Greco v Co.As.It Italian Association of Assistance
[2024] NSWPICMP 85
•21 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Greco v Co.As.It Italian Association of Assistance [2024] NSWPICMP 85 |
| APPELLANT: | Stefano Greco |
| RESPONDENT: | Co.As.It Italian Association of Assistance |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 21 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury and assessment of activities of daily living in respect of personal care; section 323 deduction; Cole v Wenaline Pty Limited, Ryder v Sundance Bakehouse, and Vitaz v Westform (New South Wales) Pty Limited considered; Held – Medical Assessor’s deductions were excessive; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 November 2023 Stefano Greco lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 October 2023.
Mr Greco relies on the following grounds of appeal under s 327(3) 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 delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is 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, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Greco was employed by Co.As.It Italian Association of Assistance (Co.As.It) as a caregiver when he fell on a wet floor on 25 March 2019. He suffered immediate onset of pain in his right wrist, right groin, right hip anterior and posterior pain, lumbar back pain and right ankle pain. On 30 May 2019 he underwent surgery for a right inguinal hernia. On 12 February 2023 Mr Greco fell at home as a result of the onset of sharp hip pain.
The Medical Assessor was asked to assess Mr Greco’s lumbar spine, right upper extremity and right lower extremity. He assessed 7% whole person impairment (WPI) respect of Mr Greco’s lumbar spine, 5% for the right upper extremity and 4% for the right lower extremity. He deducted one half of the assessment of the lumbar spine and one quarter of the assessment of the right lower extremity under s 323 of the 1998 Act, resulting in 12% WPI.
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 Mr Greco to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Greco submitted that the Medical Assessor did not assess him in accordance with “the Guides” that he “failed to reconcile his own findings with respect to his conclusions”, that he did not adequately set out or explain his findings and did not adequately expose his reasoning. The submissions refer to medical evidence which does not appear in the file and cite the wrong Medical Assessor and date of examination, suggesting that they have been copied and pasted from another file.
The substantive submissions are that the Medical Assessor applied incorrect criteria in allowing only 2% for the impact of the injury on activities of daily living, that the s 323 deductions were excessive and that he did not set out the path of his reasoning.
Mr Greco submitted that paragraph 4.35 of the Guidelines does not require the worker to be unable to undertake personal care activities to qualify for a 3% increase in the base assessment, merely that his ability to undertake those tasks has been affected. Mr Greco said that the Medical Assessor applied a test of incapacity to perform those tasks. He said that the disabilities described in his statement are “transferrable to the workers affected ability to undertake his dressing, showering and shaving” because his back pain increases and immobilises him so that it can be inferred that his ability to move in order to dress himself would be impeded.
With respect to s 323, Mr Greco submitted that Vitaz v Westform (New South Wales) Pty Limited[1] (Vitaz) stood for the proposition that there should be no s 323 deduction if there were no symptoms from a pre-existing condition before a work injury. He said that there was no reference to lower back pain in his general practitioner’s notes in 2016 and no reference to the severity of pain, restrictions caused by it or treatment. A reference to back pain in 2018 was said to relate to a confined period and was mild. Mr Greco said that the Medical Assessor did not review radiology before 2021 and that there was no basis for a deduction of 50%. He noted that Dr Porteous (who did prepare a report on his behalf) made a one-tenth deduction and said that was appropriate.
[1] [2011] NSWCA 254.
With respect to the right hip, Mr Greco said that the Medical Assessor conceded there were no pre-existing symptoms. He noted that the Medical Assessor said that a fall such as Mr Greco suffered was unlikely to alter the underlying pathology and submitted that this was an opinion on causation, which was not for him to decide. He said that it was plausible that the changes observed on the scans were a result of acceleration caused by the injury. He said that the deduction should be no more than one-tenth.
In reply, Co.As.It submitted that Mr Greco’s submissions with respect to the activities of daily living did not have regard to paragraph 4.34 of the Guidelines, which provided that a loading is only added if there was a difference in activity level compared to the worker’s status before the injury. It noted that it is only the lumbar spine, attracts the allowance and that the Medical Assessor had taken an appropriate history. It noted that Mr Greco’s statement was silent as to the impact of the injury on personal care and stressed the ongoing issues in respect of his right wrist and hip.
Turning to the s 323 deduction, Co.As.It submitted that it was open to the Medical Assessor to make a diagnosis and make his own assessment of WPI resulting from the injury. It submitted that there was no error in the s 323 deductions.
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,[2] 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.
[2] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[3] 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.
[3] [2006] NSWCA 284.
Lumbar spine
The Medical Assessor said:
“Mr Greco was asked about his lumbar spine. He had pain immediately after the fall. Mr Greco stated he underwent physiotherapy every week. He had no steroid injection or surgery. He stated that he did not see a Specialist for his lower back.
…
Mr Greco rated the lumbar spine pain as a six on a scale of zero (no pain) to ten (the worst pain imaginable) and fluctuates to a nine randomly. He pointed to the lower back and down the right buttock region.”
Setting out Mr Greco’s activities of daily living the Medical Assessor said:
“Mr Greco is able to shower and dress. Mr Greco can use the Dyson vacuum and is unable to do the heavier work. Mr Greco has no lawn to mow. Mr Greco drives a car but can drive at most thirty minutes. Mr Greco used to play volleyball and run and is no longer participating in these activities since the injury.”
Describing his examination of Mr Greco’s back the Medical Assessor said:
“There was a fraction of normal active thoracic motion of ½ full flexion, ¼ full extension, ½ full left rotation and ½ full right rotation. There was a fraction of normal active lumbar motion of ½ full flexion, . ¼ full extension, ¾ full left lateral flexion and ½ full right lateral flexion. There was positive asymmetrical loss of motion.
There was normal alignment, curvature, and pelvic symmetry. There was positive reported tenderness to palpation along the spine or paraspinal muscles. There was no observed muscle guarding or spasm.”
The Medical Assessor summarised the report of a CT scan dated 19 March 2021:
“Severe degenerative change of the L4/5 disc. Significant degenerative change of the left L5/S1 facet joint. No evidence of nerve root compromise in the lumbar spine.”
He summarised the report of an MRI scan dated 16 August 2022:
“Severe degenerative changes at L4/5, with complete loss of intervertebral disc space height. Moderate to severe left L5/S1 facet joint arthrosis. Multilevel disc bulges, without significant central canal stenosis or evidence of nerve root impingement.”
The Medical Assessor diagnosed a lumbar strain, soft tissue injury, the aggravation of a pre-existing condition. He explained his calculations:
“Table 15-3 p 384 AMA5 is used. A DRE II applies as there was positive asymmetrical loss of motion with no radicular signs and symptoms. Thus a 5-8% WPI applies. Section 4.35 p 28 the Guides is used to assess ADLs. Mr Greco indicated that he was able to self care. His ability to perform duties and recreational activities have been affected. Thus a 2% loading applies resulted in a 7% WPI.”
Explaining his s 323 deduction the Medical Assessor said:
“The following factors apply when considered the deductible proportion:
•Pre-existing conditions: An MRI of the lumbar spine 16 August 2022 revealed severe degenerative changes at L4/5 with complete loss of intervertebral disc space height, and moderate to severe left L5/S1 facet joint arthritis. There was no evidence of nerve root impingement. These degenerative changes were pre-existing and not caused by the workplace incident.
•Pre-existing symptoms: the history and medical notes support that there was a history of recurrent lower back pain with visits to the GP in 2016 and 2018 for lower back pain. Thus, there was a pre-existing condition which contributed to the ongoing impairment.
•Mechanism of injury: The history of injury 25 March 2019 indicated that Mr Greco fell to the ground. The injury seems reasonable to result in a soft tissue strain or aggravation but was unlikely to alter the underlying pathology of the lumbar spine.
•Employment: Mr Greco was employed in this position from 2018 around one year prior to the workplace injury, and his position was caregiver. The daily tasks described are unlikely to result in or contribute to the deterioration of his lumbar spine condition.
•Symptoms: Although there was a history of recurrent lower back pain, Mr Greco denied any lower back symptoms prior to the frank injury 25 March 2019. Mr Greco described immediate pain after the fall and underwent physiotherapy.
Based upon the above factors, Mr Greco had evidence of severe degenerative changes of the lumbar spine and had a history of recurrent lower back pain for which he saw his GP in 2016 and 2018. I would attribute ½ of the current condition to the pre-existing condition and ½ due to the workplace injury 25 March 2019. 7% - 3.5% = 3.5% which rounds to 4%.”
The paragraph quoted immediately above shows that the Medical Assessor has taken pains to set out the path of his reasoning. He has explained what he took into account in making the deduction. The submission that he has not done so is not further developed and, in respect of the lumbar spine, there is no basis to say that the Medical Assessor has not explained how he reached his decision.
Activities of daily living
The Medical Assessor allowed 2% for the activities of daily living on the basis that Mr Greco was able to self-care. The Guidelines provide:
“4.33 Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.
4.34 The following diagram should be used as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury.
…
4.35 The diagram is to be interpreted as follows: Increase base impairment by:
· 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
· 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
· 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
Mr Greco’s submissions suggest that his own medical evidence supports an allowance of 3%, contrasting the assessment made by the Medical Assessor of 2% with that of Dr Poplawski. There is no report from Dr Poplawski in the file – Mr Greco relied on a report by Dr Porteous who also allowed 2% for the impact of the injury on Mr Greco’s activities of daily living.
Mr Greco submitted that “affected” meant “influenced” and did not mean that the worker had to be unable to perform those tasks. He submitted that we should draw an inference from his complaints of back pain that his ability to perform those tasks is affected. There is no evidence in his statement that this is so, particularly when he has clearly set out the ways in which he is impacted by the injury. It is rare for an allowance of 3% to be made and would generally only be appropriate where a worker needed outside help with showering, dressing or other personal care activities.
The words of paragraph 4.34 are important – the diagram after paragraph 4.34 is to be used as a Guide, leaving a significant discretion to the Medical Assessor. The existence of the discretion is reinforced by the need to make the assessment based on clinical findings and other reports, not solely on self-reporting. Paragraph 1.25 of the Guidelines reminds the assessor
“The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports.”
The Medical Assessor took a history of the tasks Mr Greco can do at home. He is able to shower and dress. He is also able to perform some household tasks.
We do not consider that the Medical Assessor has misapplied his discretion. The history in the MAC shows that he asked Mr Greco about his activities. He has applied his clinical judgement and the assessment he made was open to him.
Section 323
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[4] (Cole) 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'.[5]
…
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…”
[4] [2010] NSWSC 78 at [29] and [38].
[5] At [29]-[30].
In Ryder v Sundance Bakehouse[6] (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.”
[6] [2015] NSWSC 526 at [45].
The Medical Assessor relied on the presence of significant degenerative change to make a large deduction under s 323, relying on an MRI scan reported on 6 August 2022 and reports of back pain in the general practitioners’ notes before the injury. Dr Patrick said that the MRI scan showed:
“There are multilevel spondylotic changes throughout the lumbar spine, with marked inlervertebral disc space narrowing and disc desiccation at L4/5. There is moderate to severe facet joint arthrosis at LS/S1, worse on the left. There is moderate facet joint arthrosis at L2/3. Mild facet joint arthropathy is seen at other levels.
…
CONCLUSION:
Severe degenerative changes at L4/S, with complete loss of intervertebral disc space height
Moderate to severe left L5/S1 facet Joint arthrosis.
Multilevel disc bulges, without significant central canal stenosis or evidence of nerve root impingement.”
Mr Greco said in his statement dated 24 August 2023 that he experienced some mild back pain in 2004 and in 2016. The pain resolved after a short period of time on each occasion. He saw his general practitioner about lower back pain in 2018. The pain settled on its own and he did not experience any more symptoms until the injury.
Dr Porteous recorded a history of a back injury in 1999 which settled with physiotherapy.
Mr Greco’s statement is supported by his general practitioner’s records. The notes from Five Dock Medical Centre begin in 2001. The only reference to back pain is when Mr Greco complained of it at the same time he was diagnosed with a urinary tract infection.
Dr Tringali’s notes commence in 2015 and how that Mr Greco attended the practice every few weeks. The first reference to back pain is on 9 August 2016 when Mr Greco complained of pain in his back and neck, interscapular pain and left hip pain. Dr Tringali did not prescribe pain medication or arrange scans and there is no further reference to back pain until 2018.
On 18 May 2018 Dr Tringali recorded a complaint of back pain and “intrascapular pain”. He ordered a CT scan but the results do not appear in the file. Mr Greco complained of pain again on 2 May and was referred to James Gulotta, whom we presume to be a physiotherapist in the absence of explanation in the file.
Dr Tringali noted “back pain ++” on 25 May 2018. On each of those occasions, Mr Greco also provided a history of either chest pain or anxiety. There is no report of a CT scan in the general practitioner’s notes.
Vitaz does not support the submission made for Mr Greco that there should be no deduction if there were no symptoms from a pre-existing condition before a work injury. Basten JA said:[7]
“…The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
[7] [2011] NSWCA 254 at [43].
A s 323 deduction is required even if there were no symptoms if the pre-existing impairment is a contributing factor to permanent impairment. Mr Greco had degenerative changes in his back which had caused pain from time to time in the past. The injury is an aggravation of those degenerative changes, which has continued from the time of the injury. It did “make a difference” to the outcome, as Campbell J said in Ryder.
While the Medical Assessor did provide reasons for the assessment he made, the deduction he made was, in the circumstances, excessive. As Schmidt J pointed out in Cole, the Medical Assessor was required to have regard to the actual consequence of the pre-existing condition. The findings on Mr Greco’s MRI scan are commonly seen in a person of his age and many people with quite significant radiological findings will suffer little or no practical impairment.
There is nothing in the file to suggest that Mr Greco was suffering from ongoing back pain or had any restrictions on his ability to work in the period immediately before the injury, though he had complained of back pain in the previous year. The notes from the general practitioner do not suggest significant or ongoing treatment.
In those circumstances, the appropriate deduction is one-tenth. Because the previous complaints of back pain were sporadic, a one-tenth deduction is not at odds with the evidence.
Taking a one-tenth deduction from the assessment of 7% and rounded as required by paragraph 1.26 of the Guidelines results in 6% WPI for Mr Greco’s lumbar spine.
Right hip
The Medical Assessor said;
“Mr Greco was asked about his right lower extremity. He had pain after the fall in his hip and right ankle. He underwent physiotherapy. He underwent a cortisone injection in his hip. Mr Greco stated he did not recall if he had investigations soon after the injury. He remembers he may have had a right ankle x-ray early on. Mr Greco stated he did not see a Specialist.
…
Mr Greco rated the right hip pain five out of ten and is worse in the outer and groin.”
The Medical Assessor set out his findings on examination. He reviewed an X-ray dated 26 July 2022 which showed “[m]ild degenerative change in the right hip. Bony irregularity at the greater trochanter” and an ultrasound on the same day which showed “[g]luteus medius tendinopathy. Signs of trochanteric bursitis.”
Setting out his diagnosis, the Medical Assessor said that the injury was a:
“Right hip strain, aggravation of underlying arthritis. X-rays 26 July 2022 revealed mild degenerative changes in the right hip. Apparently, a cortisone injection was given to the right hip October 2022 without improvement.”
After setting out his calculations, in respect of which there is no appeal, the Medical Assessor said:
“The right lower extremity impairment was 10% LEI. Table 17-3 p 527 AMA5 is used to convert 10% LEI To 4% WPI.
Deductions
The following factors apply when considered the deductible proportion:
• Pre-existing conditions: The x-rays of the pelvis 26 July 2022 revealed mild degenerative changes of the right hip which may contribute to the ongoing symptoms of the right hip.
• Pre-existing symptoms: There was no evidence of pre-existing symptoms of the right hip.
• Mechanism of injury: The history of injury 25 March 2019 indicated that Mr Greco fell to the ground. The injury seems reasonable to result in a soft tissue strain or aggravation but was unlikely to alter the underlying pathology of the hip.
• Employment: Mr Greco was employed in this position from 2018 around one year prior to the workplace injury, and his position was caregiver. The daily tasks described are unlikely to result in or contribute to the deterioration of his right hip.
• Symptoms: The fall resulted in right hip pain, prompting the need for treatment.
Considering the above factors, I conclude that a deduction is reasonable and not at odds with the available evidence. 4% = 1% = 3% WPI.”
For similar reasons to those set out above in respect of Mr Greco’s lumbar spine, a deduction of one quarter was at odds with the evidence. The arguments are stronger with respect to his right hip because there are no references to it in the clinical notes, confirming Mr Greco’s statement that it was asymptomatic before the injury. The appropriate deduction is one-tenth.
Other comments
Two matters are worthy of comment.
We note that in considering the s 323 deduction for each of Mr Greco’s lumbar spine and right hip, the Medical Assessor considered whether the daily tasks he undertook were likely to contribute to the condition. The fact that they were unlikely to do so is irrelevant to the assessment of a s 323 deduction when the injury was a frank event rather than a claim based on the nature and conditions of his employment.
Mr Greco argued that the Medical Assessor had expressed an opinion as to causation “which is not for the MA to decide.” That submission is incorrect. While a determination as to whether a worker suffered an injury is determined by the Personal Injury Commission, a Medical Assessor does have to consider questions of causation. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, Emmett JA said:[8]
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”(emphasis in original)
[8] [2014] NSWCA 264 at [110].
For the reasons set out above, we have determined that the MAC issued on 29 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6193/23 |
Applicant: | Stefano Greco |
Respondent: | Co.As.It Italian Association of Assistance |
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 Todd Gothelf 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) |
| Lumbar spine | 25.3.19 | Chapter 4 | Table 15-3 | 7 | 1/10th | 6 |
| Right upper extremity | 25.3.19 | Chapter 2 | Tables | 5 | 0 | 5 |
| Right lower extremity | 25.3.19 | Chapter 3 | Table 17-9 | 4 | 1/10th | 4 |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
7
0