Green v Secretary, Department of Education
[2023] NSWPICMP 49
•20 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Green v Secretary, Department of Education [2023] NSWPICMP 49 |
| APPELLANT: | Brooke Green |
| RESPONDENT: | Secretary, Department of Education |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 20 February 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant assessed for whole person impairment (WPI) from injury to lumbar spine and digestive system; appellant previously had microdiscectomy at L5/S1 level and made a full recovery; whether deduction of 10% WPI under section 323 with respect to lumbar spine was an error; Held – Appeal Panel held it was an error; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 December 2022 Brooke Green (Ms Green) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr S K Cyril Wong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
8 November 2022.The respondent to the appeal is the Secretary, Department of Education (the respondent).
The appellant 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 is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 April 2016 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Green, who was employed by the respondent as a teacher, sustained an injury to her lumbar spine and digestive system deemed to have occurred on 23 February 2017.
The matter was referred to the MA, on 16 March 2022 for assessment of whole person impairment (WPI) of the lumbar spine and digestive system (deemed date of injury
23 February 2017).The MA examined Ms Green on 27 October 2022 and assessed 17% of the lumbar spine and 5% of the digestive system which resulted in a total WPI of 21% as a result of the injury deemed to have occurred on 23 February 2017. The MA assessed 2% WPI for scarring (TEMSKI) in a further MAC dated 22 December 2022.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
Ms Green did not request that she be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms Green to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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.
Ms Green’s submissions include the following:
(a) the MA at paragraph 11 expressed the opinion that the deductible proportion was 10% WPI for the following reasons: “The lumbar spine had decompression surgery (a microdiscectomy at L5/S1) in 2015. Therefore, it has a DRE III impairment amounting to 10% WPI”;
(b) the MA recorded at page 3 that Ms Green has a prior lumbar spine injury in 2015 with back pain. The MA noted that Dr Seex, neurosurgeon, did a microdiscectomy at L5/S1 level and Ms Green made a full recovery. She told the MA that she did not require any treatment between the two accidents and she denied any other problems with her body prior to these accidents;
(c) Ms Green in her statement evidence recorded that in 2015, she underwent L4/5 microdiscectomy under the hand of Dr Kevin Seex. She stated that she fully recovered and returned to work and got back to running up to 70km a week which she had been doing prior to the surgery;
(d) Dr Rosenberg recorded the following history: “Of relevance in her past history, she was very active and sporty, and an extremely keen runner. She used to run up to 70km per week”;
(e) Dr Conrad reported:
“Prior to the accident, she injured her back and Dr Seex, Neurosurgeon, did a microdiscectomy and she made a good recovery. She said she did not require any treatment between the two accidents. She denies any other problems with her body prior to these accidents”;
(f) Dr Truskett recorded the history relating to the past surgery:
“She underwent a LS/$1 microdiscectomy in 2015 performed by Dr Kevin Seex for a back injury that was related to running. She experienced right sciatic pain with this injury. She was off work for 12 weeks and fully recovered”;
(g) Dr Stening expressed the following opinion: “The degenerative changes seen on the radiological studies at the time of her work related injury predated the injury, therefore, in the absence of evidence to the contrary, 10% should be deducted”;
(h) the MA provided an assessment of WPI both with respect to the gastrointestinal injury (noting the doctor is a general surgeon) and the orthopaedic injury to the lumbar spine. The MA assessed a 5% WPI relative to the digestive system which was consistent with the assessments made by Drs Conrad and Truskett who had both assessed a 5% WPI;
(i) the MA in making an assessment of WPI of the lumbar spine arrived at a similar overall assessment to those made by Drs Rosenberg and Stening, ie, 27% WPI. Dr Stening made a 10% deduction to arrive at an overall 24% WPI. Dr Rosenberg assessed a 27% WPI but made no deduction for pre-existing conditions on the basis that although Ms Green had some pre-existing radiological damage at the lumbosacral level, it was completely asymptomatic and therefore he did not be allow any deductions.
(j) Ms Green’s primary position was that Dr Rosenberg took the correct approach to the application of s 323 of the 1998 Act. There was no evidence of impairment or restriction in Ms Green’s lumbar spine prior to the workplace injury nor any impairment or restriction in her capacity to work and exercise. This approach was correct and consistent with the authorities relative to the application of s 323 given there is no suggestion here of any impairment caused by the earlier back surgery. In the alternative, and as the 1998 Act envisaged/allowed, Dr Stening’s approach was also available;
(k) the MA, however, took an approach which was inappropriate. The MA, in considering the application of s 323, purported to make an assessment of the likely back impairment prior to the workplace injury with reference to the fact that there had been a micro-discectomy performed. The MA determined the prior surgery would attract 10% WPI and deducted that 10% WPI from the 27% WPI assessed; effectively making a 40% deduction under s 323 of the Act. Putting to one side whether the 10% WPI assessment for a microdiscectomy without evidence of radiculopathy was correct, the approach was flawed;
(l) the Supreme Court and Court of Appeal have regularly dealt with the application of s 323 of the 1998 Act. Cole v Wenaline Pty Ltd (2010) NSWSC 78, for example, is authority for the proposition that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality, condition or previous injury that contributes to the impairment; see also D’Aelo, Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq.)[2013] NSWSC 36 and Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder);
(m) in Clinen, Campbell J said:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice."
Campbell J also noted that it is:
"…necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case";
(n) there was no evidence of a prior, symptomatic, condition. The mere existence of ‘degenerative change’ or ‘an abnormality’ was insufficient to warrant a deduction; more was needed to attribute any assessable impairment to such a condition for it to be of any relevance;
(o) there was no evidence the prior injury had resulted in an impairment that would justify any deduction let alone the 40% posited by the MA. At its highest the approach of Dr Stening in applying a 10% deduction could be contemplated;
(p) the fundamental problem with the MA’s approach was the assumption that evidence of pre-existing condition means, ipso facto, a deduction must be applied. This misunderstands the statutory scheme and was an error;
(q) in Ryder, Campbell J made the following point at [54]:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition. In the circumstances, there is no pre-existing condition for which an attributable impairment could be identified then the application of s 323 of the 1998 Act by the MA was incorrect. In the circumstances the application of s 323 of the 1998 Act by the MA was applied incorrect criteria and is a demonstrable error”, and
(r) the appeal panel should deal with the proper application of s 323 and issue a MAC accordingly.
The respondent’s submissions include the following:
(a) the appeal related to the MA’s application of a deduction pursuant to s 323 of the 1998 Act. Ms Green’s complaint regarding the MA’s application of the s 323 deduction was essentially that he should not have applied any deduction or that he should not have applied a deduction of more than 10%, in circumstances where her previous lumbar spine injury was asymptomatic;
(b) Ms Green appeared to contend that a contribution to impairment can only occur in circumstances where the pre-existing injury, condition or abnormality is symptomatic, suggesting that a s 323 deduction can only apply in circumstances where the pre-existing condition is symptomatic;
(c) the appeal must fail as the appellant’s basis for challenging the MA’s application of the s 323 deduction was erroneous, misconstrued and a misapplication of well-established case-law;
(d) the respondent agreed with the appellant that for s 323 to be engaged, there must be evidence that the pre-existing injury, condition or abnormality contributes to the impairment. However, the application of a deduction pursuant to s 323 does not require evidence of a prior symptomatic condition as suggested by the appellant. The consideration of whether a pre-existing condition was asymptomatic was irrelevant to the question of whether s 323 will be ultimately engaged;
(e) the correct test was whether the pre-existing condition contributes to the impairment and the proposition that a pre-existing condition that is asymptomatic is one that cannot or does not contribute to impairment, was inherently flawed;
(f) Ms Green’s 2015 lumbar spine injury and the fact of her lumbar spine decompression surgery (L5/S1 microdiscectomy) by treating neurosurgeon at the time, Dr Seex, constituted evidence of a pre-existing injury, condition or abnormality contributing to impairment. This was a matter of fact and not assumption;
(g) paragraph 4.37 of the Guidelines (p 29) specifically says that “surgical decompression…is DRE category III”. Table 15-5, AMA 5 (p 392) indicates the range of impairment for DRE Lumbar Category III is 10-13% WPI;
(h) the fact of Ms Green’s previous lumbar spine decompression surgery meant that at the very least, she had a degree of permanent impairment of at least 10% WPI. The MA ultimately rating Ms Green as having 10% WPI for her previous lumbar spine decompression surgery was a conclusion that was available to him on the current evidence and consistent with the Guidelines and AMA 5. The MA’s findings were based on fact and he had appropriately explained how he has concluded the appellant had 10% WPI from her pre-existing lumbar spine injury (because he concluded the pre-existing condition met the criteria for DRE category III);
(i) if it was accepted that Ms Green’s previous lumbar spine decompression surgery had 10% WPI attributable to it, then that can only mean the previous lumbar spine decompression surgery contributed to her currently assessed lumbar spine impairment. It followed that a deduction of 10% WPI must be relevantly applied pursuant to s 323;
(j) the respondent relies on Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254, Basten J at [43]: “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”;
(k) it was clearly the case that Ms Green’s pre-existing condition (being her 2015 lumbar spine injury and lumbar spine decompression surgery) was a contributing factor causing permanent impairment (of at least 10% WPI) and therefore a deduction was required even though her pre-existing condition may have been asymptomatic prior to the injury;
(l) a 10% deduction is warranted in circumstances where the extent of contribution from the pre-existing injury, condition or abnormality was too difficult to costly to determine. However, that situation has to distinguish from the current context as the degree of contribution from Ms Green’s previous lumbar spine decompression surgery was able to be ascertained ie 10% WPI;
(m) for the reasons set out above, the MAC disclosed no error or application of incorrect criteria, and
(n) the appeal should be dismissed and the MAC of the MA dated 8 November 2022, confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
Under “History relating to the injury”, the MA wrote:
“On 23 February 2017, Ms Green was teaching the Year 1 students how to skip using a skipping rope. When she was bending over to assist a student to get the skipping rope over his head, another child skipping beside her, bumped into her causing her to fall on her back on the left side. Ms Green was in a lot of pain at her lower back and left leg. She lost of her consciousness transiently. Her husband was called and took her to Nepean Hospital. She had a CT scan of the lumbar spine.
For her persistent low back pain, Ms Green was referred to neurosurgeon
Dr Matthew Tait who recommended surgery. Dr Tait enlisted the help of a vascular surgeon Dr Shen Wong to gain access to the spine from the front. On 14 July 2017 Ms Green underwent an LS/Sl fusion and an L4/5 disc replacement. She had a good result but when she was assessed by Dr Tait on 11 September 2017, she complained of left sided abdominal wall protrusion, but no hernia was in evidence. There were in addition episodes of colicky abdominal pain and constipation. A CT scan subsequently showed no evidence of large or small bowel obstruction or intra-abdominal collection and there was no evidence of abdominal wall herniation. Ms Green consulted general surgeon Dr Anubhav Mittal who considered the symptoms were predominantly psychological. The doctor also considered the possibilities of prolonged colonic transit and perhaps denervation of the left abdominal wall musculature…”Under “Details of any previous or subsequent accidents, injuries or conditions” the MA wrote:
“Ms Green has a prior lumbar spine injury in 2015 with back pain. Dr Seex, neurosurgeon, did a microdiscectomy at LS/S1 level and she made a full recovery. She said she did not require any treatment between the two accidents. She denies any other problems with her body prior to these accidents.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Brooke Green is a 47-year-old woman who had an accident at work sustaining a soft tissue injury to her lumbar spine. Ms Green complained of a bulge in the left abdomen and neuropraxia was diagnosed. She had multiple re-enforcement repairs to the abdominal wall. She continues to have abdominal pain symptoms and pain at the lumbar spine with loss of touch sensation at the lateral part of the left foot and at the lateral three toes of both feel [sic].”
At Part 8 e under “Evaluation of Permanent impairment” the MA answered the question “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” “Yes”. He identified at 8 f that the body part affected by the previous injury was the lumbar spine.
Under “Reasons for Assessment”, at 10(c) the MA wrote:
“The lumbar spine was assessed as DRE IV at 20% WPI based on fusion at LS/S1. Additional 2% WPI was rated for ADL restriction for performance of household tasks as described (SIRA4 S4.35). Modifiers for DRE allow 3% WPI for persistent radiculopathy, 1% WPI for one additional level operated on at L4/5 disc replacement and 2% for second operation.
The total modifier impairments amounted to 6% WPI {SIRA 4 T4.2). The total lumbar spine impairment= Combine 22% and 6% = 27% WPI. This was reduced by 10% WPI based on the decompression surgery to the lumbar spine at LS/S1 in 2015. The final total lumbar spine impairment equals to 17% WPI.”
In commenting on the other medical opinions and findings, the MA wrote:
“23 November 2021 Dr Warwick Stening rated lumbar spine as DRE IV at 20% WPI, ADL at 2% WPI, DRE modifiers 4% WPI and scarring at 4% WPI. After 1/10 apportion, the final total impairment= 27% WPI inclusive of 1/10 deduction for the pre-existing impairment from decompression surgery to the lumbar spine.
…
12 May 2022 Geoffrey Rosenberg assessed the lumbar spine as DRE IV at 27% WPI but he made no deduction for the pre-existing impairment of pre-existing decompression surgery to the lumbar spine.
In this examination, I agree with the DRE IV assessment at 20% WPI. I agree with the ADL restrictions at 2% WPI. I found persistent radiculopathy with loss of sensation at the lateral three toes at both sides and with additional one level of surgery and a second operation I have assessed the modifiers amounting to 6% WPI. I have taken note of the prior decompression surgery to the lumbar spine in 2015. This allows the apportionment of 10% WPI. The final total lumbar spine impairment was therefore 17% WPI”.
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”. The MA wrote:
“a. In my opinion the worker suffers from the following relevant previous injury or preexisting conditions or abnormalities:
(i) Decompression surgery to the lumbar spine
The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) The lumbar spine has a pre-existing DRE Ill injury at the lumbar spine based on the prior decompression surgery to the lumbar spine.
In my opinion the deductible proportion is 10% WPI for the following reasons:
The lumbar spine had decompression surgery (a microdiscectomy at LS/S1) in 2015. Therefore, it has a DRE Ill impairment amounting to 10% WPI.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Deduction for previous injury
The Guidelines at Part 2 under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Section 323 of the 1998 Act provides:
“(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.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
…”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole). Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction 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.
30 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 injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment’. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine.Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case.An assumption of the kind here made, namely that surgery to the lumber spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.
…That is a matter of fact to be assessed on the evidence led in each case.”
Basten JA in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 referred to the approach adopted by the Court in, for example, D’Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]- [32] and, more recently, by Schmidt J in Cole. His Honour said: “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”.
The appellant submitted that the MA incorrectly applied a deduction for previous injury or pre-existing condition or abnormality (s 323 (2) of the 1998 Act and s 1.28 of the Guidelines).
The Appeal Panel was satisfied that the MA made an assumption that even though the treatment of the first injury in 2015 to Ms Green’s spine had been successful, the very fact of the existence of that prior injury, ‘irrespective of outcome’, resulted in an impairment which must have contributed to the impairment which arose after the second injury on
23 February 2017. The MA failed to follow the steps set out in Cole and to determine on the evidence whether any proportion of the permanent impairment present after the second injury was due to the earlier injury. The Appeal Panel determined that the MA made an error in that he calculated the impairment that was pre-existing and then deducted the pre-existing impairment from the current impairment rather that pointing to the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributed to that assessment. In Vitaz v Westform (NSW) Pty Limited and Ors [2010] NSWSC 667, decided on 22 June 2010, Johnson J said at [48]: “...it is insufficient to assume that the existence of a pre-existing injury or condition will always contribute to the impairment flowing from any subsequent injury: Cole v Wenaline Pty Limited at [30]”.The Appeal Panel reviewed the evidence in this matter.
Ms Green, in a statement dated 5 July 2022, said that in 2015, she underwent L4/5 microdiscectomy under Dr Kevin Seex. She stated that she fully recovered and returned to work and got back to running up to 70km a week which she had been doing prior to the surgery. Ms Green stated that she used to enjoy yoga and can no longer do that, she can no longer kayak or use a paddleboard and cannot swim as she can’t kick her legs or twist her back and can no longer drive a manual car. She stated that she cannot sit for more than one hour and cannot go to the movies anymore.
In a report dated 12 May 2022 Dr Geoffrey Rosenberg, orthopaedic surgeon, wrote:
“Of relevance in her past history, she was very active and sporty, and an extremely keen runner. She used to run up to 70km per week. Through this, she developed increasing back and in particular right leg pain. She underwent an L4/5 and lumbosacral microdiscectomy by Dr Kevin Seex, Neurosurgeon, in 2015. She made a complete recovery from this. She was back to full-time work without problems and back running up to 70km per week. This new injury caused new onset of back pain and now left leg pain. As mentioned, she underwent anterior surgery in July 2017. This did result in some improvement in her left leg pain.
Her back whilst slower to improve, did recover slowly.
…
I believe the incident suffered by her during her employment is the main contributing
factor to her problems and her current condition. While she would have had some pre-existing degenerative change at the lumbosacral level, this was completely
asymptomatic. I suspect the injury has resulted in an aggravation of this degenerate disc as well as the injury by way of an annular tear at the L4/5 level.”
Dr Rosenberg assessed 27% WPI in respect of the lumbar spine. He wrote:
“Whilst she did have some pre-existing radiological damage at the lumbosacral level, it was completely asymptomatic and I therefore would not be allowing any deductions.”
In a report dated 3 June 2022, Dr Peter Conrad, general surgeon, wrote:
“Prior to the accident, she injured her back and Dr Seex, Neurosurgeon, did a
microdiscectomy and she made a good recovery. She said she did not require any treatment between the two accidents. She denies any other problems with her body prior to these accidents.”
In a report dated 2 November 2021, Associate Professor Truskett, general surgeon, wrote:
“She underwent a LS/S 1 microdiscectomy in 2015 performed by Dr Kevin Seex for a back injury that was related to running. She experienced right sciatic pain with this injury. She was off work for 12 weeks and fully recovered.”
In a report dated 23 November 2021 Dr Warwick Stening wrote:
“She had previously had a microdiscectomy in her lumbar spine in 2014 for pain in her right leg. This operation was done by Dr Kevin Seex. She returned to normal after this and went back to her vigorous fitness schedule of running and exercising.
…
As the previous microdiscectomy, performed by Dr Seex in 2015, was prior to the
work-related injury, it is not relevant in calculation of Whole Person Impairment (WPI).
…
The SIRA Guidelines, paragraph l .28, page 6, state that when there is a pre-existing condition or abnormality, a deduction of 1/ 10 should be made from the WPI, unless this is at odds with the available evidence.
The degenerative changes seen on the radiological studies at the time of her work related injury predated the injury, therefore, in the absence of evidence to the
contrary, 10% should be deducted.”
There is no dispute that Ms Green had an injury to her lumbar spine in about 2015. To make a deduction from what has been assessed to have been the level of impairment which resulted from the later injury in 2017, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
The Appeal Panel noted that Ms Green underwent surgery, a micro discectomy at L5/S1, on 16 February 2015. The outcome of the micro discectomy at L5/S1 was excellent and
Ms Green was able to return to her employment and went back to all of her activities, including running, without restriction. The Appeal Panel accepted that Ms Green was asymptomatic prior to the injury on 23 February 2017.The Appeal Panel noted, however, that the MRI scan on 6 March 2017, that is, shortly after the work injury on 23 February 2017, showed pre-existing degenerative changes. Dr Tarek Bhuiyan, radiologist, in the report of the MRI scan of the lumbar spine dated
6 March 2017, concluded there were degenerative endplate changes at L5/S1 with loss of disc height and hydration. Although Ms Green was at the time of the work injury asymptomatic, the Appeal Panel was satisfied that the degenerative changes shown on the MRI scan contributed to the impairment assessed by the MA. The Appeal Panel was satisfied that a proportion of the permanent impairment present after the second injury was due to the earlier injury in 2015.After considering all the evidence, the Appeal Panel considered that a deduction of 1/10th was appropriate as the extent of the deduction would be difficult to determine. A deduction of 1/10th was not at odds with the evidence.
Therefore, as Ms Green was placed in DRE Category IV, with an assessment of 27% WPI for the lumbar spine, a deduction of 1/10th or 2.7% for the pre-existing injury results in an assessment of 24.3% which is rounded down to 24 % WPI. The 24% WPI for the lumbar spine is combined with 5% WPI for the digestive system and 2% WPI for scarring, which results in a total of 29% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
8 November 2022 should be revoked.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W5717/22 |
Applicant: | Brooke Green |
Respondent: | The Secretary, Department of Education |
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 S K Cyril Wong and issues this new Medical Assessment Certificate as to the matters set out in the Table below.
Table - Whole Person Impairment (WPI)
Table 2 - Assessment in accordance with AMA 5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar Spine | 23/2/17 | Chapter 4 Page 24-29 | Chapter 15.3 Page 384 Table 15-3 | 27% | 1/10th | (24.3) 24% |
| Digestive System | 23/2/17 | 5% | nil | 5% | ||
| Scarring (TEMSKI) | 23/2/17 | Chapter 14 Pages 73-74 | 2% | nil | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 29% | |||||
0
9
0