Gray v State of New South Wales (Central Coast Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Gray v State of New South Wales (Central Coast Local Health District) [2024] NSWPICMP 327
APPELLANT:	Suzanne Gray
RESPONDENT:	State of New South Wales (Central Coast Local Health District)
APPELLANT:	State of New South Wales (Central Coast Local Health District)
RESPONDENT:	Suzanne Gray
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Henley Harrison
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	24 May 2024
DATE OF AMENDMENT:	27 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment by two Medical Assessors (MA) for orthopaedic injuries, scarring and for hearing loss; worker appealed regarding assessment of, and section 323 deduction for, hearing loss and regarding assessment of knee injury; employer appealed regarding lack of section 323 deduction for cervical spine; no error in primary assessment of hearing loss but MA was in error to make a deduction based on documents concerning another person; no error in assessment of knee injury on the day; Cole v Wenaline Pty Ltd referred to; no error in declining to make section 323 deduction regarding cervical spine; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

Suzanne Gray suffered an injury on 3 November 2019 at Gosford Hospital when she fell in the course of her employment by the State of New South Wales (the State). The parties agreed that the fall resulted in injuries to her right shoulder, neck and left knee. Ms Gray also suffered a fractured nose and lacerations to her face, which have resulted in scarring. She suffered hearing loss and tinnitus.
Ms Gray’s claim for permanent impairment compensation was referred to two Medical Assessors. Dr Tommasino Mastroianni, occupational physician, was appointed lead assessor and to assess Ms Gray’s right upper extremity, left lower extremity, cervical spine and scarring. Dr Paul Niall was appointed to assess her ears, nose and throat and related structures.
The date of injury was described in the referral document and the subsequent documents as being a deemed date.
The Medical Assessment Certificate (MAC) was issued on 7 February 2024.
On 4 March 2024 Ms Gray lodged two Applications to Appeal Against the Decision of a Medical Assessor, one against the determination of each Medical Assessor. On 6 March 2024 the State lodged an appeal against the assessment by Medical Assessor Mastroianni.
Ms Gray and the State both rely on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out in respect of each appeal and referred all three appeals to us. We conducted a review of the original medical assessment, limited to the grounds on which the appeals are made.
Rule 128 of 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 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Medical Assessor Mastroianni assessed 7% whole person impairment (WPI) in respect of Ms Gray's right upper extremity, 0% in respect of her left lower extremity, 7% in respect of her cervical spine and 5% in respect of scarring. He did not make any deduction under s 323.
Medical Assessor Niall assessed 8% WPI and deducted 2% under s 323, leaving an assessment of 6% for hearing loss. Those assessments combine to 23% WPI.
No appeal was raised with respect to Medical Assessor Mastroianni’s assessments for Ms Gray’s right upper extremity and for scarring.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Ms Gray to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by before that medical assessment.
Ms Gray seeks to admit two reports extracted from the notes of her general practitioner which had been relied on by Medical Assessor Niall. The new copies have endorsements from the practice manager stating that the documents were included in Ms Gray’s notes in error. The documents refer to Susan Gray rather than Suzanne Gray.
Medical Assessor Niall had relied on the documents, despite Ms Gray saying that she had never lived at the address listed on them. The State made no submissions about them, other than to observe that the documents formed part of the bundle provided to it by Ms Gray’s general practitioner. For reasons discussed below, Medical Assessor Niall’s reliance on the documents was a demonstrable error, even without the endorsements from the practice manager. The endorsed documents should be admitted for completeness.
Ms Gray also sought to rely on the report of an MRI scan of her left knee dated 17 November 2023. The extent of the submissions about the report is that it was “unavailable to the Appellant at the time of the originating Application”.
The report is addressed to a general practitioner Dr Lee and clearly post-dates the filling of the Application to Resolve a Dispute (ARD) on 11 October 2023. The report is not addressed to Dr van Rooy, whom Ms Gray said was her general practitioner when she signed her statement on the day the ARD was filed. The clinical history was pain on prolonged walking without reference to the injury, thus not alerting the radiologist to consider the age of the tear.
The report predates the examination by Medical Assessor Mastroianni on 22 November 2023. No submissions were made as to when or why it was requested. In particular, Ms Gray did not explain why she did not take the scans and the report to the examination by Medical Assessor Mastroianni, thus not making any submissions as to why it could not reasonably have been obtained before the medical assessment.
The State opposed reliance on the MRI scan report and said it “does not provide the MA with any further change in the Appellant’s presentation.”
In the absence of detailed submissions going to both limbs of s 328(3) and supporting the admission of the document, we do not consider that it is appropriate to receive the report on the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessors for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to each ground of appeal are set out below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them. Each party made one set of submissions in respect of both of Ms Gray’s appeals.
In summary (and in M1-W7604/23), Ms Gray submitted that Medical Assessor Niall made a demonstrable error in making a deduction under s 323 of the 1998 Act from his assessment of hearing loss in reliance on the reports of Dr Szasz in 1990. She said that he did not refer to reports of other medical examiners nor explain how he came to a WPI assessment so much lower than those they made.
In reply, and in respect of Medical Assessor Niall’s assessment, the State quoted a series of authorities about the operation of s 323 generally. It said that Medical Assessor Niall applied s 323 in the manner described in Cole v Wenaline Pty Ltd[1] and that it was for the Medical Assessor to determine what weight to give the documents before him. It said that Medical Assessor Niall’s assessment was correct.
[1] [2010] NSWCA 78.
M2-W7604/23 is Ms Gray’s appeal against Medical Assessor Mastroianni’s assessment of her left lower extremity of 0% WPI. She referred to the MRI scan and to Dr Bodel’s assessment and said that Medical Assessor Mastroianni did not explain why his opinion differed. She said:[2]
“It is also submitted that where a LMA is required to resolve complex and contradictory evidence presented by each side, the mere recitation of the evidence and reference to it without entering into the issues and providing an explanation as to why his opinion is preferred over other’s is arguably a miscarriage of the LMA’s function.”
[2]Referring to the Lead Medical Assessor as LMA.
The State submitted that the assessment of Ms Gray’s left lower extremity was correct.
M3-W7604/23 is the State’s appeal against Medical Assessor Mastroianni’s assessment on the basis that he did not make a deduction under s 323 of the 1998 Act in respect of Ms Gray’s neck. The State cited entries from the notes of Ms Gray’s general practitioner dating back to 19 August 2016 and said that a pre-existing cervical spine condition and impact on Ms Gray’s condition before the injury warranted a deduction. The State said that a deduction of one-tenth would be at odds with the evidence, though did not identify the deduction said to be appropriate.
In reply, Ms Gray submitted that it was open to the Medical Assessor not to make a deduction under s 323 and that a difference of opinion between Dr Hyde-Page, who examined Ms Gray at the request of the State, and Dr Bodel, who examined her at the request of her solicitors, was not a demonstrable error.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3][2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[4] the Court of Appeal held that an 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.

Some general principles

The role of a Medical Assessor is to determine the medical dispute referred, which will usually require an examination. The Medical Assessor is an administrative decision maker charged with making an assessment of permanent impairment which is binding.[5] The assessment is made as the worker presents on the day of the examination,[6] not by reference to the observations of other practitioners at other times. The Guidelines provide that the Medical Assessor must apply his or her own clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing conditions.[7]
[5] 1998 Act s 326.
[6] Guidelines paragraph 1.6.
[7] Guidelines paragraph 1.6b.
That means that the Medical Assessor is not required to adopt or choose between the other opinions in the file and is required to form his or her own opinion. In State of New South Wales (NSW Department of Education) v Kaur[8] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular, it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[8] [2016] NSWSC 346.
The Medical Assessor is directed by the standard MAC template to comment on the other opinions of other examiners and provide the reasons why his or her opinion differs. That is so the parties understand how and why the assessment may differ, not because the Medical Assessor is required to choose between them. The submission made on behalf of Ms Gray and set out at [28] above is not an accurate description of the role of a Medical Assessor.
We deal with each of the three appeals below in numerical order.

Hearing loss (M1-W7604/23)

Medical Assessor Niall took the following history:
“Sudden onset of hearing difficulty after a fall injury – conversation, tv, speech, understanding in noise is affected. For 4 years she has had mainly left continuous, ringing tinnitus. It was said to be most annoying at times of stress and at night. Sleep induction is affected.
Facial injury. In the fall at work, she sustained a very significant laceration to her forehead. She was admitted to hospital and repair was undertaken.
Retrograde amnesia – almost zero.
Anterograde amnesia – several hours before reliable memory returned.
On 17/10/2019 shortly before the fall on 03/11/2019, Dr K. Kong reported nasal obstruction. Right septum deviation with left external nasal elevation. Dr Van Roy on 28/08/2019 reported self booking for nasal surgery and operation in March 2020.
She developed very distressing tinnitus within a few days of the injury. Post injury imaging: Skull X-ray, CT scan; No fracture of temporal bones found.”
Medical Assessor Niall noted that Ms Gray had been fitted with hearing aids which she used with benefit. He said that there was no history of, among other things, middle ear infection or other relevant serious medical conditions. He said:
“Past history: Dr Szazs 15/08/1990; right meatoplasty/tympanoplasty, right cholesteatoma [260 Dora Street]. Ms Gray denies this part of the provided history. She stated she has never lived in Dora Creek including Dora Street.”
He observed that Ms Gray’s tympanic membrane was intact on the left.
With respect to her hearing, Medical Assessor Niall said:
“Hearing: Pure-tone audiometry was characterised by air and bone conduction responses in a range between 60 and 70 dBHL at all tested frequencies. These responses varied from many of the responses reported in the PIC referred documents. The responses were not consistent with the voice level testing conducted in this examination. Repetitive ascending-descending testing revealed bilateral incompatibility of approximately 25 dB corresponding in physical intensity terms of 300 times”.
Medical Assessor Niall requested that Cortical Evoked Response Audiometry (CERA) be undertaken. With respect to consistency of presentation, he said:
“Inconsistent. She was referred for Cortical Evoked response Audiometry [sic] performed on 08/01/2024. The results after the usual 10dB adjustment to the equivalent behavioural data are tabulated below.”
Providing his comments on other reports in the file, Medical Assessor Niall repeated the statement we have set out at [42] and added:
“The degree to which the hearing loss in the right ear exceeds that in the left ear is due to previous middle ear disease as described above.”
Medical Assessor Niall assessed 11.6% binaural hearing loss (BHL), including the results at all frequencies from 500 Hz to 4,000 Hz in his assessment. He deducted 3.2% in respect of pre-existing loss and assessed 4% for severe tinnitus, resulting in 12.4% binaural hearing loss or 6% WPI. He also expressed the calculation as 8% WPI less 2%, resulting in 6% WPI.

Other medical evidence

Ms Gray has undergone audiological testing on several occasions with markedly different results.
On 7 April 2020 Ms Gray’s general practitioner referred her to Dr Williams. Ms Gray saw Dr Williams on 23 June 2020 and reported to her general practitioner:
“Just to let you know she gave a history of hearing loss and bothersome tinnitus after an accident at work associated with a head injury and loss of consciousness. Examination showed a lot of earwax which I removed under the ear microscope. Both tympanic membranes are intact with no otitis media. There is no sign of a fractured temporal bone on physical examination. Audiometry shows a moderate bilateral sensorineural hearing loss. On the numerical rating scale she rated her tinnitus as 10/10 because it interferes with her concentration and sleep. She said she only gets 3-4 hours of sleep per night because of her tinnitus.
She gave no history of pre-existing hearing loss or tinnitus. I have recommended CT scan Brain and Temporal Bones and several blood tests for which I will seek the insurer's approval.
I have a course of treat for tinnitus (binaural combination devices of hearing aids/sound generators and retraining if the insurer gives approval.”
Ms Gray’s solicitors qualified Dr Fagan, who reported on 22 July 2022. He conducted an audiogram which revealed a major hearing loss in either ear and:
“Frequencies range from 65 dB to 80 dB.
Speech discrimination at 90 DB was 71% in the right ear and at 95 DB, 78% in the left.
PRELIMINARY OPINION
I have compared today's audiogram with that carried out by my colleague Dr Brian Williams on 23 June 2020. The thresholds that he obtained varied between 40 and 50 dB across the chart.
There are only 2 possibilities. Either Ms Gray has suffered a precipitous loss of hearing which is probably secondary to the incident described or the audiograms do not represent the true state of her hearing.
During the consultation with Ms Gray, I came to the opinion that she was both honest and factual so that I believe that the former diagnosis is the correct.”

Ms Gray’s solicitors also qualified Dr Payten who reported on 20 December 2022. He performed an audiogram and said that responses were repeatable on ascending and descending threshold measures. He assessed 45.4% BHL and allowed 4% for severe tinnitus, resulting in an assessment of 40.4% which converts to 25% WPI. Comparing his audiogram with those of Drs Williams and Fagan, Dr Payten said:
“I note that the audiogram done by Dr Brian Williams on 23 June 2020 showed that Ms Gray gave better responses during audiometric testing than she gave to me today. According to the NAL Tables of 1988, I calculate that she had a 34.6% binaural hearing loss when tested by Dr Williams. This compares with the 45.4% binaural hearing loss when tested by me today. It also compares with my calculation of an 82.8% binaural hearing loss when tested by Dr Paul Fagan on 22 July 2022.
This variation in audiometric test results is probably because her tinnitus is very much louder on some days than others and this interferes with her ability to respond to test tones that she is exposed to while doing the audiogram. There has been no factor in the history which could have caused an increased hearing loss since soon after the time of the accident and if any deterioration in hearing has occurred since she was first tested by Dr Brian Williams, such deterioration is not the result of the accident.
Ms Gray feels that her hearing has become worse in the last year and she mentioned that she thinks that is because of the increased loudness of her tinnitus. This increased loudness of her tinnitus is probably as a result of the accident as the perception of the loudness of tinnitus depends not only on the cochlear damage done but also on the response by the brain to the tinnitus, including the emotional response, and this can become worse in time.”
Dr Raj saw Ms Gray at the request of the State’s solicitors and reported on 30 May 2023. He recorded that her tympanic membranes and ear canals were normal on clinical examination. He said:
“ii.     A competent audiologist recorded an audiogram in a soundproof room on a calibrated audiometer. She has severe bilateral deafness.
iii.      It was noted that her hearing test today differed from her previous hearing tests. She mentioned that tinnitus affected her responses. Today was a bad day, she was particularly anxious, and the tinnitus was very loud, resulting in worse threshold readings.
iv.      The two audiograms, in brief, show losses between 40-50dB in all the frequencies, which is probably a true representation of hearing thresholds.
v.      The audiogram is appended below, but a better audiogram in the brief is used for the assessment.”
Dr Raj appended his audiogram which generally showed losses in the range of 80 to 100 dB, similar to those observed by Dr Fagan. He relied on Dr Payten’s audiogram to make his assessment.
That review of the evidence shows that Ms Gray’s responses to testing have varied remarkably on the different occasions when she was tested. Dr Payten made the comparison calculations from the audiograms, with which we agree. The loss recorded by Dr Fagan was very severe but those recorded before and after that test by Dr Williams and Dr Payten more moderate. Dr Raj’s audiogram showed such severe losses that he did not consider he could accept the result. He observed that the responses are affected by tinnitus.
Dr Niall arranged for Ms Gray to undergo CERA, a hearing test where the results are not dependent on patient reporting as they are in standard audiometry. There is no suggestion in the file that Ms Gray had previously undergone that testing. Dr Niall based his assessment on the outcome of the CERA.
The Medical Assessor’s assessment of the amount of hearing loss suffered by Ms Gray was open to him. CERA was warranted when the results from standard audiometry were so varied and because of Dr Niall’s observation that the results he obtained were inconsistent. No ground of appeal was raised with respect to the methodology Dr Niall used.
Dr Payten was correct to observe that the variation cannot be explained by deterioration given the traumatic causation of Ms Gray’s hearing loss.
The Medical Assessor’s assessment of the amount of hearing loss suffered by Ms Gray at 8% WPI on the basis of CERA was open to him.

Section 323 deduction

The general practitioner’s file contains a report from Dr Szasz dated 15 August 1990 and a report from Dr Best dated18 October 1990. We accept that these reports do not relate to Ms Gray. It is unfortunate that the notes attached to the Reply had not been carefully reviewed and the relevance of the reports considered by the parties before the file was referred to the Medical Assessors.
The reports describe surgery to the right ear of a patient called Susan Gray. Dr Szasz said that he had seen the patient before the current referral and carried out meatoplasty and excision of total stenosis of the right auditory canal. At a recent operation he found:
“…a large perforation of the tympanic membrane on the right side which I grafted with temporal fascia. I also found a retention pocket of cholesteatoma in the posterior attic region which I opened into her previously formed mastoid cavity.”
The report from Dr Best noted that the patient did not wish to undergo hydrotherapy because “she has had two further operations to her ears, but there is still a hole in the eardrum.”
The surgery undertaken in 1990 was very significant. That surgery and the earlier operation referred to by Dr Szasz would have resulted in scarring and changes to the anatomy of the subject’s ear which was visible to the Medical Assessor on examination.
Medical Assessor Niall did not observe any visible abnormality. He said that Ms Gray told him that the reports were not about her and that she had never lived at the address or in the town nominated. Despite that, he made a deduction under s 323.
As our review of the medical evidence shows, no other doctor observed the significant scarring that would have resulted from the surgery undertaken. Even though Medical Assessor Niall said that the right tympanic membrane was largely obscured by wax. Dr Williams removed a build-up of wax at his first examination and found the tympanic membranes intact.
We do not consider that a s 323 deduction was warranted. The Medical Assessor made a demonstrable error in relying on the reports in the file to make the deduction.
The assessment of 8% WPI as a result of hearing loss will be combined with the assessments from the other injuries.

Left lower extremity (M2-W7604/23)

As noted above, there is no appeal with respect to Medical Assessor Mastroianni’s assessment of Ms Gray’s right shoulder and scarring.
Medical Assessor Mastroianni recorded that Ms Gray saw an exercise physiologist and her knee injury was treated with exercises. She told him that the knee had troubled her “since day one” and she has pain in the infrapatellar region. Medical Assessor Mastroianni said:
“Examination of the left knee reveals no deformity. There was no effusion. There was no tenderness in the joint lines. There was clunking in the left patella with discomfort, and patellofemoral compression was not painful.
The knee extends normally and flexes to 130°. This equates to 0% WPI.”
Medical Assessor Mastroianni did not see any X-rays and said that the only relevant reports in the file were of Ms Gray’s right shoulder and of her wrists and hands.
When explaining his assessment, Medical Assessor Mastroianni said:
“In the left knee I found normal flexion and extension to 130° and 0°, which equates with 0% WPI(3) (see 10b).”
At paragraph 10b of the MAC, he referred to Table 17-10 of AMA 5.
Medical Assessor Mastroianni contrasted his finding of normal knee movements with that of Dr Bodel who found restricted movements. His assessment was the same as that of Dr Hyde-Page, who saw Ms Gray on behalf of the State.
Medical Assessor Mastroianni was required by the Guidelines to assess Ms Gray on the day of the examination. He used the appropriate method of assessment of the range of motion and observed a normal range of her left knee. He explained how his assessment differed from that of Dr Bodel.

Medical evidence

Our review of the file shows that Ms Gray has not had specialist treatment for her left knee injury. There is no reference to her knee in the discharge summary from Gosford Hospital, the focus of her treatment being surgery for the laceration to her head.
In late 2020 Ms Gray was referred to an exercise physiologist to assist with work conditioning generally. Her general practitioner, Dr van Rooy, recorded some complaints after that time.
In January 2021 Ms Gray reported intermittent pain in her knee with exercise and Dr van Rooy suggested she wear a knee guard. On 12 April 2021 Dr van Rooy noted that Ms Gray’s knee was still sore intermittently and “pt now agreeable to xray”.
The X-ray report dated 22 May 2021 reads:
“The tibiofemoral joint space is reasonably well preserved.calcinosis is a feature. Minimal spiking of the tibiaI spine is evident. The patella is enlocated. The patellofemoral joint space is well preserved.
There is evidence of a very small amount of fluid in the supra patellar bursa. No loose bodies can be identified.”
Chondrocalcinosis is an excessive accumulation of calcium crystals in cartilage. It is essentially a degenerative process. It does not result in impairment.
On 7 June 2021 Dr van Rooy discussed the X-ray report and recorded “may use Nurofen prn”.
In October 2021 Ms Gray saw Dr Kemp, orthopaedic surgeon, about her right shoulder. He did not mention her left knee in his report dated 18 October 2021.
In his report dated 10 October 2022 Dr Bodel recorded that Ms Gray’s knee gave way and that she had a sense of instability. He recorded a slightly reduced range of motion and set out his reading of the X-ray dated 19 May 2021:
“A plain x-ray of the left knee shows chondrocalcinosis in both menisci. This is an incidental finding but it may also be associated with a tear of the meniscus which has not been verified by a plain xray.”
Dr Bodel said:
“The only other rating is the knee on the left hand side and the -5 degrees of knee extension attracts a 4% Whole Person Impairment in accordance with Table 17-10 on Page 537.”
Dr Hyde Page reported for the State on 9 March 2023. He recorded that Ms Gray had soft tissue bruising at the time of the fall. He said:
“She still gets some pain around the front of her right [sic] knee and on occasions, the knee can give way. She avoids a lot of walking because of the knee symptoms.”
He clearly understood that the injury was to Ms Gray’s left knee because he said:
“On examining her lower limbs, she had no muscle wasting of her left thigh compared to the right. She had no patellofemoral crepitus or discomfort, and no swelling or tenderness in the left knee joint. She had a full range of movement, 0° to 130° flexion. The ligaments were all intact and alignment was normal. The right knee and lower limb were normal. The left ankle and foot were normal.”
Dr Hyde Page said that the X-ray in May 2021 was normal except for some chondrocalcinosis. He said that Ms Gray’s left knee examination was normal and did not assess permanent impairment resulting from that injury.

Consideration

The assessment by the Medical Assessor was open to him. It was consistent with the medical evidence in the file, with the exception of Dr Bodel’s report. It is consistent with the very limited treatment undertaken.
Dr Bodel speculated that the X-ray may not have shown a meniscal tear but his opinion is speculative in the absence of other radiology. It does not necessarily follow that any tear observed now was a result of the injury.
Medical Assessor Mastroianni observed a normal range of motion and Table 17-10 of AMA 5 dictates that there be no assessment of permanent impairment.
We observe that even if there was evidence to shown that a meniscal tear did result from the injury, the diagnosis based estimates in section 17.2j of AMA 5 and Table 17-33 only permit an assessment of permanent impairment if there has been surgery in the form of a partial or total meniscectomy.
There is no demonstrable error or application of incorrect criteria in the Medical Assessor’s assessment of Ms Gray’s left knee.

Cervical spine (M3-W7064/23)

Medical Assessor Mastroianni did not obtain a history of any previous injury to Ms Gray’s neck. Describing his examination he said:
“Examination of the neck reveals normal spinal curve. There is no muscle guarding. There was discomfort over the left trapezium. She is tender over the C3/4 spinous process and the left side of the neck but not the right.
Neck flexion was minimally restricted whilst extension was normal. Tilt was restricted to one-third (right equals left), and rotation was three-quarters normal on the left and two-thirds to the right. She complains of pain at the end of range of movement, more so with rotation.
Neurology of the upper limbs was normal.”
He gave reasons for his assessment:
“In the cervical spine I found tenderness and asymmetric loss of range of movement. The claimant falls into DRE Cervical Category II⁽⁴⁾ (see 10b). ADLs are affected. She has difficulty with domestic work and recreational activities but is independent in self-care. DRE II of the cervical spine is 5 – 8% WPI. I assess 2% WPI for ADLs. I therefore 7% WPI for the cervical spine.
In my opinion no deduction is applicable for pre-existing condition.”
Commenting on the other medical reports, Medical Assessor Mastroianni noted that his assessment was the same as that of Dr Bodel and differed from that of Dr Hyde Page.
Dr Hyde Page recorded:
“Her general health is very good, and she gives no history of any significant injury or complaint before the work injury. In 2005, she had a neck strain treated with some physiotherapy and a few weeks off work but made a full recovery. She was told she had a soft tissue injury and an xray showed nothing in particular. She had never had any further trouble with her neck up until the injury in November 2019.”
On examination he found mild symmetrical stiffness in the cervical spine and assessed Ms Gray in DRE cervical category 1.

Medical evidence in the file

The State identified a number of documents in the general practitioner’s notes which it said showed that Ms Gray suffered problems with her neck and that she suffered osteopenia before the date of the injury. Osteopenia is a diagnosis of reduced bone mineral density, which is not as severe as osteoporosis. The diagnosis of osteopenia can be put to one side because it does not necessarily result in impairment of the cervical spine.
We note that the referral to the Medical Assessors and the MAC both note the date of injury as a deemed date, even though she did not rely on a series of incidents. Neither party objected to the referral in that form. On one view, it would not be appropriate for the Medical Assessor to make a deduction because all of the entries relied on post-date Ms Gray’s commencement with Gosford Hospital in 2004.
In any event, the documents relied on do not mandate a deduction when considered in light of the authorities.
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
In Cole v Wenaline Pty Ltd[9] Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[10]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”
[9] [2010] NSWSC 78 at [29] and [38].
[10] [2015] NSWSC 526 at [29]-[30].
We note that Schmidt J made those statements where the pre-existing condition being considered was previous surgery to Mr Cole’s lumbar spine.
In Ryder v Sundance Bakehouse[11] (Ryder) Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[11] At [45].
Neither of the independent medical examiners commented on the reports in the Reply. Ms Gray denied previous problems with her neck.
The page numbers in the State’s submissions do not correspond to the Reply document.
On 20 January 2012 Ms Gray saw Dr Youn at her general practitioners’ surgery with neck pain after studying on a computer. Dr Youn referred her to physiotherapy. On 21 February Dr Peterson noted that Ms Gray’s neck pain continued, and that the physiotherapist had queried whether she had a disc problem.
Dr Ireland saw Ms Gray when she presented on 29 February 2012 with a “really sore neck.” On 29 February 2012 Dr Ireland noted improvement but recommended a CT scan. By 15 March 2012 the pain was significantly reduced but Dr Ireland referred Ms Gray to Dr Crimmins. On 22 March 2012 Dr Ireland noted that Ms Gray had suffered an injury at work on 24 August 2011. His diagnosis was cervical neck dysfunction secondary to work and said that a CT scan showed bulging from C2 to C6 with C5/6 herniation abutting the cord.
Dr Crimmins reported on 19 April 2012, setting out a history of a work injury. He said that the CT scan showed degenerative changes but little else. He said:
“Certainly there is quite marked paracervical neck spasm occurring. In most cases this does reflect an underlying neck injury and certainly looking at her history there was nothing to suggest there were neck problems prior to her injury in August 2011. At the time she was twisting at a funny angle, lifting weights of a moderate degree. Therefore one could see that the neck pathology we are seeing does reflect this injury that she occurred while working as a PSA at Gosford Hospital.
She has had a CT scan which shows some mild degenerative changes. What I have suggested is that we organise for her now to have an MRI scan of the neck as well as some simple neurophysiology of both arms.”

There is nothing in the file to suggest that the MRI scan was undertaken, and the general practitioners’ notes do not refer to Ms Gray’s neck again until 2016.
The description of treatment in 2012 is consistent with the history Dr Hyde Page had of an incident in 2005.
On 9 August 2016 Ms Gray was referred for a CT scan. Dr van Rooy’s note for the same day recorded:
“…exacerbation of neck pains in last 8 weeks, not sure of cause but is continuing with reg work of cleaning which is heavy duty work physically
seen by acupuncturist twice and pains in back occurred and then neck pains returned
previous h/o neck problems in 2012 - initiallly w.c. but declined thus now managing generally with Panadol and nurofen
discussed use of heat pack and linaments with exercises
consider ref to Dr Schwarzer but likely to need CT scan first.”
Dr Schwarzer reported on 13 March 2017. He noted an onset of pain at work and a claim for compensation, but that Ms Gray remained at work and that physiotherapy had exacerbated the pain. He said that “imaging showed non-specific degenerative changes.” Ms Gray reported right mid to upper cervical pain and some stiffness. Dr Schawrzer noted the results of the CT scan and said that the pain may be arising from the intervertebral joints or zygapophysial joints. He recommended physiotherapy and guided injections of the zygapophysial joints.
There is no information in the file to suggest that the injections were administered and no further reports from Dr Schwarzer. There is no further reference to neck pain in the general practitioners’ notes.
Ideally, Medical Assessor Mastroianni would have commented on these documents. However, they do not require that a s 323 deduction be made. They show that on two occasions Ms Gray complained of pain in her neck, underwent a CT scan and was referred to a specialist. Each specialist recommended investigation and treatment but it appears that the follow up never occurred and Ms Gray ceased to complain of problems with her neck.
The reports of the CT scans, when interpreted by Dr Schwarzer and Dr Crimmins were that they showed mild degenerative changes consistent with “nothing in particular” described by Ms Gray to Dr Hyde Page. It cannot be said that there would a difference in the outcome in terms of impairment, as described in Ryder, because of the pre-existing condition of Ms Gray’s neck. The documents do not mandate a s 323 deduction and, based on the lack of follow up and treatment after earlier neck pain, we do not consider that a deduction is warranted.

Conclusion

For these reasons, we have determined that the MAC issued on 7 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
The assessments made by Medical Assessor Mastroianni stand and are to be combined with 8% WPI in respect of hearing loss to reach 24% WPI.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7604/23
Applicant:	Suzanne Gray
Respondent:	State of New South Wales (Central Coast Local Health District)

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 Medical Assessor Tommasino Mastroianni 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 NSW Workers Compensation Guidelines	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)
Right upper extremity	3.11.19	Chapter 2, pp 10-12	Chapter 16, pp 433-521	7%	0	7%
Left lower extremity	3.11.19	Chapter 3, pp13-23	Chapter 17, pp 523-564	0%	N/A	0%
Cervical spine	3.11.19	Chapter 4, pp 24-29	Chapter 15, p 392, Table 15-5	7%	Nil	7%
Scarring	3.11.19	Chapter 14, pp 73-74	5%	Nil	5%
Hearing loss	3.11.19	Chapter 9, pp-43-52	8%	Nil	8%
Total % WPI (the Combined Table values of all sub-totals					24%

[2024] NSWPICMP 327

24 May 2024