Halliday v MRVL Investment Pty Ltd
[2025] NSWPICMP 361
•23 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Halliday v MRVL Investment Pty Ltd [2025] NSWPICMP 361 |
| APPELLANT: | Stuart Halliday |
| RESPONDENT: | MRVL Investment Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 23 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); referral for assessment of the thoracic spine and lumbar spine as a result of an injury; Medical Assessor (MA) decided that there was no injury to the lumbar spine and made no assessment of the lumbar spine; Held – Appeal Panel satisfied that MA had no jurisdiction to determine injury of the lumbar spine and made a demonstrable error in not making an assessment of the lumbar spine; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 April 2025 Stuart Haliday (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
13 February 2025.The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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
The appellant suffered an injury to his lumbar spine and thoracic spine in the course of his employment with MRVL Investments Pty Ltd (the respondent) when lifting a table out of an elevator on 27 July 2018.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming medical expenses and 38% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of an injury to the lumbar spine and thoracic spine on 27 July 2018.
In a Certificate of Determination – Consent Orders dated 16 January 2025 Member Jacqueline Snell made the following orders:
“1. The applicant's claim for medical expenses payable under s 60 of the Workers Compensation Act 1987 is discontinued.
2. The applicant's claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is remitted to the President for referral to a Medical Assessor (agreed specialty is orthopaedic surgery) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a. Date of injury: 27 July 2018
b. Body parts: lumbar spine (agreed)
thoracic spine (agreed)
c. Method of assessment: whole person impairment
3. The documents to be reviewed by the Medical Assessor are:
a.Application to Resolve a Dispute and attached documents (with pages 75 to 82 removed from the bundle), and
b.Reply and attached documents.”
The Medical Assessor examined the appellant on 29 January 2025. The Medical Assessor assessed 22% WPI of the thoracic spine and deducted 2/10ths pursuant to s 323 of the 1998 Act which resulted in an assessment of 18% for the thoracic spine. The Medical Assessor assessed 0% WPI of the lumbar spine and wrote in Table 2: “This injury did not happen on 27/7/2018”.
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 submits that re-examination is not warranted in this matter, but accepts it is a question for the Appeal Panel.
The respondent considers a re-examination of the appellant is required.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient information on which to make a decision.
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 include the following:
(a) the MAC contains a demonstrable error in that the Medial Assessor failed to assess the WPI of the appellant's lumbar spine;
(b) the Application to Resolve a Dispute (ARD) sought compensation pursuant to s 66 in respect of impairment to thoracic spine and lumbar spine;
(c) on 16 January 2025 Member Jacqueline Snell by consent remitted the claims for impairment to lumbar spine and thoracic spine to the President for referral to a Medical Assessor;
(d) the s 66 claim was based on the opinion of Professor Carter, qualified for the appellant. The respondent has not denied injury to lumbar or thoracic spine. The dispute notice of 6 March 2019 (ARD page 6) was confined to the (later discontinued) treatment expenses claim;
(e) the primary assessments of impairment were identical. Professor Carter assessed DRE category IV of the thoracic spine at 20% WPI and DRE category IV of the lumbar spine at 20% WPI plus 2% ADL which totalled 38% WPI. Dr Powell for the respondent assessed DRE category IV of the thoracic spine at 20% WPI plus 1% ADL and DRE category IV of the lumbar spine at 29% WPI which totalled 37% WPI. Dr Powell applied a 50% deduction pursuant to s 323 of the 1998 Act which resulted in a final assessment of 19% WPI by Dr Powell;
(f) the true difference of medical opinion was as to the application of s 323 and the difference of 1% in respect of ADLs. The absence of a liability dispute was reflected in the terms of the COD dated 16 January 2025. By that time the only issue to be determined (as reflected in the COD) was the assessment of WPI. This was the medical dispute (s 319(c) 1998 Act) eventually referred by the President to the Medical Assessor;
(g) contrary to the terms of the referral and outside the jurisdiction vested in him by 1998 Act, the Medical Assessor decided at Parts 7 and 10 of his reasons (MAC pages 4 and 5) that there had been no injury to the lumbar spine and as a result failed to assess it;
(h) this was erroneous for several reasons. The first is that the lumbar injury had been accepted by the respondent and was not the subject of a dispute, let alone a medical dispute. The second is that the referral of the Commission was to assess impairment (not to determine injury). The third is that the Medical Assessor had no jurisdiction to decide a question of liability.
(i) there is unanimity between Professor Carter, Dr Powell and Dr Mellick that there is a 20% WPI of the thoracic spine. The appellant does not seek to have this part of the MAC set aside. Nor does he challenge the Medical Assessor's finding of 2% WPI for ADLs. He does not challenge the finding of a 20% apportionment pursuant to s 323;
(j) there is unanimity between Professor Carter and Dr Powell that there is a 20% WPI of the lumbar spine. There is no reason in principle why the Appeal Panel would not apply the 20% s 323 apportionment to the lumbar impairment adopted by the Medical Assessor in respect of the thoracic impairment;
(k) the MAC contains a demonstrable error, insofar as the Medical Assessor has failed to assess the WPI of the appellant's lumber spine;
(l) the appellant seeks the following orders:
(i)that part of the MAC relating to the assessment of the thoracic spine is confirmed;
(ii)that the Medical Assessor's finding that there was no injury to the lumbar spine be revoked;
(iii)that the WPI of the appellant's lumbar spine be assessed at 20%, less an apportionment of 20% pursuant to s 323 of the 1998 Act, and
(iv)that a MAC be issued certifying a 30% WPI of lumbar spine and thoracic spine.
The respondent ‘s submissions include the following:
(a) the Referral for Assessment of Permanent Impairment to Medical Assessor, dated 16 January 2025 detailed the medical dispute which had been referred for assessment. This included the degree of permanent impairment of the worker as a result of an injury, whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, whether impairment is permanent and/or whether the degree of permanent impairment of the injured worker is fully ascertainable;
(b) questions of causation are not foreign to medical disputes within the meaning of such term when used in s 319 of the 1998 Act. For instance, assessing the degree of permanent impairment ‘as a result of an injury’, and whether any proportion of permanent impairment is ‘due to’ any previous injury or pre-existing condition or abnormality, both call for a determination of a causal connection (Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264);
(c) in the MRI scan dated 25 September 2018 (page 23 ARD) there was no indication of a compression fracture at L3. The CT scan report from
7 November 2018 (page 27 ARD) (four months post-injury) indicated a significant compression fracture at L3 (lumbar), with a loss of 70% to 80% vertebral body height, which was described as "most probably osteoporotic insufficiency fractures." This was a notable finding, suggesting a compression fracture at the L3 level, in contrast to the MRI report, which did not identify a fracture at L3;(d) the Medical Assessor at page 5 of the MAC stated that the “compression fracture at the L3 level occurred much later and should be regarded to be caused by the reduced bone density resulting from the osteoporosis and not because of the injury that occurred on 27/7/2018”. The position of the Medical Assessor was that permanent impairment of the lumbar spine was not the "result of an injury" and was due to preexisting osteoporosis, which is permitted under s 319 and within the scope of the referral;
(e) the Medical Assessor explained clearly the actual path of his reasoning that the compression fracture at the L3 level occurred much later and any impairment should be regarded as being caused by the reduced bone density resulting from the osteoporosis and not because of the injury on 27 July 2018. Whilst an "injury" to the lumbar spine, per se, was accepted by the respondent, such acknowledgment does not extend to the idea that the respondent is liable for every vertebral body or impairment of any nature throughout the lumbar region;
(f) “injury” refers to “both the [injurious] event and the pathology arising from it”: see Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423. By referring to the degree of permanent impairment “that results from an injury” the Medical Assessor must engage with the process or the manner of assessment of permanent impairment that results from a “pathology”. If, in the event, the Medical Assessor does not believe the pathology results in impairment, it is open to determine that there is no injury for the purposes of impairment assessment;
(g) the Medical Assessor, whilst considering all the material before him, gave pre-eminence to his clinical observations at the time of the assessment and exercised his judgment as to the significance of the radiology and the pre-existing history. While a Medical Assessor may have regard to the other medical opinions, he or she are not bound by those opinions and are entitled to rely upon their own assessment. Accordingly, the fact that Professor Carter and/or Dr Powell assessed a base 20% WPI (without deduction) for the lumbar spine does not compel the Medical Assessor to adopt or follow such approach;
(h) the appellant has failed to establish that the MAC contained a demonstrable error and the MAC should be confirmed, and
(i) in the alternative, it is submitted that should the Appeal Panel find impairment in the lumbar spine, there should be a deduction of one-half (50%) to reflect the extent of the pre-existing pathology as suggested by Dr Powell. This is somewhat in keeping with the comments of Professor Carter at page 3 of his report related to his assessment of apportionment for treatment expenses – “50/50 split” - “due to the pre-existing osteoporosis”. Anything else would be at odds with the evidence.
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.
Failure to assess the lumbar spine
The appellant submits that the MAC contains a demonstrable error in that the Medial Assessor failed to assess the WPI of the appellant's lumbar spine.
In the MAC under “Findings on physical examination” the Medical Assessor wrote:
“On examination, Mr Halliday gave a clear history and exhibited no abnormality of cognition or mood.
There was no abnormality of the normal rhythm of gait or of accessory upper extremity or truncal movements.
He was able to assume the seated position on the examination couch with hips flexed and knees extended and appeared in discomfort in that position. Straight leg raising on the left side was limited to 60° and on the right to 60°. There was a thoracolumbar kyphosis and some tenderness on palpation upper lumbar spine and lower thoracic spine.
There were no abnormalities of contour, posture, tone, power production or coordination in the lower extremities. The knee jerks, ankle jerks, hamstring jerks and adductor jerks were normal and the plantar responses were flexor.
On sensory testing of the spine and right lower extremity, there was an area of altered sensation corresponding to the symptoms in the outer aspect of the left thigh. There was altered sensation to light touch, temperature and pinprick in the distribution involving the lateral femoral cutaneous nerve involving mild dysesthesiae on light contact.
In the standing position, forward flexion reached to the mid lower leg in the midline, lateral flexion to right and left was performed symmetrically and extension was performed over an unrestricted range. Spinal movements were not associated with the production of referred pain or other symptoms into the lower extremities.”
In the MAC under “summary of injuries and diagnoses”, the Medical Assessor wrote:
“The injury that occurred on 20/7/2018 has resulted in compression fractures at the T12, L1 level.
The L3 fracture was not caused by that injury having been identified on
7 November 2018 by Dr Sesel. He considered the fracture to be of osteoporotic origin. That is in accord with the radiological, neurological and endocrinological evidence. See further relevant comment elsewhere in this report.”The Medical Assessor at page 5 of the MAC under “Reasons for Assessment” wrote:
“There is assessable whole person impairment because of compression fractures at the T12, L1 level corresponding with the clinical history of pain occurring in close temporal relationship with the injury which occurred on 27/7/2018”.
The compression fracture at the L3 level occurred much later and should be regarded to be caused by the reduced bone density resulting from the osteoporosis and not because of the injury that occurred on 27/7/2018.
Because of the pre-existing osteoporosis, the assessment includes a two-tenth deduction as the magnitude of the fracture which occurred on 27/7/2018 is influenced by the pre existing osteoporosis.”
In commenting on the other medical opinions, the Medical Assessor noted:
“It is noted that Dr Powell suggests a 50% deduction because of the osteoporosis on page 8 of his report dated 27/11/2018. With respect, I would regard that to be excessive. Mr Halliday was entirely asymptomatic and performing his preinjury work
until 27/7/2018. It is clear that osteoporosis was present for some time and it had been entirely asymptomatic. It has certainly contributed to weakening of the vertebrae. A 2/10 deduction is appropriate, not a 50% reduction.
The L3 fracture was not identified until 7 November 2022. There is also no reported injury on or near that date. Osteoporosis carries a risk of spontaneous compression fractures occurring in association with normal day to day activities. The L3 fracture should be regarded to have been due to the osteoporosis but not to have been caused by the injury that occurred on 27/7/2018.
…
I draw attention to a report prepared by Profession Terry Diamond, Endocrinologist and specialist in metabolic bone disease who refers in his letter of 8 January 2019 to a background of severe osteoporosis. The doctor also refers to an 80% compression fracture of L3 together with wedging of vertebrae between T2 and TB as well as L2 and
A report dated 12 November 2018 from Dr Scholsem in the second paragraph makes reference to a CT performed on 6 November showing ‘a new L3 vertebral body fracture...’ and mentions a 70% vertebral body loss.
One of the consequences of osteoporosis is the occurrence of spontaneous fractures because of the weakness of the bone. Dr Carter's letter accordingly draws attention to compression fractures occurring in association with osteoporosis without any specific history of trauma in proximity to the time of the identification of the fracture at L3. Dr Carter writes in answer to question 9 on page 3 the following, ‘the bone density studies indicate that there was a marked reduction in bone density immediately after the injury on 27 July 2018. The X-rays revealed acute fractures of T12, L1 and L3 and almost certainly mild wedging of T2-8 was present prior to the accident. I am in agreement with the doctor's comment regarding wedging prior to the accident which occurred on 27 July 2018 as a result of the ‘marked reduction in bone density’. That reduction in bone density should be regarded to have long predated the injury that occurred on 27 July 2018.
Nevertheless he experienced the injury on 27/7/2018 and the T12/L1 radiological abnormalities correlate with the injury. However a deduction certainly applies and has been taken into account in the WPI assessment.”
On page 7 of the MAC, the Medical Assessor wrote:
“Mr Halliday suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
The osteoporosis is long standing and is a metabolic condition predating the injury on 27 July 2018 and contributing to the compression fractures on 27/7/2018.
I propose a 2/10 deduction.”
On 16 January 2025 the claim was remitted by consent to the President for referral to a Medical Assessor for assessment of WPI of the lumbar spine and thoracic spine. The s 66 claim was based on the opinion of Professor Carter qualified for the appellant. The respondent has not denied injury to lumbar or thoracic spine.
In a report of MRI scan lumbar spine dated 25 September 2018 (page 23 ARD) Dr John Bamidele, radiologist, reported the clinical history as “Acute back pain with radiation into left thigh ? L3 impingement.” He found severe anterior wedge compression fractures at T12/ L1, with greater than 70% loss of vertebral body height at those levels. The discs at L2/3, L3/4, and L5/S1 were noted to be normal in height, and there was no mention of a fracture at the L3 level. The report also described mild disc issues and bulging at L4/5.
A number of investigations were carried out on 6 November 2018. Dr Kenneth Sesel, radiologist, reported on 8 November 2018 that the EOS study showed significant wedge compression fractures T12 and L1 between 90-95% and biconcave significant compression fracture L3 about 70-80% most probably osteoporotic insufficiency fractures.
In the CT scan report of 7 November 2018 (page 27 ARD) Dr Jules Comin, radiologist, wrote:
“There is severe crush fracturing of the T12/L1 and L3 vertebrae with more mild crush/insufficiency fracturing of the L2 vertebra and also T2, T3, T4, T5, T6 , T7 and T8.
The major fractures are as follows:
T12: Minimal vertebral body height is 13mm which reflects a fracture of around 50% severity…
L1: Minimal vertebral body height is 5mm which reflects a fracture severity of greater than 75%...
L3: The minimal vertebral body height is 9mm which reflects a fracture severity of around 70% severity…”
In a report of Whole Bode Scan dated 9 November 2018, Dr Edwin Szebo expressed the opinion that there were “Recent T12, L1 and L3 vertebral compression fractures and likely L2 superior endplate fracture”.
Professor Carter, consultant endocrinologist, in his report of 27 September, expressed the view that the investigations and documentation strongly suggested that the major vertebral fractures (T12, L1, L3) were caused by the accident on 27 July 2018, as described above. He assessed permanent impairment as follows:
“The NSW Workers’ Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition-1 April 2016), pages 24 to 27, refer to vertebral fractures. Paragraphs 4.30 and 4.32 on page 27 state that ‘within a spinal region, separate spinal impairments are not combined. The highest value impairment within the region is chosen. Impairments in different spinal regions are combined using the combined values chart (AMA 5, pp604-06)’. These guidelines refer to the ‘AMA Guides to the Evaluation of Permanent Impairment (5th edition)’.
I have referred to chapter 15, pp 384 to 391, Tables 15-3 and 15-4. For both the lumbar spine and the thoracic spine, the impairment is DRE IV, which refers to fractures with more than 50% compression of one vertebral body without residual neural compromise. In view of the two severe fractures in L1 & L3, I have assessed the impairment for the Lumbar Spine at 22%. In view of the severe fracture of T12, I have assessed the impairment for the Thoracic Spine at 20%. This results in a Combined Value of 38% WPI.”
Professor Carter was requested to indicate the proportion of WPI due to any previous injury, pre-existing condition, or abnormality and responded: “He had asymptomatic low bone mineral density of the spine prior to the injury (see 9. below), but this would not be regarded as an impairment. There are no other pre-existing factors that would attract a WPI relating to the spine”.
Professor Carter was requested to comment on whether treatment expenses were reasonable and necessary and wrote:
“It is unlikely that the vertebral fractures sustained on 27 July 2018 would have occurred if the bone density had been normal. However, since the bone density was low, & that treatment with Forteo was reasonable & necessary, I believe that it is justifiable for the insurance company to pay for the Forteo, but with a 50/50 split due to the pre-existing osteoporosis.”
Dr Powell, in his report of 27 November 2018, reviewed the investigations including the MRI scan of the lumbar spine dated 25 September 2018, the CT scan of the thoracolumbar spine dated 7 November 2018 and the bone scan dated
9 November 2018. Dr Powell concluded that the applicant sustained an injury to his lower back in a workplace incident on 27 July 2018 which had caused acute compression fractures of T12, L1 and L3 with severe loss of vertebral body height and associated kyphotic deformity and chronic back pain.Dr Powell wrote:
“I have reviewed the investigations provided. The MRI and bone scan findings are consistent with an acute fracture. No other significant pathology is identified, although as I have indicated above, it is not normal for this type of mechanism to cause such significant injury and this warrants further investigation. There is some minor degenerative pathology which would be consistent with his age, as well as evidence of previous vertebral body damage in the thoracic spine which would have been pre-existing, though also likely to be related to some underlying metabolic/endocrine pathology.
The scans are consistent with Mr Halliday’s current diagnosis and symptoms.
It would appear that the incidents on 27 July 2018 and 29 July 2018 have caused significant compression fractures in the thoracolumbar to which Mr Halliday is likely to have been predisposed to by way of concurrent pathology which is yet to be formally diagnosed.”
In a report dated 6 February 2019, Dr Powell noted that the applicant had been diagnosed with osteoporosis by Dr Terry Diamond, endocrinologist, and placed on appropriate treatment. Dr Powell considered that the presence of osteoporosis predisposes the patient to the development of a fracture with less strenuous activities than would otherwise be required with the more severe the osteoporosis, the higher the risk of fracture.
Dr Powell wrote:
“Although Mr Halliday was predisposed to the injury because of the underlying osteoporosis, the injury occurred whilst undertaking a physical demanding task that was expected of him in his employment. I do not believe it is possible to say that he would have sustained such an injury in the absence of the physical stimulus provided by the workplace incident”.
In a report dated 28 December 2022, Dr Powell assessed permanent impairment as follows:
“With reference to Paragraph 4.32 on Page 27 of the WorkCover Guides, the adjacent vertebral fractures in a transition zone (T12/L1) are present, the loss of vertebral body height is combined, and considered under the thoracic section.
Thus, with reference to Table 15-4 on Page 389, I assign a DRE Thoracic
Category IV with 21% whole person impairment. This takes into account a
mild disruption of activities of daily living.
In view of the initial compression fracture involving L3, I note the findings of the EOS study dated 7 November 2018 which referred to 72-80% loss of vertebral body height. As this is in a separate section of the spine, it is considered with reference to Table 15-3 on Page 384, where it is also considered Category IV, with 20% whole person impairment.
Although this may appear to be represent double assessment of the same pathological process, this represents my interpretation of the WorkCover Guides as written.
The total whole person impairment is obtained by combining the above figures, resulting in 37% whole person impairment.
The mechanism of injury described by Mr Halliday would not normally be sufficient to have caused multiple severe compression fractures in the spine.
The presence of osteoporosis represents a major contributing factor to the development of the injury and its subsequent outcome.
Therefore, on the basis of the available information I would make a deduction of one-half of the above figure to reflect the extent of the pre-existing pathology and with rounding this results in 19% whole person impairment.”
Associate Professor Terry Diamond, treating endocrinologist, is a report dated
8 January 2019 wrote:“In August 2018., while at work, he lifted a table out of a lift and developed severe back pain with VAS pain scores of 7/10. He required ongoing Tramadol 100mg tds and has ongoing back pain with VAS scores of 4/10. The back pain is related to a proven acute L3 fracture which occurred due to the muscle strain and superimposed on probable long-standing preexisting and undiagnosed osteoporosis.”
The Appeal Panel accepts primary assessments of impairment were identical. Both Professor Carter and Dr Powell assessed DRE category IV of the thoracic spine at 20% WPI and DRE category IV of the lumbar spine at 20% WPI. Dr Powell applied a 50% deduction pursuant to s 323 of the 1998 Act which resulted in a final assessment of 19% WPI by Dr Powell.
The appellant submits that the difference in the medical opinion was as to the application of s 323 and a difference of 1% in respect of the assessment of ADLs and the only issue to be determined was the assessment of WPI.
The Appeal Panel accepts that contrary to the terms of the referral and outside the jurisdiction vested in him by the 1998 Act, the Medical Assessor determined that there had been no injury to the lumbar spine and as a result failed to assess it.
The Appeal Panel accepts the appellant’s submission that the Medical Assessor had no jurisdiction to decide a question of liability. Schmidt AJ in Wetere v Coles Supermarkets Australia Pty Ltd [2025] NSWSC at 474 at [12] when describing the statutory scheme relating to the assessment of WPI said:
“Whether a person has suffered an injury, defined in s 4 of the 1998 Act, is for the Personal Injury Commission, not a Medical Assessor or Appeal Panel to determine: s 105 of the 1987 Act and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [111]-[112]. In the event of a dispute about the degree of impairment which has been suffered as the result of an injury, that degree must be assessed by an approved medical specialist: s 65(3) 1998 Act.”
In this case there was no issue that the result of the parties’ agreement and the consent orders the Commission made was that the Medical Assessor was confined to the assessment of the impairment of the thoracic spine and lumbar spine caused by his injury on 27 July 2018, that being what the Commission had referred for medical assessment.
The respondent submitted that the position of the Medical Assessor was that permanent impairment of the lumbar spine was not the "result of an injury" and was due to preexisting osteoporosis – which is permitted under s 319 and within the scope of the referral pursuant to s 293 of the 1998 Act. The Appeal Panel rejects that submission as we are satisfied that the Medical Assessor found that there was no injury to the lumbar spine on 27 July 2018. The Medical Assessor did not find that there has been an injury, that is, both the injurious event and the pathology arising from it, to the lumbar spine on 27 July 2018 and then deduct 100% of the assessment on the basis that any impairment should be regarded as being caused by the reduced bone density resulting from the osteoporosis and not because of the injury on 27 July 2018.
The Appeal Panel finds that the Medical Assessor made a demonstrable error in finding that the injury to the lumbar spine did not occur on 27 July 2018. This ground of appeal is made out.
The Appeal Panel has reviewed the evidence including the reports of the investigations, in particular, the MRI scan of 25 September 2018.
In a report of MRI scan lumbar spine dated 25 September 2018 (page 23 ARD), Dr John Bamidele, radiologist, reported the clinical history as “Acute back pain with radiation into left thigh ? L3 impingement.” Dr Bamidele found severe anterior wedge compression fractures at T12/ L1, with greater than 70% loss of vertebral body height at those levels. The discs at L2/3, L3/4, and L5/S1 were noted to be normal in height, and there was no mention of a fracture at the L3 level. However, he reported that at L4/5 there was disc dessication and posterior annular tear with resultant symmetric bulge and mild encroachment into the central canal and neural foramina but no significant stenosis or exiting nerve root impingement.
The Medical Assessor on examination found that on sensory testing of the spine and right lower extremity, there was an area of altered sensation corresponding to the symptoms in the outer aspect of the left thigh. The Appeal Panel is of the view instead that the sensory change on the lateral thigh was a symptom of L4 nerve root compression.
The Appeal Panel accepts that there was an injury to the lumbar spine on 27 July 2018. However, the Appeal Panel considers that the injury on 27 July 20218 was not a compression fracture of L3, but an injury to L4/5. The MRI report of 25 September 2018 refers to a clinical history of acute back pain “with radiation into left thigh? L3 impingement” and the discs at L2/3 and L3/4 were noted to be normal in height.
The Appeal Panel notes that a L4 impingement has the same distribution of pain radiating into the left thigh as a L3 impingement. The compression fracture at L3 was not identified until scans were taken in November 2018. The Appeal Panel are satisfied on balance that the compression fracture of L3 occurred after MRI scan performed on
25 September 2018 and before the scans in November 2018. The fracture of L3 was a subsequent condition and not part of the injury to be assessed.The pathology in the lumbar spine caused by the injury on 27 July 2018 was a posterior annular tear with resultant symmetric bulge and mild encroachment into the central canal and neural foramina but no significant stenosis or exiting nerve root impingement. The Appeal Panel is satisfied the appellant has a L4/5 annular tear and disc bulge with encroachment of neural roots and that this condition falls into DRE Lumbar category II with an assessment of 5% WPI.
The next matter to determine is whether a deduction should be made for a pre-existing condition in the lumbar spine pursuant to s 323 of the 1998 Act.
The Appeal Panel accepts that the appellant had a pre-existing condition, namely, osteoporosis. The appellant was asymptomatic prior to the injury on 27 July 2018. The disc heights at L3, L4 and L5 were reported as normal in the MRI scan on 25 September 2018. The Appeal Panel concludes therefore that based on the MRI scan of 25 September 2018 the pre- existing condition of osteoporosis did not cause or contribute to that impairment assessed at L4/5.
The Appeal Panel assessed 5% WPI in respect of the injury to the lumbar spine on
27 July 2018. Combining 18% assessed for the thoracic spine with 5% assessed for the lumbar spine results in a total of 22% WPI as a result of the injury on 27 July 2018.For these reasons, the Appeal Panel has determined that the MAC issued on
13 February 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W28893/24 |
Applicant: | Stuart Halliday |
Respondent: | MRVL Investment Pty Ltd |
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 Ross Mellick and issues this new Medical Assessment Certificate as to the matters set out in the Table below: Table - whole person impairment (WPI)
| 1.Thoracic Spine | 27.07.18 | Chapter 4, Paras 4.27, 4.30. 4.32, 4.33, 4.34, 4.35, 4.36 (ADLS), 4.34 | Section 15.5 Table 15-4 Class IV ADLs | 20% 2% | 2/10 | 18% (rounded) |
| 2.Lumbar Spine | 27.07.18 | Chapter 4 Paras 4.27, 4.30. 4.33. 4.35, 4.36 | Section 15.5 Table 15-3 Class IV | 5% | 0 | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
2
0