and Dr Nabavi, an orthopaedic surgeon.
On 11 June 2020, Dr Nabavi performed arthroscopic surgery in the form of rotator cuff repair and biceps tenodesis on the respondent’s right shoulder at Liverpool Private Hospital.
Despite extensive conservative treatment post-surgery the respondent continues to suffer discomfort in her neck, back, and right shoulder. She states that following the injury she gained weight and in October 2021, she underwent a gastrectomy at the Waratah Private Hospital.
On 3 June 2021, Dr Eugene Gehr, an orthopaedic surgeon, provided a report to the respondent’s solicitor by which he assessed whole person impairment (WPI) of 30%. This comprised of 5% for the cervical spine, 10% for the lumbar spine, 2% for the activities of daily living (ADLs), 15% for the right upper extremity (shoulder), and 2% for scarring.
Dr Gehr made no deduction for any previous injury or pre-existing condition. Unfortunately, the history he recorded is not before the panel as only a supplementary report by which he assessed WPI has been put into evidence.
On 27 November 2021, Dr Alexander Woo, an orthopaedic surgeon, provided a report to the appellant’s insurer. He recorded that the respondent complained of constant pain in her neck, back, and right shoulder. She gave no history of “any previous injuries”.
Dr Woo diagnosed aggravation of “pre-existing but asymptomatic degenerative changes” in the respondent’s lumbar and cervical spines and right shoulder. He assessed 15% WPI which consisted of 7% for the cervical spine reduced by one-tenth to 6% pursuant to s 323(2); 5% for the lumbar spine after a reduction of one tenth pursuant to s 323(2); and 6% for the right shoulder reduced to 5% after a deduction of one tenth pursuant to s 323(2).
By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). As the difference of opinion between Dr Gehr and Dr Woo gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act, a delegate of the President referred the matter to Dr Anderson for an assessment of the dispute. It is from his assessment that the appellant brings this appeal.

PRELIMINARY REVIEW

The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. As the issue in dispute was whether a deduction should be made for a previous injury or pre-existing condition and, if so, the quantum of the deduction, a further medical examination would not have assisted the panel.
The panel had before it the notes of the respondent’s general practitioner which may contain a more accurate account of the respondent’s pre-injury health than her own recollection. That is not suggest that the respondent is untruthful. Rather, it reflects the fact that the relevant medical history extends back over many years.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.

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 failing to make a s 323 deduction in circumstances where there is documented history of degenerative changes in the assessed body parts.
The appellant argued that the notes of the All Care Carnes Hill Medical Centre recorded that the respondent suffered from shoulder pain in 2015 and 2016, back pain in 2015, and neck pain in 2017 and 2018. It continued:
“Dr Anderson’s conclusion that the respondent’s degenerative pathology was asymptomatic is therefore, respectfully, erroneous. The respondent clearly complained regularly of chronic pain in her neck, back and right shoulder.”
In pressing for a deduction to be made, the appellant relied on the authority of Cole v Wenaline Pty Limited,[1] where Schmidt J had stated that even an asymptomatic prior condition may lead to a deduction if it is established that it contributed to the impairment.
[1] [2010] NSWSC 78 (Wenaline).
The respondent also referred to the reasoning of the Court of Appeal in Vitaz v Westform (NSW) Pty Limited[2] in support of the contention that the MA erred in that he believed that a pre-existing condition needed to be symptomatic before an s 323 deduction could be made.
[2] [2011] NSWCA 254.
By her submissions, the respondent argued that the appeal should be dismissed. She disputed that the MAC contained a demonstrable error. In the alternative, she submitted that, if a one tenth deduction was warranted, the panel should find that:
“the MA erred in applying the 2% WPI modifier for restrictions in daily living to the cervical spine.
The MA should have applied the 2% WP modifier for restrictions in daily living to the lumbar spine, resulting in 12% WPI of the lumbar spine and 5% WPI of the cervical spine (rather than 10% WPI of the lumbar spine and 7% WPI of the cervical spine).”
The respondent submitted that this approach was supported by the fact that on examination she had a verifiable radiculopathy of the lumbar spine and an assessment of DRE III category of impairment. Thus, both the clinical signs and the assessed level of impairment were greater in respect of the lumbar spine than in the cervical spine.
Then, the respondent argued that the MA’s conclusion that she was asymptomatic prior to her traumatic injury was consistent with the medical evidence and with her evidence. The finding was open to the MA and was one for which he had “provided cogent reasons for in the MAC”.
The MA had clearly recognised that the respondent had pre-existing changes in the cervical and lumbar spine “but considered these changes were not significant enough to necessitate the application of a deduction”.
The respondent then summarises the complaints of back, neck and shoulder pain recorded at the All Care Carnes Hill Medical Centre in the 4½ years before the injury. She had complained to her treating doctors of back pain on one occasion only during that period. She submitted that the notes led to a conclusion that the appellant’s submission that she had “complained regularly” was without substance or evidentiary support.
The respondent reiterated its argument that the MA had acknowledged the degenerative changes in the respondent worker’s neck but had “concluded these pre-existing degenerative changes had not contributed to assessable impairment”.
A proper consideration of the clinical notes would lead to the conclusion that there was no basis for the one-tenth deduction argued for by the appellant in respect of the right shoulder. The respondent argued:
“it is apparent the applicant worker made no complaint of right shoulder pain after the clinical entry of 18 February 2018 until her workplace injury on 5 July 2019. It is also apparent that she continued working full-time duties without complaint and following her workplace injury she suffered a rotator cuff injury requiring arthroscopic, rotator cuff repair, and biceps tenodesis surgery on 11 June 2020.”

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[3]. The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
[3] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan[4], 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.
[4] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[5]. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[5] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia partners Pty Ltd v Kocak[6] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[6] [2013] 252 CLR 80.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd[7].
[7] [2014] NSWSC 1344 (26 September 2014).
By the MAC, the MA recorded a brief history of injury and the respondent’s subsequent treatment. In respect of “previous or subsequent accidents, injuries or conditions”, he recorded:
“There is no history of any significant condition associated with her spinal column or right shoulder complex.
For completeness, it was identified that she had a fatty liver. She had also put on a lot of weight. This was managed by bariatric surgery in October 2001. Since then she has lost most of her excess weight.”
In respect of her present symptoms, the MA recorded that:
“The worst issue is pain in her neck with reduced movement. She described that there is numbness in her thumb, index and middle finger of the right hand.”
In his summary of injuries and diagnoses in respect of the incident of July 2019, he stated:
“This resulted in a right-sided rotator cuff injury and jarring injuries to her neck and lower back. The right shoulder has been managed by arthroscopic repair, which has given her improvement although she still has a lot of restricted movement and power. The jarring injuries to her neck and lower back have resulted in musculo-ligamentous strains. There are underlying degenerative changes although these have been asymptomatic in the past. There is nerve root irritation at both spinal levels. This is more severe in the lumbar spine, where radiculopathy is identified.”
In respect of previous injury or pre-existing condition, he said this:
“Although there are pre-existing degenerative changes in the cervical and lumbar spine these were asymptomatic up until the time of the injury. She had previously been doing quite a lot of running, swimming, gardening and gymnasium work. The pre-existing degenerative changes are therefore not considered significant.”
By her statement the respondent states that she suffered an injury to her low back in a previous employment in 2012. She states that she was off work for approximately 12 months but “certified fit to resume pre-injury duties in 2013-2014.” She gives no other history of any other previous injury or pre-existing condition.
The relevant notes of the Carnes Hill Medical Centre commence with an entry of Dr Myint of 8 April 2015 which states:
“left shoulder much better with physio”.
On 18 June 2016, Dr Myint recorded that the respondent’s back pain was “bad”.
On 27 August 2016. Dr Myint recorded the respondent’s right shoulder was sore again following starting work as a cleaner. The note continues:
“R shoulder? tendon injury had ultrasound with me in CHMC had care plan there and see physio
Was seeing physio for right shoulder still doing 3 exercises given by physio only 1 helping.
Action:
Ultrasound report to be left for me.”
The doctor recorded that the respondent should be treated with Voltaren and heat, and physiotherapy “after new care plan”.
On 22 October 2016, Dr Myint recorded that the respondent’s right shoulder was better after she ceased working as a cleaner.
On 17 May 2017, Dr Myint recorded the following:
“2) sometimes feel lump in left neck
stiff
for 3-4 months
has a lot of neck pain
wishes ECP for physio”
On 18 February 2018, Dr Myint recorded that the respondent complained of pain in her joints including her knees, elbows and shoulders. Her impression was that the respondent suffered “degenerative joints due to menopause and nature of work”.
On 18 October 2018, Dr Myint reviewed the respondent’s GPMP. She recorded that:
“neck pain much better now
doing aqua aerobics”
On 6 December 2018, Dr Win recorded that the respondent suffered neck pain after lifting “heavy at work yest”. On examination, she had a limited range of neck movements. She was prescribed exercises, hydrotherapy, and Nurofen.
On 7 July 2019, the respondent reported the subject injury on 5 July to Dr Myint. The doctor recorded that the respondent:
“hurt back immediately and left upper thigh pain immediately afterwards”.
On 2 August 2019, Dr Myint recorded that the respondent felt “much better” after seeing a chiropractor. The note also records the following:
“having pain in right shoulder
when works a lot, feels more pain
the has it since 2015”.
On 13 August 2019, Dr Myint recorded that the respondent was having pain in the neck and shoulder after chiropractic treatment. The note records:
“b) neck pain – not work-related
chronic intermittent
now after back injury at work last month, more pain in neck and numbness down the right arm.”
The above is not a comprehensive review of the clinical notes of the Carnes Hill Medical Centre. It is evident, however, from the note of 27 August 2016 that the respondent had experienced pain in her right shoulder for several months for which she was undergoing physiotherapy treatment. It is also evident from the note of the 2 August 2019, that the respondent continued to have some symptoms in her right shoulder on movement, as that note records that she had experienced shoulder pain “since 2015”.
Similarly, the note of the 17 May 2017 states that the respondent had experienced “a lot of neck pain” for three to four months. This condition became a part of a general practitioners management plan. On 18 October 2018, the respondent reported that her “neck pain was much better”. She was still, however, “doing aqua aerobics”. Dr Myint’s note of 13 August 2019 records that the respondent’s neck condition was “chronic intermittent”, although it had become worse following the injury on 5 July 2019.
Thus, the medical record suggests that the respondent had symptoms in her right shoulder and intermittent pain in her neck in the period prior to the injury. Conversely, it is not evident from the clinical records that the respondent had low back pain in this period. However, it is evident that she had a significant back injury in 2012, which kept her away from work for a period of 12 months. The notes record a past medical history of “back pain-chronic” under the heading “Inactive”, although a note of 18 June 2016 records that the respondent’s back pain was “bad”. As the respondent submits, there is no further entry in respect of back pain prior to the subject injury.
The panel accepts that it was unnecessary for the MA to refer in detail to medical notes or the respondent’s evidence in respect of past history in dealing with the issue raised by s 323. However, in failing to refer to the evidence in respect of the respondent’s pre-existing condition of the back, neck, and right shoulder, the MA arguably erred in law: see Mifsud v Campbell.[8] Certainly, in the absence of some brief consideration of this evidence the panel is unable to understand the actual path of the MA’s reasoning that there was “no history of any significant condition associated with her spinal column or her right shoulder complex.” Thus, his reasoning does not comply with the instruction in Wingfoot.
[8] (1991) 21 NSWLR 725 at [728].

The panel does not accept the respondent’s submission that the MA considered the above evidence and chose not to make a deduction pursuant to s 323. To describe the respondent’s condition as “asymptomatic’ up until the time of the injury is not consistent with the clinical record. If he did, his decision constitutes error as the clinical records in respect of the respondent’s neck and right shoulder make a compelling case for the existence of a symptomatic pre-existing condition which contributed to the level of the respondent’s WPI.
In reassessing whether there should be a deduction for a preexisting condition in respect of the cervical spine, lumbar spine, and right shoulder, it is necessary to bear in mind the extensive case law which has entangled the seemingly simple words of s 323 in a legal thicket. Some of the important cases were brought together by Garling J, in Pereira v Siemens Ltd [9], where he said at [81]:
“The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq) [2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 the at [40].”
[9] 2015] NSWSC 1133 (21 August 2015) (Pereira).
Bearing in mind these principles, and that the appellant bears the onus of proof on the issue, the panel concluded that the worker’s pre-injury complaints of back, neck and right shoulder pain constituted a relevant pre-existing condition. Dr Woo, the respondent’s qualified surgeon, expressed the opinion that the injury to each of the body parts claimed was an aggravation of existing degenerative changes. The panel accepts this characterisation of the respondent’s injuries.
It is evident from the reports of the MRI scans dated 12 July 2019 and 24 March 2020 that the respondent has longstanding multilevel degenerative disease of her lumbar and cervical spine. The MA recognised this in the MAC. It is highly probable that these changes continue to play a significant role in the respondent’s condition. The findings of MRI scan which brought the respondent to arthroscopic surgery may also be explained by degenerative changes.
In the case of her right shoulder and neck the general practitioner’s notes suggest that the applicant was, at least, intermittently symptomatic in these regions in the period prior to the injury. By its submissions, the appellant seeks a reduction of 1/10^thpursuant to s 323(2) of the 1998 Act. In the opinion of the panel, the evidence comfortably establishes that such a deduction should be made from the current impairment assessed by the MA. Both the clinical and radiological evidence establish a significant pre-existing condition. Conversely, the panel is of the opinion that the respondent’s argument that there is an insufficient factual basis for a s 323 deduction is not made out.
Finally, the respondent submits that the MA erred in attributing interference with the respondent’s ADL’s to her cervical spine. She argued that the 2% allocated for ADLs should be added to the lumbar spine as it attracted a higher diagnosis related estimate (DRE) rating. However, in the extracts from the MAC set out above, the MA recorded a clear history that the “worst issue” for the respondent was pain in the neck and associated restriction of movement. In those circumstances, it was open to the MA to attribute the respondent’s inability to perform ADL’s to her neck condition. In the opinion of the panel, the respondent has not established a demonstrable error by the MA.
On reassessment, the panel determines that the respondent’s WPI is 20%. For these reasons, the Appeal Panel has determined that the MAC issued on 2 August 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W3537/22
Applicant:	Awatef Elkhateeb
Respondent:	GPC Asia Pacific Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson 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)
Cervical spine	05/07/19	Ch 4 P 24	P 392 T 15-05	7	1/10^th	6
Lumbar spine	05/07/19	Ch 4 P 24	P 384 T 15-03	10	1/10^th	9
Right upper extremity	05/07/19	Ch 2 P 10	AMA 5 P 476 F1 6-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	8	1/10^th	7
Scarring	P 74 T 14.1	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					20%

[2022] NSWPICMP 480

24 November 2022