Hayes v PFD Food Services Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Hayes v PFD Food Services Pty Ltd [2024] NSWPICMP 883
APPELLANT:	Leslie Hayes
RESPONDENT:	PFD Food Services Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	20 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding the appellant had a pre-existing condition in his cervical spine that contributed a proportion of his permanent impairment from the injuries the appellant suffered to his cervical spine; whether MA had proper regard to the evidence; whether MA explained his finding that the appellant had a pre-existing condition; whether MA explained his finding that one-third of the appellant’s permanent impairment from injuries the appellant suffered to his cervical spine was due to a pre-existing condition; Medical Appeal Panel (Panel) found MA was correct to find that the appellant had a pre-existing condition and that a proportion of the appellant’s permanent impairment from the injuries the appellant suffered to his cervical spine is due to that pre-existing condition, and in so finding the MA had proper regard to all relevant evidence; Panel found that MA did not adequately explain why one third of the appellant’s permanent impairment was due to that pre-existing condition and the MA ought to have assumed in accordance with section 323(2) that the deductible proportion was one tenth; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 October 2024 Leslie Hayes, the appellant, 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 11 September 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

The appellant commenced employment as a storeman and truck driver in December 2005 with PFD Food Services Pty Ltd, the respondent. The appellant last worked with the respondent on 25 April 2013. The parties ultimately agreed the appellant suffered several injuries as a consequence of his employment from which he potentially had a degree of permanent impairment, being an injury to both knees on 28 December 2006, a further injury to both knees on 17 October 2007, an injury to his cervical spine and right shoulder on 15 June 2012, and an injuries to his knees, cervical spine and right shoulder deemed to have happened on 26 March 2023. The last of those injuries, that is those that were deemed to have happened on 26 March 2023, were injuries of the type described in s 4(b) of the Workers Compensation Act 1987 (the 1987 Act), and hence by virtue of either s 15 or s 16 of the 1987 Act were deemed to have occurred on the date on which the appellant claimed compensation from the respondent for permanent impairment from those particular injuries.
The appellant’s appeal relates only to the injuries he suffered to his cervical spine on 15 June 2012 and the injury to his cervical spine that was deemed to have happened on 26 March 2023.
In a statement the appellant signed on 19 March 2024 he described circumstances in which the injury to his cervical spine, and also right shoulder, occurred on 15 June 2012. He was then delivering stock of 20-kilogram drums of cooking oil that had been loaded on a pallet and placed within the back of the truck he was driving. While holding and unloading a drum, he caught his foot on clingwrap that had been wrapped around the load causing him to lose his balance. He fell and injured his neck and right shoulder.
In his statement the appellant also described the tasks he had undertaken over the course of years that gave rise to the injury to his cervical spine that was deemed to have occurred on 26 March 2023. These tasks included the appellant climbing down and up to a truck, including its cabin, between 50 and 300 times a day, unwrapping clingwrap from the cargo in his truck, pushing a trolley of food items that could weigh up to 200-kilograms, and lifting weights of up to 45 kilograms. From the time he suffered the injury on 15 June 2012 to his cervical spine and right shoulder, his duties changed such that he was required to clean shelves which necessitated him ascending and descending a ladder, and which he described in his statement as straining both his knees. He did not describe this activity placing any strain on his cervical spine.
Following the appellant initiating proceedings in the Personal Injury Commission (the Commission), seeking the Commission determine the claims he made against the respondent for compensation for permanent impairment from his several injuries, a delegate of the President of the Commission referred the several medical disputes between the parties arising from those claims to the Medical Assessor to assess. Relevant to the appellant’s appeal, these included whether any proportion of the appellant’s permanent impairment resulting from the injuries to his cervical spine that occurred on 15 June 2012 and that was deemed to have occurred on 26 March 2023, resulted from a pre-existing condition or previous injury, and if so the extent of that proportion. The injury the appellant suffered to his cervical spine on 15 June 2012 and the injury he suffered that was deemed to have happened on 26 March 2023 were described in the referral to the Medical Assessor in the same terms as they had been described in a Certificate of Determination that the Commission issued on 13 May 2024 recording directions that Member Gaius Whiffin had made on 13 May 2024 with the consent of the parties. With respect to the injury the appellant suffered on 26 March 2023, the description was an “occupational disease due to the nature and conditions of the applicants [sic] employment from December 2002 [sic: 2005] to April 2103”.
The Medical Assessor examined the appellant on 20 August 2024 and, as said, issued the MAC on 11 September 2024. The history the Medical Assessor recorded in the MAC included the circumstances that resulted in the appellant suffering the injury to his cervical spine on 15 June 2012. The Medical Assessor also detailed that neurosurgeon Dr John McMahon carried out a two level discectomy and fusion on 2 July 2014 at C5/6/7, which the Medical Assessor noted provided the appellant some improvement. The Medical Assessor also detailed that Dr McMahon performed further surgery on 31 August 2015 when he carried out a hemi-laminectomy, foraminotomy and rhizolysis at the same lower segment levels. The Medical Assessor noted that this surgery also provided the appellant some improvement. The Medical Assessor recorded that on 19 February 2020 Dr McMahon carried out a third procedure fusing the appellant’s C3/4/5.
The Medical Assessor conducted a physical examination of the appellant’s cervical spine. The appellant makes no complaint in his appeal about the Medical Assessor’s examination of him nor the findings the Medical Assessor made from that examination of his cervical spine and hence there is no need to repeat the Medical Assessor’s findings in this Statement of Reasons.
The Medical Assessor noted within the MAC that MRI scans of the appellant’s cervical spine had been done on 9 July 2012, 13 June 2014, 29 January 2019, 27 July 2020 and 11 August 2021. The Medical Assessor briefly detailed the results of those.
The Medical Assessor assessed the overall permanent impairment the appellant had relating to his cervical spine is 34% whole person impairment (WPI). Neither party has challenged that. In any event, the Appeal Panel considers that based on the findings the Medical Assessor recorded from his examination of the appellant’s cervical spine and the surgeries the appellant had, that assessment is correct.
As mentioned, the issues the appellant has raised in his appeal against the Medical Assessor’s assessment of the referred matters relate to the Medical Assessor finding that a proportion of his permanent impairment relating to his cervical spine is due to a pre-existing condition and the Medical Assessor’s assessment of the extent of that proportion. With respect to that, in answer to a standard question at part 8f in the prescribed form for the MAC, the Medical Assessor said this:
“Attention is drawn to pre-existing degenerative changes in the cervical spine…... This degenerative change is due to a combination of factors such as his occupation. Further deterioration is attributed to the surgical procedures in the cervical spine ….. The radiological reviews, also demonstrate pre-existing degenerative change which appears to have been quite significant, although was surprisingly asymptomatic.”
The Medical Assessor also noted within part 10b of the MAC, when explaining how he had calculated the 34% WPI the appellant had relating to his cervical spine, that during the period of the appellant’s employment with the respondent the appellant did a lot of heavy manual handling and climbing that highly likely had contributed to the deterioration of the appellant’s cervical spine that necessitated the appellant having a cervical fusion. The Medical Assessor also expressed his view that a component of the appellant’s impairment relating to the appellant’s cervical spine comes from the appellant’s “nature and conditions of employment, as well as from the event on 15/06/12 when he fell inside the truck and from the affects of naturally occurring degenerative changes, which are very clearly demonstrated radiologically”.
The Medical Assessor referred to reports of orthopaedic surgeon Dr Roger Pillemer dated 19 April 2022 and 30 January 2023, that were included in the materials that the Commission provided him. Dr Pillemer had examined the appellant at the request of the appellant’s solicitors and undertook an assessment of the appellant’s permanent impairment. Dr Pillemer in those reports expressed his view that he would not make any deduction in his assessment of the appellant’s permanent impairment relating to his cervical spine for a pre-existing condition. With respect to that, the Medical Assessor commented that he believed a deduction should be applied.
The Medical Assessor also referred to reports that orthopaedic surgeon Dr James Powell had provided to the respondent’s insurer and report that Dr Powell had provided to the respondent’s solicitors. In the last of those reports Dr Powell said, with respect to his assessment of the appellant’s degree of permanent impairment relating to his cervical spine, that he considered “a 50% deduction for the influence of the pre-existing condition to be appropriate”. He explained this was on the basis that the initial workplace incident, being the incident of 15 June 2012, precipitated neurological symptoms that resulted in the respondent proceeding to surgery. Dr Powell said that the surgery was largely based on the nature of the pre-existing disease which had necessitated fusion rather than decompression only. Dr Powell said that the appellant’s initial work injury was not the main reason for the appellant to have stabilisation surgery. With respect to that, the Medical Assessor said he believed a deduction of one-half is too great.
The Medical Assessor’s assessment was that one-third of the appellant’s permanent impairment is due to pre-existing naturally occurring degenerative change in the appellant’s cervical spine. He said “the remainer of the cervical spine impairment is apportioned equally between the event of 15/06/12 and the component due to the nature and conditions of his employment”.
Hence, the Medical Assessor ultimately assessed, and certified, that the degree of the appellant’s permanent impairment relating to his cervical spine from the injury on 15 June 2012 is 11% WPI and that the degree of his permanent impairment from the injury relating to his cervical spine that was deemed to have occurred on 26 March 2023 is also 11% 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.
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 his cervical 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.
The Appeal Panel considers that the appellant’s submissions are not well expressed. Be that as it may, the Appeal Panel understands the appellant’s submissions to be that the Medical Assessor erred by concluding that a proportion of his permanent impairment relating to his cervical spine is due to a pre-existing condition and that this error of the Medical Assessor occurred as a consequence of the Medical Assessor not having regard, or having proper regard, to the tasks he had done in his employment over the course of seven and a half years. The appellant submitted that his employment over that time would have made a material contribution to the development of an underlying disease in his cervical spine.
The appellant submitted that the Medical Assessor had assumed that a deduction had to be made “for the incorrectly perceived underlying issues without considering the terms of s323”, which required the Medical Assessor to make his assessment having regard to the evidence of the actual consequences of the pre-existing condition to his impairment.
The appellant referred to the authorities of Cole v Wenaline Pty Ltd[1] (Cole) and Ryder v Sundance Bakehouse[2] (Ryder).
[1] [2010] NSWSC 78.
[2] [2015] NSWSC 526 at [45].
The appellant further submitted that the Medical Assessor did not provide adequate reasons for his conclusion that he “suffered from underlying issues that were naturally occurring”.
The appellant submitted that the entire permanent impairment he had relating to his cervical spine ought to have been found by the Medical Assessor to have resulted from the referred injuries.
The appellant submitted the Medical Assessor was ignorant of the fact that there could be multiple causes of impairment. The appellant referred to several authorities: Secretary, New South Wales Department of Education v Johnson,[3] Hunt v Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd,[4] Gould v Vaggelas,[5] Calman v Commissioner of Police,[6] and Cluff v Dorahy Bros. (wholesale) Pty Ltd.[7]
[3] [2019] NSWCA 321.
[4] [2013] HCA 10.
[5] [1988] HCA 68.
[6] [1999] HCA 60.
[7] [1979] 2 NSWLR 435.
Paraphrasing the respondent’s submissions, to provide a summary of them, they are that the Medical Assessor specifically considered how the appellant’s work duties contributed to his impairment. The respondent conceded the Medical Assessor could have provided a more detailed analysis and explanation relating to the deduction he made for pre-existing abnormalities and conditions, but the respondent submitted that does not translate in to the Medical Assessor’s certificate being technically flawed.
The respondent nevertheless submitted that the Medical Assessor’s explanation was adequate and that the Medical Assessor followed the correct process and procedure when considering what deduction should be made under s 323.

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[8] the Court of Appeal held that the Appeal Panel is obliged to give reasons.
[8] [2006] NSWCA 284 (Vegan).
For a deduction to be made under s 323(1) of the 1998 Act it is necessary that as at the “relevant date” the appellant had a pre-existing condition or abnormality or had suffered a prior injury that comprises a proportion of his permanent impairment from his work injuries. It does not matter that the pre-existing condition or abnormality or previous injury was asymptomatic or symptomatic at the time he suffered his work injuries. What is required is that as at the time the appellant’s permanent impairment from his injuries was assessed by the Medical Assessor the appellant’s pre-existing condition comprised part of his impairment from his injury.[9]
[9] Cole at [31]; Ryder at [45].
In this case the appellant’s injury to his cervical spine that was deemed to have happened on 26 March 2023 is an occupational disease due to the nature and conditions of the appellant’s employment from December 2005 to April 2013. That is how it was described in a Certificate of Determination that the Commission issued on 13 May 2024.
Whether the appellant had a pre-existing condition at the relevant date and, if so, whether that condition comprises a proportion of his impairment from his injury to his cervical spine deemed to have occurred on 26 March 2023 must be determined based on the evidence, and not by reference to a hypothesis or assumption.[10] Similarly, with respect to the injury he suffered to his cervical spine on 15 June 2012.
[10] Cole at [31].
With respect to the appellant’s injury to his cervical spine that occurred on 26 March 2023 the relevant date at which he must have had a pre-existing condition was the date on which he commenced performing tasks for the respondent from which his occupational disease arose. The Appeal Panel notes that within the excess of 1,000 pages comprising the material before the Appeal Panel, there is scant evidence on the nature of the appellant’s employment before he commenced his employment with the respondent and consequently scant evidence on tasks he performed in his prior employment. Certainly, the appellant in his submissions did not refer the Appeal Panel to any evidence that would inform the Appeal Panel of that. The only evidence the Appeal Panel on its review of the material can find evidence relating to this is in the reports of Dr Powell, wherein Dr Powell described that prior to the appellant commencing his employment with the respondent he performed a variety of work such as a fitter and turner, doing maintenance work, and working as a plastering assistant. There is no evidence that indicates that this type of work in the appellant’s prior employment placed any strain on the appellant’s cervical spine or in any way adversely affected his cervical spine such that the Appeal Panel could conclude that the nature of the occupational disease that comprises the appellant’s injury to his cervical spine that is deemed to have happened on 26 March 2023 is due to his earlier employment, and hence the “relevant date” with respect to the s 323 issue for this injury is December 2005.

With respect to the appellant’s injury to his cervical spine on 15 June 2012 the relevant date at which the appellant must have had a pre-existing condition for the purpose of engaging s 323 of the 1998 Act is 15 June 2012.
Contrary to the appellant’s submissions, the fact that the parties agreed the appellant’s injury to his cervical spine deemed to have happened on 26 March 2023 is an occupational disease due to the nature and conditions of the appellant’s employment from December 2005 to April 2013, did not prevent the Medical Assessor from finding that the appellant had a pre-existing condition in his cervical spine prior to his commencing his employment with the respondent so long as the evidence before the Medical Assessor substantiated that was the case. Similarly the Medical Assessor was not prevented, by virtue of the parties agreement, from finding and that the pre-existing condition contributes to the permanent impairment the appellant has from that injury to his cervical spine, again so long as the evidence substantiated that was the case. For the Medical Assessor to have concluded otherwise, that is for him to have assumed that the appellant did not have a pre-existing condition because the parties had agreed that the appellant’s injury was an occupational disease that occurred over seven years commencing from the start of the appellant’s employment with the respondent, would in such circumstance be against the evidence and, hence, contrary to the authority of Cole.
The Appeal Panel considers the Medical Assessor was correct to find that the appellant had a pre-existing condition. He identified that pre-existing condition as degenerative change in the appellant’s cervical spine. The Appeal Panel considers that this finding of the Medical Assessor accords with the evidence available to the Medical Assessor, bearing in mind that the appellant was 47 years of age when he commenced his employment with the respondent in December 2005.
In evidence there is a report on an MRI scan the appellant had done on his cervical spine on 9 July 2012. That revealed degeneration at all levels of the appellant’s cervical spine with the exception of C1/2. It revealed the degeneration was more extensive at the lower levels of the appellant’s cervical spine. The reporting radiologist described that earlier investigations had also been done, being a recent CT and X-ray, which had shown degenerative changes and moderate canal stenosis at C5/6 and C6/7 with multiple level bilateral foraminal narrowing. The Appeal Panel could locate in the evidence before it, which is the same evidence that was provided to the Medical Assessor, the reports on those earlier investigations. Neither party in their respective submissions pointed the Appeal Panel to those reports if they were within the evidence.
Be that as it may, the MRI done on 9 July 2012 and the CT scan and X-ray the radiologist noted within his report on the MRI and which he said revealed degeneration and moderate canal stenosis, were done approximately seven and a half years after the appellant commenced his employment with the respondent. Bearing in mind the appellant’s age at the time he commenced employment with the respondent, the degeneration in his cervical spine revealed by the report on the MRI scan done on 9 July 2012 and the moderate canal stenosis that the CT scan and X-ray was said to reveal, the Medical Assessor was right to conclude that degenerative change did exist in the appellant’s cervical spine at the time the appellant commenced his employment with the respondent. The extent of the degeneration revealed in the MRI investigation was such that it could not have occurred solely over the course of seven and a half years. Similarly canal stenosis cannot develop to any significant degree over that time frame. A large part of the degeneration must have been in existence at the date the appellant commenced employment with the respondent.
The next and critical issue, is whether the degeneration that existed in the appellant’s cervical spine in December 2005 comprise at the time the Medical Assessor examined the appellant a proportion of the permanent impairment the appellant has from the injuries to his cervical spine The Appeal Panel considers that a proportion of the appellant’s permanent impairment from his injury on 26 March 2023 results from the pre-existing condition, and consequently the Appeal Panel does not consider the Medical Assessor made an error by so finding.
The Appeal Panel however agrees with the appellant’s submissions insofar as the appellant contends that the Medical Assessor did not provide sufficient reasons to explain why a proportion of his permanent impairment relating to the work injuries he suffered to his cervical spine is due to his pre-existing condition and also explain his conclusion why the proportion was one-third of his overall permanent impairment relating to his cervical spine.
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that the parties can understand the assessment.[11]
[11] See for example Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz) at [34].
The task of ascertaining the Medical Assessor’s reasons requires the MAC to be read as whole, but not with an eye fine-tuned for error.[12] The reasons do not necessarily need to be comprehensible to a person with no medical expertise and in the circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[13]
[12] Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320 at [73].
[13] Vitaz at [34]; see also Vegan at [122].
In the Appeal Panel’s view the issue of whether a proportion of the appellant’s permanent impairment relating to his cervical spine is due to his pre-existing condition and if so the extent of that proportion is a medically contestable issue and that is apparent from the fact that Dr Pillemer and Dr Powell expressed different views on that in their respective reports. This is not a case where the Medical Assessor’s assessment of those matters is self-evident to a medical practitioner, and again this is evident from the fact that Dr Pillemer considered no proportion of the appellant’s permanent impairment from his work injuries to his cervical spine is due to a pre-existing condition, and Dr Powell considered that a proportion is but that the proportion is 50%.
The Medical Assessor’s reason for concluding that one-third of the appellant’s overall permanent impairment relating to his cervical spine is due to pre-existing degeneration is in substance, that the radiological investigations demonstrated pre-existing degenerative change that was significant although asymptomatic and that a component of his impairment was due to that. As indicated the Appeal Panel does not consider that explanation meets the requirements of s 325(2).
As earlier mentioned, neither party challenged the Medical Assessor’s assessment that the overall degree of the appellant’s permanent impairment relating to his cervical spine is 34% WPI. It is apparent that that assessment was done in accordance with instructions provided in paragraph 4.37 of the Guidelines. That is, because the appellant had spinal fusion the impairment of his cervical spine was to be assessed by reference to the criteria of diagnosis-related estimate (DRE) Category IV of AMA 5. To that had to be added additional ratings in accordance with Table 4.2 of the Guidelines to take account of the surgeries the appellant had, the several levels of his cervical spine upon which surgery occurred and the presence of residual symptoms of radiculopathy.
The Medical Assessor however did not explain why he did not make the make assumption that s 323(2) of the 1998 Act directs a medical assessment to make, that is that the deductible proportion for the purpose of s 323(1) is 10% where it is difficult or costly to determine the deductible proportion and where making that assumption is not at odds with the available evidence. It is apparent that the Medical Assessor did not make that assumption, but he did not explain why so. Further, having not made that assumption, he did not explain by reference, to the manner in which he had assessed the degree of the appellant’s permanent impairment relating to his cervical spine, and which the Appeal Panel has detailed in the preceding paragraph, why the pre-existing degeneration in the appellant’s cervical spine comprised one-third of his impairment.
The failure of the Medical Assessor to do that is an error such that the MAC contains a demonstrable error.
As the Appeal Panel has already noted, the Medical Assessor was correct to find that the appellant had a pre-existing condition in his cervical spine at the time he commenced employment with the respondent in December 2005. To repeat, that pre-existing condition is evident from the report on the MRI scan that was done on the appellant’s cervical spine on 9 July 2012 and what the reporting radiologist said a recent CT and X-ray had revealed. Further degeneration would have occurred in the period from December 2005 until 15 June 2012 as a consequence of the arduous work the appellant did for the respondent. As earlier mentioned, the appellant in his statement indicated that the work he performed for the respondent after 15 June 2012 only placed strain on his knee and not his cervical spine. The work he did for the respondent after 15 June 2012 did not therefore progress the degeneration he had in his cervical spine.
The appellant both preceding the time at which he commenced employment with the respondent and preceding the injury he suffered on 15 June 2012 did not suffer any symptoms from the cumulative degeneration in his cervical spine. The injury he suffered on 15 June 2012 triggered significant and disabling symptoms for the appellant from the cumulative degeneration that existed in his cervical spine at that date. Without the existing degeneration that was in his cervical spine in December 2005 the likelihood is that the appellant’s symptoms generated from the incident on 15 June 2012 would not have been nearly as severe and disabling and possibly may not have manifested at all. Without that incident the appellant in all likelihood would have continued with an asymptomatic cervical spine for several years.
The situation is then that the pre-existing degeneration in the appellant’s cervical spine as at December 2015, and the degeneration in his cervical spine consequent upon the arduous work he did for the respondent from December 2005 until 15 June 2012 and the incident on 15 June 2012 were all material factors in the need for the surgeries the appellant had after 15 June 2012, including the fusion surgery, and also material factors to his persisting radiculopathy. That is to say, the appellant’s current impairment relating to his cervical spine is a result of all those matters and necessarily therefore the existing degeneration in his cervical spine before he commenced employment with the respondent in December 2005 comprises a proportion of the permanent impairment he has from his work injuries. Given that, s 323(1) of the 1998 Act must be applied when assessing the degree of the appellant’s permanent impairment resulting from the injuries he suffered to his cervical spine. As indicated earlier, the Medical Assessor made no error in concluding that.
However, the Appeal Panel considers that in this case it is difficult to determine the extent to which the appellant’s pre-existing degeneration contributes to the permanent impairment he has in his cervical spine from the injuries to his cervical spine. This is because, notwithstanding the Appeal Panel is satisfied the Medical Assessor was correct to conclude that the appellant had degeneration in his cervical spine preceding the commencement of his employment in December 2005 and the Appeal Panel considers that that was a material factor in this appellant’s need for surgery and consequently comprises a proportion of the appellant’s current permanent impairment, it cannot be known from that investigation the exact degree to which the appellant had degeneration in his cervical spine preceding December 2005. Consequently, in accordance with s 323(2) of the 1998 Act the Appeal Panel considers that the deductible proportion for the purpose of s 323(1) is 10%. Making that assumption is not at odds with the available evidence. That evidence is the fact that the appellant was asymptomatic as at December 2005 and indeed immediately preceding his injury on 15 June 2012 and there is no other evidence before the Appeal Panel, or that was before the Medical Assessor, that would enable a finding to be made regarding exactly what degeneration existed in the appellant’s cervical spine as at December 2005.
Noting that an error was made by the Medical Assessor with respect to the deduction to be made under s 323(1) with respect to both injuries the appellant suffered to his cervical spine, that is the injury on 15 June 2012 and the injury deemed to have happened on 26 March 2023, the Appeal Panel when correcting that error is required to consider the “starting point” from which the deduction must be made.[14] The Appeal Panel considers that the injury the appellant suffered on 15 June 2012 was a more significant injury than the injury to the appellant’s cervical spine that was deemed to have occurred on 26 March 2022. This is because it was the incident on 15 June 2012 that triggered the severe and disabling symptoms the appellant suffered from the degeneration in his cervical spine. Without that incident occurring the appellant may never have required the surgeries he undertook, or at least would not have required it for several years. That incident really made it necessary for the appellant to have the surgeries that ultimately transpired. In that circumstance, the Appeal Panel considers that the permanent impairment that the appellant has relating to his cervical spine, net the deduction to be made under s 323(1) is such that two-thirds of it is related to the appellant’s injury on 15 June 2012 and one-third to the injury deemed to have occurred on 26 March 2023. Putting that in figures, the Appeal Panel assesses the appellant has 21% WPI relating to his cervical spine from the injury on 15 June 2012, after the deduction is made pursuant to s 323(1), and 10% WPI from the injury to his cervical spine that was deemed to have occurred on 26 March 2022 after the deduction of 10% is made under s 323(1) of the 1998 Act.
[14] Coca Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [86].
For these reasons, the Appeal Panel has determined that the MAC issued on 11 September 2024 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:	W2884/24
Applicant:	Leslie Hayes
Respondent:	PFD Food Services 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 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)
Right lower extremity	28/12/06	Chapter 3	Table 17-33	1%	-	1
Left lower extremity	28/12/06	Chapter 3	Table 17-33	1%	-	1
Total % WPI (the Combined Table values of all sub-totals) DOI 28/12/06						2%
Right lower extremity (knee)	17/10/07	Chapter 3	Table 17-33	0	-	0
Left lower extremity (knee)	17/10/07	Chapter 3	Table 17-33	0	-	0
Total % WPI (the Combined Table values of all sub-totals) DOI 17/07/07						0%
Cervical spine	15/06/12	Chapter 4	Table 15-5	23%	1/10	21%
Right upper extremity	15/06/12	Chapter 2	Figures 16-40, 16-43, 16-46 Table 16-3	8%	-	8%
Total % WPI (the Combined Table values of all sub-totals) DOI 15/06/12						27%
Right lower extremity (knee)	26/03/22	Chapter3	Table 17-33	20%	1/5	16
Left lower extremity (knee)		Chapter 3	Table 17-33	20%	1/5	16
Cervical spine		Chapter 4	Table 15-5	11%	1/10	10%
Right upper extremity (shoulder)		Chapter 2	Chapter 16	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals) DOI 26/03/23					36%

[2024] NSWPICMP 883

20 December 2024