Headon v Tasco Carriers Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Headon v Tasco Carriers Pty Ltd [2023] NSWPICMP 426
APPELLANT:	Wayne Headon
RESPONDENT:	Tasco Carriers Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	4 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant suffered an injury of a compressed fracture of the T5 vertebra; appellant had an undiagnosed pre-existing plasmacytoma of the T5 vertebra which was treated after injury and either eliminated or substantially reduced; Medical Assessor (MA) made a deduction of 50% under section 323(1) for the proportion of the appellant’s permanent impairment that he considered was due to the plasmacytoma; whether the MA erred by doing so; Appeal Panel held that the MA adopted the wrong approach by focusing on the role the plasmacytoma had in the occurrence of injury rather than the contribution it makes to the appellant’s current impairment; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 May 2023 Wayne Headon, 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 19 April 2023.
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 truck driver with Tasco Carriers Pty Ltd, the respondent, in December 2020. On 3 May 2021 he was trying to open a heavy gate to access the yard from which he worked. That required him to use a steel bar to lever the bottom of the gate from the ground. Whilst doing that he felt a stabbing sensation in the middle of his upper back. He completed his first delivery but whilst attempting his second delivery he experienced severe pain in his back and was unable to continue driving. He ceased his work and got a massage and then went home.
The appellant returned to work on 8 March 2021 of the following week. He dropped his hat on the ground and when he reached to pick it up his legs gave way and he fell to the floor. He was taken by ambulance to Griffith Base Hospital. An MRI was done there revealing a moderate to severe compression/collapse of his T5 vertebral body and a lesion involving the T5 vertebral body that extended into the pedicles. He was airlifted to St Vincent’s Hospital Sydney where he came under the care of oncologist Associate Professor Nada Hamad. A biopsy of the T5 lesion and further radiological investigations were done. He was diagnosed as having plasmacytoma which was treated with 22 sessions of radiotherapy. He was discharged from St Vincent’s Hospital on 1 May 2021.
A further MRI was done on 9 August 2021. That confirmed the compression fracture of T5 with a further loss of anterior vertebral body height compared to the investigation done in March 2021. In a letter A/Prof Hamad wrote to the appellant’s general practitioner (GP) on 15 September 2021 A/Prof Hamad said that he felt that the imaging was not suggestive of any ongoing disease and that the ongoing pain the appellant was experiencing was likely due to a mechanical injury from the initial pathological fracture. A/Prof Hamad said that he would be referring the appellant to neurologist Dr Richard Parkinson and would review the appellant three months thereafter.
The appellant was reviewed by A/Prof Hamad on 27 January 2022, but he had not by then consulted Dr Parkinson. On 27 January 2022 A/Prof Hamad wrote to the appellant’s GP following his review of the appellant and in his letter he said that the appellant had responded well to radiotherapy treatment.
A further MRI was done on 15 March 2022 which revealed an anterior wedge compression fracture at T5 with approximately 70% loss of anterior height. The report on the investigation noted that this had progressed since the prior examination when there was approximately 50% loss of height.
On 17 March 2022 the appellant consulted neurosurgeon Dr Richard Parkinson. Following that consultation Dr Parkinson wrote to A/Prof Hamad advising that he considered no surgical intervention was required.
The appellant’s solicitors organised for the appellant to be examined by general orthopaedic and trauma surgeon Dr Graeme Doig on 12 May 2022 so as to provide a forensic medical report on his injury. In a report dated 23 May 2022 Dr Doig advised that the appellant suffered a pathological fracture of the T5 thoracic vertebra as a result of the incident that occurred on 3 March 2021. Dr Doig advised that the appellant’s employment with the respondent did not cause the appellant’s plasmacytoma, which he said is a bone tumour that arises in the plasma cells and is most commonly found in the spine. Dr Doig advised that he assessed the appellant had “17% permanent impairment of the whole person” as a result of the injury the appellant suffered on 3 May 2021 but Dr Doig also said that “as there was a pre-existing condition of plasmacytoma present in the vertebral body a 10% deduction would apply as per Workcover guidelines”. Dr Doig said that that reduced the appellant’s whole person impairment (WPI) to 15%.
Relying on that report, the appellant’s solicitors wrote to the respondent’s insurer on
31 May 2022 advising it that the appellant claimed compensation from it in the amount of $39,291 for 15% WPI the appellant said he had from the injury he suffered on 3 March 2021.
Thereupon the respondent’s solicitors arranged for the appellant to be examined by orthopaedic surgeon Dr Robert Breit on 4 August 2022. In a report dated 4 August 2022
Dr Breit advised that the appellant had a pathological fracture through a solitary plasmacytoma. Dr Breit advised that fracture of the T5 vertebra was inevitable and that it was purely coincidental that it happened at the respondent’s work. Dr Breit advised “there is no impairment because there is no relationship to his employment”.
On 17 August 2022 the respondent’s insurer wrote to the appellant, care of his solicitors, notifying him in accordance with s 78 of the 1998 Act that it disputed his claim for lump sum compensation for his “alleged injury” on 3 March 2021. It advised him that it disputed he suffered injury in the course of his employment. It advised him that it disputed his employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of a disease injury. It advised him that it disputed he was entitled to permanent impairment lump sum compensation because the permanent impairment he has did not result from a work injury. It advised him that it preferred the opinion of Dr Breit over the opinion of Dr Doig.
The appellant then commenced proceedings in the Personal Injury Commission (Commission) by registering with it an Application to Resolve a Dispute (ARD) dated
12 September 2022 seeking determination of his claim for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The matter was referred to Member
Ms Rachel Homan who conducted a conciliation conference with the parties on 15 November 2022 and following that an Arbitration Hearing to determine whether the appellant sustained an injury to his thoracic spine on 3 March 2021. In a Certificate of Determination dated
21 November 2022 Member Homan recorded that she had determined the appellant had sustained an injury in the course of his employment with the respondent on 4 March 2021 pursuant to s 4(a) of the 1987 Act and that his employment was a substantial contributing factor to that injury. Member Homan ordered that the matter be remitted to the President of the Commission so that it could be referred to a Medical Assessor to assess the degree of permanent impairment of the appellant from his injury on 3 March 2021.
On 30 November 2022 a delegate of the President duly did so.
The Medical Assessor, pursuant to that referral, examined the appellant on 21 March 2023 and, as stated above, issued the MAC on 19 April 2023. In that, he certified the appellant has 17% WPI. He also said that he considered a proportion of the appellant’s WPI is due to a pre-existing condition being “the extensive erosion of the T5 vertebral body by the plasmacytoma”. He opined that in the assessment of the appellant’s permanent impairment from his injury there was to be a deduction for the proportion of the appellant’s WPI due to this condition, which deduction he said should be two-thirds of the appellant’s WPI. He provided the following explanation for that:
“The approach I have taken for this is to consider the type of injury which Mr Headon might possibly have experienced by levering up the heavy gate alone. If this had affected his thoracic spine, it would have been most unlikely that he would have experienced any condition which would have placed him in a thoracic category greater than DRE II. This provides a whole person impairment ranging between 5% and 8%, depending on the activities of daily living. Therefore, I am concluding that the work-related component of this injury would effectively be DRE II and the remainder would be due to the underlying plasmacytoma. Effectively therefore, that means that two-thirds of the impairment is deducted due to the plasmacytoma. Mathematically, this is rounded to a final whole person impairment of 6% due to the work-related component of this event.”
The Medical Assessor consequently certified in the MAC that the degree of the appellant’s permanent impairment from his injury of 3 March 2021 was 6% 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 examination the Medical Assessor conducted on the appellant and the findings that the Medical Assessor made from his examination. The issue raised in the appeal relates only to the deduction the Medical Assessor made under s 323(1) of the 1998 Act for the proportion of the appellant’s permanent impairment that was due to a pre-existing condition. That issue can be dealt with by the Appeal Panel based on the material before the Appeal Panel. There is simply no need for the Appeal Panel to re-examine the appellant as no further useful clinical data relating to the issue raised in the appeal would be obtained by doing so.

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.
In summary, the appellant submitted that the Medical Assessor did not follow the correct process required by the 1998 Act regarding the deduction to be made for a pre-existing condition. The appellant submitted that the Medical Assessor did not articulate how the appellant’s plasmacytoma contributed to his current impairment. The appellant submitted the Medical Assessor did not explain how the plasmacytoma made a difference to the degree of his impairment resulting from his work injury, but rather the Medical Assessor concluded that the existence of the plasmacytoma was a predominant cause of his injury and made a deduction of two-thirds on that basis.
The appellant submitted that given the nature of his injury and his pre-existing condition it is difficult to determine what proportion of his permanent impairment is due to the plasmacytoma. The appellant submitted that, as Dr Doig had done, the Medical Assessor ought to have assumed the deduction is 10% in accordance with s 323(2).
The appellant provided a summary of his submissions being that the Medical Assessor did not explain how his plasmacytoma contributed to his current level of impairment; did not substantiate how his plasmacytoma contributes to the factors currently making up his WPI; and did not determine based on the evidence if any proportion of his permanent impairment is due to the pre-existing condition compared to what was due to the subsequent injury.
In reply, the respondent submitted that a pre-existing condition, abnormality or prior injury must be taken into account if based on the available evidence it contributes to the overall level of permanent impairment assessed. The respondent submitted that the Medical Assessor applied his medical judgment, knowledge and experience in determining the level of the appellant’s permanent impairment and what proportion of that permanent impairment was due to the pre-existing condition. The respondent submitted that the Medical Assessor found that the evidence established that the plasmacytoma affected the appellant’s thoracic spine and it was accordingly open to the Medical Assessor to apply deduction under s 323.

FINDINGS AND REASONS

The procedures on appeal are contained in s328 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.
The Appeal Panel notes that no issue has been taken by either the appellant or the respondent with the Medical Assessor’s assessment that the appellant has 17% WPI relating to his thoracic spine. In any event, the Appeal Panel agrees that is the correct assessment of the degree of the appellant’s overall permanent impairment.
Section 323(1) of the 1998 Act requires a Medical Assessor to make a deduction when assessing the degree of permanent impairment a worker has from a workplace injury for any proportion of that impairment that is due to a previous injury or that is due to any pre-existing condition or abnormality. That task requires a consideration of whether a previous injury or pre-existing condition or abnormality contributes to an impairment caused by work injury. A proportion of permanent impairment will be due to a pre-existing condition if that condition makes a difference to the outcome for the worker in terms of the degree of permanent impairment a worker has from a work injury.[1] Hence, to the extent that the pre-existing condition has made a difference to a worker’s permanent impairment from a work injury, there must be a deduction.
[1] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45].
Further, the task of a Medical Assessor under s 323(1) requires the Medical Assessor to determine the contribution the pre-existing condition makes to the impairment resulting from an injury not the contribution of the pre-existing to the occurrence of an injury.[2]
[2] State of NSW (Central Coast Local Health District) v Page [2023] NSWSC 935 at [64]-[73]
A Medical Assessor’s assessment of the extent to which a worker’s permanent impairment resulting from a work injury is due to a pre-existing condition is a matter for medical assessment based on the evidence before the Medical Assessor.[3]
[3] Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [74]-[86].
There is no controversy in this case, and it is obvious from the evidence in any event, that the appellant had a pre-existing condition, specifically a T5 plasmacytoma. That was a critical factor in the occurrence of the appellant’s work injury. Indeed, if the appellant did not have that pre-existing condition, in all likelihood he would not have suffered the injury he did. In other words the pre-existing condition increased the likelihood of risk of injury for the appellant, which risk materialised by virtue of a specific task he undertook on 3 May 2021.
The Appeal Panel considers that the Medical Assessor incorrectly approached the task of assessing the deduction to be made under s 323(1) for the proportion of appellant’s injury that was due the appellant’s pre-existing condition of plasmacytoma. The approach the Medical Assessor adopted was to consider the nature of the injury the appellant would have suffered if he did not have a T5 plasmacytoma and what permanent impairment the appellant would have had from such hypothetical injury. That is to say, the approach the Medical Assessor took was to consider the extent to which the plasmacytoma was a factor in the occurrence of the appellant’s injury, and having determined that the appellant would not have suffered an injury to his thoracic spine that would have resulted in an impairment greater than that allowed under Thoracic Category DREII of Table 15-4 of AMA5, assessed any permanent impairment the appellant had that was greater than that allowed under that category as being due to the pre-existing condition. The Medical Assessor erred by not considering the extent to which the plasmacytoma contributes to the appellant’s permanent impairment at the time of assessment.
Simply put, the Medical Assessor erred by focusing on the degree to which the pre-existing condition was a factor in the occurrence of the appellant’s injury rather than the extent to which the plasmacytoma contributes to the appellant’s permanent impairment at the time of assessment.
The Appeal Panel notes that the plasmacytoma appears to have been successfully treated through radiotherapy but of course there is still a risk that the cancer has not been totally eliminated. Whatever the case, the pre-existing condition of plasmacytoma has either been eliminated or substantially diminished. The plasmacytoma resulted in the appellant having a diseased and weakened T5 vertebra. Due to the task the appellant did on 3 May 2021, that diseased and weakened vertebra was fractured. However, because the appellant’s plasmacytoma has either now been eliminated or substantially reduced, due to effective treatment, the proportion of the appellant’s permanent impairment consequent upon his injury of a compressed fracture of the T5 vertebra that is due to that pre-existing condition is necessarily modest. It is not two-thirds as the Medical Assessor assessed.
In the Appeal Panel’s view, given there can be no certainty regarding the exact outcome of the appellant’s treatment for the plasmacytoma, that is whether it has been eliminated or only substantially diminished, it is difficult or too costly to determine the extent to which the appellant’s pre-existing condition contributes to his current permanent impairment. Given that, the Medical Assessor was wrong not to assume, in accordance with s 323(2) of the 1998 Act, that the deductible proportion for the purposes of s 323(1) was 10%. Making that assumption was not at odds with the available evidence.

For these reasons, the Appeal Panel has determined that the MAC issued on 19 April 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:	W5836/22
Applicant:	Wayne Headon
Respondent:	Tasco Carriers 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)

Thoracic spine

3/05/2021

Chapter 4

Chapter 15, Table 15-4

1/10

15%

Total % WPI (the Combined Table values of all sub-totals)

15%

[2023] NSWPICMP 426

4 September 2023