Hakainsson v Direct Group Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Hakainsson v Direct Group Pty Ltd [2024] NSWPICMP 761
APPELLANT:	Denice Hakainsson
RESPONDENT:	Direct Group Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Todd Gothelf
DATE OF DECISION:	6 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether deduction Medical Assessor (MA) made under section 323(1) involved error; whether appellant had a pre-existing condition; Held – the appellant had a pre-existing condition and that condition contributed to her present permanent impairment; MA was correct to engage section 323(1) and the deduction he made did not involve error; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 August 2024 Denice Hakainsson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 July 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the 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 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

On 18 July 2008 the appellant injured her lumbar spine whilst working for Direct Group Pty Ltd. Her injury occurred as a consequence of a lift in which she was traveling coming to a sudden stop and jamming, which caused her to jar her back.
The appellant first consulted her general practitioner, Dr Ian Longhurst, on
28 November 2008 regarding her injury, at which time she described to her doctor feeling a “crunch in her lower back” at the time she suffered her injury. She also described experiencing a repeat of that sensation a couple of weeks after the incident and also experiencing tingling down her legs centrally and past her knee to the lateral leg and calf on the left.
Dr Longhurst referred her for a CT scan of her lumbar spine, which was done on
5 January 2009. The report on that scan that was provided to Dr Longhurst was as follows:
“LUMBOSACRAL SPINE
History: Left L5 pain.
Findings: degenerative changes are present with osteophyte formation in the lower thoracic and lumbar vertebral bodies.
Intervertebral disc spaces appear well maintained.
SI joints appear normal.
The IUD is noted overlying the sacrum.
CT LUMBOSACRAL SPINE
Scans were performed from L1 to the sacrum.
L1/2: No disc abnormality is seen, lateral recesses appear normal. Minor degenerative changes are present at posterior joints, but there is no narrowing of the spinal canal.
L2/3: No disc abnormality is seen. Lateral recesses appear normal.
Posterior joints appear normal. There is no narrowing of the spinal canal.
L3/4: No disc abnormality is seen, lateral recesses appear normal, posterior joints appear normal. There is no narrowing of the spinal canal.
L4/5: There is some slight generalized bulging of the discs, but no localized protrusion is evident, lateral recesses appear normal.
Degenerative changes are present in the posterior joints and there is hypertrophy of the ligamentum flavum. This is causing moderate narrowing of the spinal canal.
L5/S1: There is some slight right posterolateral broad based bulging of the discs, which is bulging into the right lateral recess. The left lateral recess appears normal. Moderate degenerative changes are present in posterior joints and there is slight narrowing of the spinal canal.”
The appellant had a further CT scan done of her lumbar spine on 12 November 2014. The radiologist who reported on that commented that it revealed spondylotic degenerative and disc pathology at L4/5 and L5/S1 and minor spondylotic change at other levels. The specific findings the radiologist reported with respect to the L4/5 and L5/S1 levels of the appellant’s lumbar spine were as follows:
“At L4/5, there is mild endplate and moderate bilateral facet joint arthropathy. Mild broadbased generalised posterior disc bulge and ligamentum flavum hypertrophy with resultant moderate central canal and minimal bilateral foraminal stenosis.
At L5/S1, there is moderate bilateral facet joint arthropathy. Broadbased generalised posterior disc bulge which together with facet joint hypertrophy changes results in mild to moderate central canal and moderate bilateral foraminal stenosis.”
On 3 November 2016 an MRI scan was done of the appellant’s lumbar spine. That preceded surgery the appellant had on 4 November 2016, in which neurosurgeon Dr Johnathon Ball performed a laminectomy at L4/5. The findings from that scan included degenerative changes in the facet joints at the L4/5 level with bilateral medially directed synovial cyst and slight displacement of the L4 on L5 related to degenerative changes in the facet joints. The radiologist reporting on the scan advised that those changes combined to produce mild canal stenosis. There was no definite evidence of compression on the exiting nerve roots at L4/5. The scan also revealed degenerative changes in the facet joints L5/S1 with loss of signal intensity within the L5/S1 intervertebral disc, which the radiologist reported might relate to disc degeneration. The radiologist reported that there was no evidence of disc protrusion or compression upon the thecal sac or exiting nerve roots. The radiologist considered the changes at L5/S1 might combine to produce mild compromise of the neural foraminal without definite compression on the exiting L5 nerve roots.
A further CT scan of the appellant’s lumbar spine was done on 8 March 2019. The radiologist who reported on that considered it revealed a minor 1mm anterolisthesis of L4 on L5 and L5 to S1 secondary to facet arthropathy. The findings also included the following relating to the appellant’s L4/L5 and L5/S1:
“At the L4/L5 level, there is a mild to moderate generalised disc bulge associated with moderate to severe facet arthrosis resulting in moderate central canal and lateral recess narrowing, mild to moderate right foraminal narrowing and mild to moderate left foraminal narrowing.
At the L5/S1 level, there is a generalised discophytic bulge associated with severe facet arthrosis resulting in moderate to severe bilateral foraminal stenosis and moderate lateral recess stenosis.”
The reporting radiologist also noted that the appellant presented with a history of right sided L5/S1 sciatica and commented that sciatica was likely due to irritation of the right L5 and possibly the S1 nerve root at the L5/S1 level. The radiologist also commented that mild to moderate right foraminal narrowing at the L4/L5 level potentially could be irritating the appellant’s right L4 nerve root on weight bearing. He also commented that there is potential for irritation of the appellant’s left L5, S1 and L4 nerve roots at the same time as the right side. He commented that there was severe facet arthrosis at the lower two lumbar levels.
A further MRI scan of the appellant’s lumbar spine was done on 6 February 2020. The reporting radiologist commented that the scan revealed central narrowing at L4/5 and L5/S1 due to degenerative changes and grade 1 anterolisthesis, worse at L4/5. His specific findings relating to the L4/5 and L5/S1 levels were as follows:
“L4/5:
There is a 4mm degenerative anterolisthesis. There is moderately severe central narrowing associated with broad-based disc bulging anteriorly and advanced bilateral facet joint osteoarthrosis and ligamentum flavum hypertrophy posteriorly. There is marked narrowing of the lateral recesses with likely impingement of descending L5 nerve roots at this level. No significant foraminal stenosis is seen.
L5/S1:
Minor 2mm degenerative anterolisthesis. There is broad-based posterior disc bulge and ligamentum flavum hypertrophy and bilateral facet joint osteoarthrosis. There is mild spinal canal and moderate lateral recess stenosis worse on the left. No foraminal stenosis.”
On 15 May 2020 a bone scan was done of the appellant’s lumbar spine, pelvis and hips. That revealed markedly active left L4/L5 facet joint arthritis and moderately active L5/S1 facet joint arthritis.
On 9 March 2021 Dr Ball performed further surgery on the appellant undertaking a laminectomy and surgical fusion of the appellant’s L4/5 and L5/S1.
On 3 April 2023 the appellant’s solicitors wrote to the respondent’s insurer seeking that the insurer concede that the degree of the appellant’s permanent impairment is more than 20%. The appellant relied on a report of orthopaedic surgeon Dr James Bodel dated
27 January 2023 who had examined the appellant on 19 January 2023 and assessed the degree of the appellant’s permanent impairment from her injury in 2008 was 28% whole person impairment (WPI). Dr Bodel advised in his report that there was no indication clinically that the appellant had any pre-existing abnormality or condition at the time she suffered injury on 18 July 2008.
To respond the request the appellant made, the respondent’s insurer’s solicitors arranged for the appellant to be examined by orthopaedic surgeon Associate Professor Brett Courtenay on 1 June 2023. In a report dated 26 June 2023 A/Prof Courtenay advised that he assessed the degree of the appellant’s permanent impairment from her injury was 13% WPI. He assessed she have an overall permanent impairment of 24% relating to her lumbar spine but considered half of that was due to a pre-existing condition the appellant had in her lumbar spine, being progressive degeneration and spinal stenosis. When he made that deduction, the result was 12% WPI to which he added 1% WPI for scarring, and hence his assessment that the degree of the appellant’s permanent impairment from her injury was 13%.
On 29 June 2023 the respondent’s insurer’s solicitors wrote to the appellant’s solicitors advising that based on A/Prof Courtenay’s report their client did not concede that the degree of the appellant’s permanent impairment from her injury was more than 20%. That prompted the appellant to lodge with the Personal Injury Commission (Commission) a Form 7 Application for Assessment by a Medical Assessor. Upon the Commission receiving the respondent’s response to that, the matter was referred to the Medical Assessor, who examined the appellant on 3 July 2024 and, as said, issued the MAC on 22 July 2024.[1]
[1] The Form 7 Application the appellant’s solicitors lodged on behalf of the appellant specified a date of injury of 1 October 2008 and that was also the date specified in the referral to the Medical Assessor. That however is inconsistent with the evidence before the Appeal Panel which indicates that the date of the appellant’s injury was 18 July 2008. Nothing hinges on that, and the Appeal Panel merely notes this for the sake of completeness.
The Medical Assessor detailed briefly in the MAC the mechanism by which the appellant suffered her injury and the treatment she has received for her injury and the treatment she presently receives. He noted that the appellant reported her present symptoms consisted of low back pain with lumbar stiffness in her buttock, and sciatica that impacts her activities of daily living. He noted the appellant experienced difficulty with prolonged sitting and driving and that repetitive bending and stopping aggravates her back pain.
With respect to the effect the appellant’s injury has on her activities of daily living the Medical Assessor noted that the appellant has difficulty dressing and doing her toe nails and difficulty with heavy cleaning and lifting and carrying heavy groceries and laundry. The Medical Assessor noted that the appellant has difficulty with repetitive tasks such as meal preparation, washing, bed making and ironing. The Medical Assessor noted that the appellant has difficulty doing gardening and cleaning her car and difficulty with prolonged driving.
The Medical Assessor set out in the MAC his findings from his physical examination of the appellant. The appellant has not raised an issue in her appeal against the MAC with the manner in which the Medical Assessor conducted his examination or his findings from his examination.
The Medical Assessor provided brief details in the MAC on some of the radiological investigations the appellant had relating to her injury.
The Medical Assessor provided the following summary of the appellant’s injury and his diagnoses of her injury:
“In summary this claimant sustained a jarring injury to her back and the initial CT scan
showed disc bulging at L4/5 and right posterolateral broad based bulge of L5/S1 disc with moderate degenerative change in the L4/5 and L5/S1 facet joints and she subsequently developed L5 radicular complaint and required an L4/5 laminectomy and discectomy.
Her diagnoses are:
o L4/5 and L5/S1 posterolateral fusion;
o Radicular complaint with right buttock sciatica;
o Impaction of her injuries on her ADLs including foot care;
o Reliance on analgesia;
o Residual lumbosacral facet arthralgia on the right.”
The Medical Assessor assessed the appellant had 26% WPI relating to her lumbar spine. He detailed in the MAC the criteria by which he made that assessment. Neither party has raised an issue regarding this aspect of the medical assessment. The Medical Assessor also assessed the appellant had 1% WPI relating to scarring from her surgery. Again, neither party raised any issue regarding this aspect of the Medical Assessor’s assessment.
The Medical Assessor considered that one-quarter of the 26% WPI he assessed the appellant had relating to her lumbar spine was due to a pre-existing condition that he identified as “L4/5 and L5/S1 facet arthrosis and L4/5 degenerative spondylolisthesis at L5/S1”. He made a deduction under s 323(1) of the 1998 Act for that.
The appellant’s appeal against the Medical Assessor relates to that deduction.
The Medical Assessor, by way of explaining the deduction he made, said the following within part 11a of the MAC:
“Whilst the extent of the deduction is difficult or costly to determine, on the available
evidence a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is one quarter for the following reasons:
(i) She has pre-existing L4/5 and L5/S1 facet arthrosis and L4/5 degenerative spondylolisthesis at L5/S1.”
The Medical Assessor observed that Dr Bodel made no deduction for pre-existing abnormality.
The Medical Assessor also observed that A/Prof Courtenay made a deduction of 50% for a pre-existing condition. The Medical Assessor, with respect to that, said the following:
“I believe this is excessive as the claimant did well after her first spinal procedure where she had the L4/5 discectomy and although she had some residual back pain and radicular complaint, she was able to return to work and it was not until much later that she had further low back pain and left sciatica and required the posterior L4/5 and L5/S1 decompression laminectomy and posterolateral fusion. I have allowed one quarter for preexisting condition as stated above.”
The Medical Assessor, upon making a deduction of one-quarter under s 323(1) from the 26% WPI he assessed the appellant had relating to her lumbar spine, assessed the appellant’s permanent impairment relating to her lumbar spine from her injury is 18% WPI, which, when combined with the 1% WPI he assessed the appellant had for scarring, resulted in 19% WPI, and that is what the Medical Assessor certified in the MAC was the degree of the appellant’s permanent impairment from her injury.

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because neither party challenged the findings from the Medical Assessor’s examination of the appellant, nor the overall permanent impairment he assessed the appellant had relating to her lumbar spine. Further, it is apparent to the Appeal Panel that the Medical Assessor conducted a thorough examination of the appellant and his findings from his examination are reliable. Consequently, no purpose would be served by re-examining the appellant.
In any event, as mentioned above, the issues the appellant has raised in the appeal relate to the deduction the Medical Assessor made under s 323(1) and the material before the Appeal Panel is sufficient to enable it to deal with these issues.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions, so as to provide a summary of them, they are that the Medical Assessor did not expose in the reason he provided for making a deduction under s 323(1), how her pre-existing condition contributed to her current permanent impairment from her injury. The appellant noted that her lumbar spine has remained symptomatic since her injury and required two surgical interventions. The appellant submitted, relying on State Insurance Commission v Oakley[2] and Secretary, NSW Department ofEducation v Johnson[3] that her surgeries were the result of her injury on 18 July 2008 and there was no evidence to contradict that.
[2] [1990] 10 MVR 570 (Oakley).
[3] [2019] NSWCA 321 (Johnson).
The appellant submitted the Medical Assessor’s conclusion that because she had improvement following her laminectomy in 2016 but subsequently suffered deterioration prior to her lumbar fusion in 2020, a deduction of 25% should be made under s 323(1) involved wrong reasoning. The appellant submitted that the Medical Assessor was required to determine what level of her impairment resulted from her pre-existing condition.
The appellant noted that the first investigation that was done on her lumbar spine occurred six months after she suffered her injury. The appellant submitted that there was nothing in the report on that investigation to indicate that she was arthritic prior to her suffering injury. The appellant submitted that the report on that investigation, which the Appeal Panel notes was the CT scan done on 15 January 2009, does not demonstrate any pre-existing pathology but rather a pathology that was caused by her injury.
The appellant submitted that if a proportion of her permanent impairment was due to a pre-existing injury then the deduction for that pre-existing condition would be difficult to determine and in that circumstance it was mandatory for the Medical Assessor to apply s 323(2) and assume that the deduction to be made under s 323(1) is 10%.

The appellant submitted that the Medical Assessor by concluding there should be a 25% deduction under s 323(1) on the basis that her condition following her laminectomy in 2016 was better than her condition was at the time of her second surgery, applied incorrect criteria. The appellant submitted that the criteria that the Medical Assessor ought to have applied with respect to the deduction to be made required him to consider to what extent her current impairment is a result of her existing condition.
Paraphrasing the respondent’s submissions, again to provide a summary of them, they are that when the MAC is read as a whole, the Medical Assessor’s reference regarding the appellant’s symptomatic improvement following her L4/5 discectomy but subsequent deterioration prior to her L4/5 and L5/S1 laminectomy and fusion, was to explain why he considered the deduction A/Prof Courtenay made was excessive, as distinct from his explaining his reasons for making a 25% deduction.
The respondent submitted that the deduction the Medical Assessor made is not excessive. The respondent submitted that the deduction the Medical Assessor made accords with the authority of Cole v Welanine.[4]
[4] [2010] NSWSC 78.
The respondent submitted that the Medical Assessor’s opinion relating to the deduction he made was based on the available evidence including the radiological findings. The respondent submitted that the initial scan of the appellant’s lumbar spine following the injury revealed widespread pathology in the appellant’s back. The respondent submitted that the Medical Assessor correctly concluded that that was pre-existing for which account had to be made under s 323. The respondent submitted that it does not matter that the appellant’s pre-existing condition was asymptomatic at the time of injury and the effect that that pre-existing condition has at the time of assessment must be considered.
The respondent submitted that the reasons of the Medical Assessor must not be scrutinised in a final or minute manner and the Medical Assessor did not need to provide extensive reasons for each finding because he was only required to explain the actual path of his reasoning leading to his decision. The respondent submitted that the Medical Assessor reviewed all the evidence relating to the appellant’s pre-existing and current condition and formed his own clinical opinion taking into consideration the evidence, and made a deduction for the proportion of the appellant’s permanent impairment due to the pre-existing condition. The respondent submitted that the Medical Assessor clearly demonstrated his path of reasoning for making a deduction of 25%.
The respondent submitted that the Medical Assessor was correct to conclude that the appellant had a condition that pre-dated her work injury.

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.
Section 323(1) of the 1998 Act requires a Medical Assessor, when assessing the degree of permanent impairment a worker has from an injury, to make a deduction for any proportion of impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. Hence, in order that s 323(1) can be engaged the appellant must have had a condition immediately before she suffered her injury on 18 July 2008, which now makes up a proportion of the permanent impairment she has from that injury.
The Appeal Panel does not accept the appellant’s submission that the CT scan that was done on 15 January 2009 of her lumbar spine revealed pathology caused by her injury rather than a pre-existing condition. That investigation was done within six months of her suffering injury. It revealed degenerative changes at the appellant’s L4/5 and L5/S1. Given the investigation was done around six months after the appellant suffered her injury, the degeneration the investigation revealed necessarily was existing in the appellant’s lumbar spine at the time she suffered injury. The degeneration could not have developed within six months. That degeneration caused moderate narrowing of the appellant’s spinal canal at L4/5 and slight narrowing of her spinal canal at L5/S1. The Medical Assessor was correct to conclude, based on the report of that investigation, that the appellant had pre-existing L4/5 and L5/S1 facet arthrosis and degenerative spondylolisthesis at L4/5 and L5/S1.
The pre-existing degeneration the appellant had at L4/L5 and L5/S1 progressed in accordance with its normal pathological course, and that is confirmed by the several subsequent radiological investigations that were done, the key findings of which the Appeal Panel has detailed above within “relevant factual background”.
The appellant’s injury aggravated and made symptomatic the degeneration in her L4/5 and L5/S1 and also resulted in bulging of her disc at those levels.
The necessity of the appellant’s surgery on 4 November 2016, in the form of a laminectomy at L4/L5, and her subsequent surgery, in the form of a laminectomy and surgical fusion of the L4/5 and L5/S1, was the consequence of her pre-existing condition in her L4/L5 and L5/S1 spine and its normal pathological progression as well as the symptoms that her injury generated from her pre-existing condition and the bulging of her disc. Without the appellant’s pre-existing degeneration at L4/L5 and L5/S1 she would not have needed surgery.
Simply said, the surgeries the appellant had were necessitated both by the pre-existing degeneration at L4/5 and L5/S1 and its natural pathological progression and the appellant suffering her injury.
The Medical Assessor assessed the degree of the appellant’s permanent impairment relating to her lumbar spine by reference to the criteria provided for DRE IV in Table 15-3 on AMA5. He did so because the appellant had loss of motion segment. That was due to the spinal fusion she had, which as the Appeal Panel has said, the appellant required due to the degeneration she had L4/5 and L5/S1 and her injury. Further, in accordance with Table 4.2 of the Guidelines a further 3% WPI was added on account of the appellant having had two surgeries and having had surgery on two levels of her spine.
The Medical Assessor was required to engage s 323(1) if the appellant’s pre-existing condition contributes causally to the level of impairment the appellant has as a consequence of her injury on 18 July 2008.[5] To determine whether s 323(1) was to be engaged, the Medical Assessor was thus required to consider the relevant evidence so as to establish whether the appellant’s pre-existing condition contributes to the appellant’s level of impairment from her injury as at the date he assessed that impairment.
[5] Cole at [16]; Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) at [45]; Southwell v Qantas Airways Ltd [2024] NSWSC 497 at [63].
The Appeal Panel considers that it is apparent from the MAC, when read as a whole, that the Medical Assessor did this. The Medical Assessor had regard to and therefore considered the reports on the relevant radiological scans that had been done of the appellant’s lumbar spine. He also detailed the criteria by reference to which he assessed the degree of the appellant’s permanent impairment relating to her lumbar spine, which as the Appeal Panel has observed related to and therefore was based on the two surgeries the appellant had. Those surgeries were the consequence of her pre-existing condition, and the natural pathological progression of that, and her injury.
The Appeal Panel therefore considers that the Medical Assessor has adequately exposed his reasoning for engaging and making a deduction under s 323(1).
By way of emphasis, the Appeal Panel notes that absent the appellant having her pre-existing condition, she would not have needed the surgeries she had and consequently would not have had the level of impairment she currently has. Her pre-existing condition consequently has made a difference to the degree of permanent impairment she now has, which, as said, has been assessed based on those surgeries. Her degree of permanent impairment is consequently greater now as a consequence of her having a pre-existing condition.
The Appeal Panel also considers that the Medical Assessor did not make an error by not assuming, pursuant to s 323(2) of the 1998 Act, that the deductible portion for the purpose of s 323(1) is 10%. This is because, as the Medical Assessor explained, to have made that assumption would have been at odds with the evidence. This also is understood when the MAC is read as a whole. The evidence rendering that assumption wrong consists of the reports on the radiological investigations which revealed the appellant had moderate degeneration preceding her injury at L4/5 and L5/S1, which progressed in accordance with its normal pathological course, and which ultimately, in combination with the appellant suffering symptoms due to the aggravation of the degeneration by virtue of her injury and the bulging of her discs she suffered from her injury, necessitated the surgeries she had by reference to which the level of her permanent impairment has been assessed.
The Appeal Panel interprets the Medical Assessor’s observation that the appellant achieved some symptomatic improvement after the L4/5 laminectomy in November 2016 but subsequently developed further back pain and left sciatica resulting in her having a posterior L4/5 and L5/S1 decompression laminectomy and posterior lateral fusion, was made to distinguish the deduction he made from the deduction A/Prof Courtenay made. The Medical Assessor in substance was indicating that despite initial surgery providing the appellant with some relief she nevertheless still required further and subsequent surgery. It is apparent when his observations are read in context, specifically when considering the deduction
A/Prof Courtenay made, that the Medical Assessor was of the view, having regard to the appellant’s progression of symptoms and the surgery she had, that weighing the contribution of her pre-existing condition to her current level of impairment as 50%, as A/Prof Courtenay had done, was excessive.
In the Appeal Panel’s view, the authorities of Oakley and Johnson have no relevance to this case. Those cases dealt with an initial injury followed by subsequent injury. That is not this case.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 July 2024 should be confirmed.

[2024] NSWPICMP 761

6 November 2024