Hall v Lindsay Brothers Management Pty Ltd
[2024] NSWPICMP 36
•25 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hall v Lindsay Brothers Management Pty Ltd [2024] NSWPICMP 36 |
| APPELLANT: | Adam Hall |
| RESPONDENT: | Lindsay Brothers Management Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 25 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for impairment of the lumbar spine and digestive system following injury to lumbar spine on 4 October 2018; worker appealed deduction of one half under section 323 made in respect of the digestive system; Panel satisfied that Medical Assessor erred in not considering symptoms of the pre-existing condition at time of injury and following bariatric surgery; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 October 2023, Adam Hall (Mr Hall) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
22 September 2023.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 (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 Hall sustained an injury to his lumbar spine on 4 October 2018 in the course of his employment as a truck driver when he tried to undo the pin connecting the trailers on a B-Double.
On 2 February 2023, Mr Hall commenced proceedings in the Personal Injury Commission in which he made a claim for lump sum compensation for 15% whole person impairment (WPI) in respect of his lower back and digestive system as a result of the injury on 4 October 2018.
The matter was referred to the Medical Assessor Tim Anderson, on 28 July 2023 for assessment of WPI of the lumbar spine and digestive system.
The Medical Assessor examined Mr Hall on 31 May 2023 and assessed 7% WPI of the lumbar spine and 15% of the digestive system. The Medical Assessor made a deduction of one half pursuant to s 323 of the 1998 Act in respect of the digestive system which resulted in an 8% WPI of the digestive system. The combined total was 14% WPI.
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.
The appellant did not request that he be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent submitted that re-examination was not necessary.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Hall 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 Medical Assessor 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 Medical Assessor that are relevant to the appeal are set out, where relevant, 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.
The appellant’s submissions included the following:
(a) Mr Hall accepted the 15% impairment finding of the lower digestive system. However, Mr Hall refuted that there should have been a 50% deduction for the impairment. The deduction should have been 1/10th, consistent with the legal approach to be taken to s 323 of the 1998 Act;
(b) the circumstances of the accident were adequately set out in the MAC. Mr Hall was overweight, but participating in a heavy system of work. The Medical Assessor was not persuaded that there should be any deduction for the impairment of his lower back.The Medical Assessor’s finding was correct, as it concerned the back, however, his conclusion concerning the deduction made in respect of digestive system was not correct. This was principally because he did not look at the symptoms Mr Hall was complaining of at the time, as compared to following the surgery;
(c) it may be accepted that Mr Hall’s weight was an “issue” prior to the injury. However, the parties accepted that Mr Hall’s weight condition, requiring surgery, was aggravated/exacerbated following the accident (see Dr Greenberg’s reports, together with Dr Frommer’s report);
(d) the Medical Assessor reached a similar conclusion. He said (pg 5): “[The back condition] has included the use of medication, which unfortunately has resulted in gastro-intestinal dysfunction. He currently has significant gastro-oesophageal reflux, which can be most troublesome. There is a necessity to continue with anti-inflammatories, which also makes this condition worse. This is only partially alleviated by anti-H2 (gastrointestinal) medication. It has been established that the gastro-intestinal features have arisen since the bariatric surgery…..”;
(e) the finding was correct. The employer took the worker as they found him. However, the employer also bore the consequences of any additional impairment to his pre-existing condition and/or susceptibility to a development of a further condition (including surgery): State Government Insurance Commission v Oakley (1990) 10 MVR 570. That being the case, the deduction could never be 50%. It would essentially neutralise the position in Oakley;
(f) the deduction in this case could only have been 1/10th. It was plainly impossible to accurately work out the extent of the deduction precisely;
(g) it must be recalled that the relevant pre-existing condition must have actually contributed to the current impairment: Cole v Wenaline Pty Ltd [2010] NSWSC 78, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 and Fire and Rescue v Clinen [2013] NSWSC 629;
(h) Mr Hall was not symptomatic at the time of the accident. He was 36. He had not undergone surgery, nor required extensive medication as a result of any physical injury, or surgery, and
(i) the deduction of 50% was erroneous. It should have been 1/10th.
The respondent’s submissions included the following:
(a) the Medical Assessor applied a 50% deduction for the digestive system on grounds the bariatric surgery resulting in gastrointestinal issues was performed for control of Mr Hall’s gross excess weight, which the Medical Assessor noted was already in existence long before Mr Hall’s workplace injury;
(b) Mr Hall’s interpretation of s 323 of the 1998 Act was much narrower than what was provided for by the section. The presumption that a deduction of 10% was to be applied was only applicable after the assessor first determined that assessing the extent of a deduction for pre-existing impairment would be too difficult or costly;
(c) the Medical Assessor provided a detailed explanation for the extent of his deductions as required by s 323 at page 7 of the MAC. In providing his assessment and deduction, it was clear the Medical Assessor did not consider it to be too difficult or costly to determine the relevant deductions;
(d) the Medical Assessor’s explanation of such deductions was adequate, including the history taken of Mr Hall’s weight prior to the workplace injury and his opinion that a “substantial component” of the gastrointestinal condition associated with the surgical procedure was of a constitutional nature. The Medical Assessor assessed Mr Hall’s permanent impairment, including the application of a deduction under s 323 of the 1998 Act, properly and in accordance with all requirements;
(e) in Cole v Wenaline Pty Limited [2010] NSWSC 78, Schmidt J set out the process a Medical Assessor was required to adopt in making a deduction for pre-existing conditions. The Medical Assessor correctly applied the relevant test in his application of s 323 of the 1998 Act. He had identified the fact that Mr Hall was already grossly overweight with a body mass index of 46, which he states was “really quite colossal”;
(f) in his report dated 28 March 2023, Dr Frommer provided an opinion that the bariatric surgery was reasonably necessary as a result of pre-existing and non-work related morbid obesity in order to reduce the risk associated with obesity;
(g) it was open to the Medical Assessor to come to the view that a 50% deduction was applicable under s 323 of the 1998 Act when assessing the digestive condition. He had available all evidence contained within the Application to Resolve a Dispute (ARD) and Reply as well as his clinical judgement based on his examination of Mr Hall;
(h) the Medical Assessor’s findings on this issue did not contain a demonstrable error and were not made on the basis of an incorrect criteria. The MAC did not contain a demonstrable error and the Medical Assessor’s assessment was not based on incorrect criteria, and
(i) the appeal should be dismissed and the MAC 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.
Assessment of the digestive system
The appellant submitted that the deduction of one half pursuant to s 323 of the 1998 Act was erroneous and the deduction should have been one tenth.
The Medical Assessor noted under “History relating to the injury” that at the time of the work injury Mr Hall was already very overweight with a weight of 180kg and over the next few months it crept up to 210kg. The Medical Assessor wrote:
“He was seen by a variety of specialists including Specialist Neuro-surgeon, Dr John Christie. The issue of his excess weight was raised and he was advised that there was a need to substantially reduce his excess weight for his clinical conditions. He has always found weight control extremely difficult.
He came under the care of Specialist Upper Gastro-intestinal Surgeon, Dr Nigel Peck. After further deliberation, it was considered that a gastric sleeve bypass would be the most appropriate way of carrying out bariatric surgery to help Mr Hall. Mr Hall agreed to this and the surgical procedure was conducted on 25/06/19. This does seem to have given him some improvement in the control of his weight, although there have been other side effects, particularly with his upper gastro-intestinal system and to a lesser extent, the lower system.”
The Medical Assessor noted under “Present symptoms”:
“Gastro-oesophageal reflux disease which can be severe. He mentioned that on
occasions, he feels that food is just not going down.
With the bowels, he occasionally varies between diarrhoea and constipation.”
Under “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor wrote:
“Attention is drawn to Mr Hall’s difficulty with weight control, which has been in existence for many years, When this event occurred, his weight was 180kg. With his current height of 1.96m, this would have given him a BMI of 46. This is excessively overweight. His current weight was 160kg. This gives him a body mass index of 41. This is still very excessively overweight. The upper level of healthy BMI is 25. In order to achieve this, he should be no more than 96kg. Therefore, at the time of this event, he was 84kg over the upper level of his ideal weight and currently is 64kg over this ideal weight.”
Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“Mr Hall gives a history of hurting his lower back nearly five years ago, in early October 2018. This appears to have been an aggravation of a hitherto asymptomatic degenerative change focus in the lower lumbar spine. The condition has subsequently been managed conservatively.
This has included the use of medication, which unfortunately has resulted in gastrointestinal dysfunction. He currently has significant gastro-oesophageal reflux, which can be most troublesome. There is a necessity to continue with anti-inflammatories, which also makes this condition worse. This is only partially alleviated by anti-H2 (gastrointestinal) medication.
It has been established that the gastro-intestinal features have arisen since the bariatric surgery.
Despite the earlier successes of weight loss, Mr Hall still has a very long way to go to achieve anything like even the upper level of healthy BMI.”
Under “ Evaluation of Permanent Impairment” at 8.f of the MAC, when indicating the body system affected by a pre-existing condition, the Medical Assessor wrote: “Attention is drawn to the extensive pre-existing difficulties which Mr Hall has experienced for many years in trying to control his weight”.
The Medical Assessor under “Reasons for Assessment” wrote:
“Digestive System. Mr Hall continues to have gastrointestinal dysfunction, which has
followed the bariatric surgery. The gastro-oesophageal reflux disease is his major concern. The condition is aggravated by the use of anti-inflammatories and he feels that he has very little option but to continue taking these and also to try to minimise the gastro-intestinal condition with anti-H2 (gastro-intestinal) medication.
His bowel actions can vary between diarrhoea and constipation.
The condition of his digestive system is further addressed in AMA 5 Page 121, Table 6-3. Since Mr Hall continues to have dysfunction after “surgical procedures”, this excludes him from being assessed in Class I and he is therefore assessed in Class II. With his features, he would reasonably be in the mid-range. 15% is therefore selected as appropriate.”
The Medical Assessor under “Deduction (if any) for proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” wrote:
“With the gastro-intestinal condition, although it is very obvious that since the bariatric surgery, he has experienced a variety of quite troublesome conditions with his gastro-intestinal system, the fact remains that the bariatric surgery was performed for control of his gross excess weight, which was already in existence (very significantly so) long before the development of this lower back condition. Attention is drawn that at the time of this injury, his body mass index was already 46, which is really quite colossal. (Even now, it is still 41.) Therefore, I am persuaded that a substantial component of the gastro-intestinal condition associated with the surgical procedure is of a constitutional nature. To that end, there is the application of a deduction of half of this impairment. Specialist Gastro-intestinal Surgeon, Dr Anthony Greenberg deducts one-third, although I believe half is more appropriate. This therefore reduces the whole person impairment of the gastro-intestinal system from 15% down to 7.5%, which is rounded up in his four [sic] to 8%”.
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%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4)The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [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 …That is a matter of fact to be assessed on the evidence led in each case.”
The assessor must point to the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributes 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].”
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. 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.”
In Fire and Rescue v Clinen [2013] NSWSC 629, Campbell J said:
“32. As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a preexisting 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.
33. This case is a little different from Cole. There Schmidt J was concerned with the causal connection connoted by the phrase "due to". Her Honour made the pertinent observation that it was 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. Here, as Mr. Edwards pointed out, I am concerned with a logically anterior question: did the evidence of Dr. Shumack, which the appeal panel seemed to accept, that there was exposure to the sun in the worker's early years, mandate a finding of pre-existing condition or abnormality within s 323 WIM as the only legally sustainable conclusion? In my judgment, it did not.
34. The analysis of Giles JA in Smart, to which I have referred, supports a legal distinction between a medical condition and the circumstance giving rise to it. The meaning of ‘condition’ in ordinary language may extend to include a prerequisite to something else. The worker's exposure to sunlight in his youth, in that broad sense, is a pre-existing condition. But the word ‘condition’ in the present statutory context, in my judgment, has a more limited meaning. In the context of legal causation, as with the meaning of the phrase ‘due to’, one may refer to any one of the necessary ‘conditions’ giving rise to a consequence as a cause, or prerequisite, of it. As a matter of causation, the worker's skin cancer is due to his exposure to sunlight, including during his youth before the commencement of his employment with the employer. But causation is not the presently relevant context.
35. The context here is provided by s 323 and arises from the juxtaposition of words ‘previous injury’, with ‘pre-existing condition or abnormality’. The natural meaning in that restricted context of ‘condition’ is ‘medical or like condition’ in the sense of a diagnosable, or established, clinical entity c.f. Simeon Wines Ltd v. Bobos [2004] NSWCA 342 at [17] per Sheller JA, Santow JA and Young CJ in Eq. (as he then was) agreeing. This, in effect, is what the medical appeal panel decided in the portion of its reasons set out above at [15]. This conclusion involves no jurisdictional error in the sense of either identifying a wrong issue, or posing the wrong question; or error of law on the face of the record, by misapplying the law. Far from being an error of law at Glass JA's third stage, in my view the appeal panel's decision was not only legally open, but also legally correct. For what it is worth, the contrary conclusion, for which the employer contended before the appeal panel was not open on the evidence as the appeal panel, in my view correctly, decided.”
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality”.
To establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition. The Medical Assessor found that Mr Hall pre- injury had a grossly excessive weight or was obese. Following the work injury, Mr Hall’s weight crept up to 210kg. Mr Hall then underwent bariatric surgery and his weight dropped down to 160kg.
Mr Hall submitted that a deduction of one tenth was appropriate. Mr Hall argued that the Medical Assessor did not look at the symptoms Mr Hall was complaining of at the time, as compared to following the surgery. In particular, Mr Hall submitted that his weight condition, requiring surgery, was aggravated/exacerbated following the accident.
Dr Anthony Greenberg, in his report dated 27 January 2023, noted that Mr Hall said:
“While I was certain overweight prior to being injured, I led a very normal life., my fitness was good and was able to undertake most tasks with no thought. After I was injured, I stacked on weight and was entirely unable to exercise and for the best part the most basic daily functions were extremely difficult.”
Dr Greenberg noted that Mr Hall had recognised adverse gastrointestinal events following bypass surgery . Dr Greenberg assessed 15% WPI (Class 2 table 6.3 AMA 5 p121) and deducted 5% WPI on the basis that Mr Hall was “morbidly obese prior to his injury however the subsequent injury to the lumbar spine was the precipitating event for his subsequent weight gain and need for bariatric surgery”.
Dr Donald Frommer, in his report dated 28 March 2023, made a diagnosis of post-operative gastro-oesophageal reflux disease (GORD) and bowel symptoms that started shortly after the bariatric surgery. He considered that the bariatric surgery was reasonably necessary as a result of the back injury on 4 October 2018 because excessive weight was a factor in prolonging pain in vertebral column injuries and Mr Hall had stated that the weight loss following the operation had helped his pain. Dr Frommer did not consider that Mr Hall was at maximum medical improvement. He stated that he agreed with the opinion generally of
Dr Greenberg.Mr Hall submitted that an employer bore the consequences of any additional impairment to his pre-existing condition and/or susceptibility to a development of a further condition (including surgery) referring to the decision of State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley).
Malcolm CJ in Government Insurance Commissions v Oakley [1990] WASC 12
(17 January 1990) (Oakley) identified three categories where the issue of causation involved consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury and the assessment of damages consequential upon an earlier injury. His Honour adopted the following statement of principle:“In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of the aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
In Nicol v Macquarie University [2018] NSWSC 530 (Nicol) Harrison AsJ found that the principles applicable in that case were those where a second and subsequent injury caused greater damage because of the existence of an earlier injury.
The common law principles of causation in tort are to be applied in workers compensation cases. However, the statement of principle set out in Oakley applies to the first tortfeasor or in workers compensation disputes to claims in respect of the first injury where there was a subsequent injury. However, the principle set out in Oakley applies to an assessment of the earlier injury and not to the situation such as in this case where is no injury due to a later or subsequent accident.
The Appeal Panel, however, accepted Mr Hall’s submission that the Medical Assessor did not look at the symptoms Mr Hall was complaining of at the time of the injury, as compared to following the surgery. The Medical Assessor did not take a history that looked at Mr Hall’s functioning pre-injury although he did note that Mr Hall had always been keen on the outdoor life and previously was involved in kayaking and camping but could not do that now. While Mr Hall was clearly obese at the time of the injury, Mr Hall told Dr Greenberg that he led a normal life and his fitness was good and that it was after the injury that he was unable to exercise and he put on weight. The Appeal Panel considered that the Medical Assessor made a demonstrable error in not providing adequate reasons for making a one half deduction for a pre-existing condition, which appeared to be asymptomatic and did not impact on Mr Hall’s functioning pre-injury.
Having found error, the question in this case was what deduction, if any, should be made for any proportion of the impairment that is due to the pre- existing condition. Mr Hall submitted that the deduction in this case could only be one tenth and it was plainly impossible to accurately work out the extent of the deduction precisely.
The Appeal Panel accepted that it was difficult to determine the deduction but considered that a deduction one tenth was not at odds with the evidence.
Therefore, the Appeal Panel assessed Mr Hall as having 15% WPI of the digestive system and deducted one tenth pursuant to s 323 of the 1998 Act, that is 1.5% which resulted in 13.5% which was rounded up to 14% WPI for the digestive system.
Therefore, the Appeal Panel assessed Mr Hall as having 7% WPI of the lumbar spine and 14% WPI of the digestive system. The final combined WPI was 20% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 September 2023 should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4642/23 |
Applicant: | Adam Hall |
Respondent: | Lindsay Brothers Management Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Lumbar spine | 4/10/18 | Chap 4 P24 | P384 T15-03 | 7 | 0 | 7 |
| 2.Digestive System | 4/10/18 | Chap 16 P 78 | P121 T 6-03 | 15 | 1/10th | 13.5 rounded up to 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 20 | |||||
0
10
0