Hejazi v Rail Corporation New South Wales
[2023] NSWPICMP 291
•26 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hejazi v Rail Corporation New South Wales [2023] NSWPICMP 291 |
| APPELLANT: | Ezzat Hejazi |
| RESPONDENT: | Rail Corporation New South Wales |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| MEDICAL ASSESSOR: | Dr David Crocker |
| DATE OF DECISION: | 26 June 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) correctly tallied applicable modifiers of Table 4.2 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 by firstly combining the applicable modifiers to achieve a single amount that the MA then combined with the whole person impairment; MA otherwise assessed appellant to have; Appeal Panel held MA was correct to do so; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant, Ezzat Hejazi, appeals against the assessment of Medical Assessor Dr Robert Kuru regarding the degree of permanent impairment from an injury he suffered to his cervical spine on 27 January 2004. The Medical Assessor certified in a medical assessment certificate issued on 20 February 2023 (the MAC) that he assessed the appellant had 18% whole person impairment (WPI) from the injury.
The key parts of the Medical Assessor’s explanation for how he calculated the appellant’s permanent impairment are found in parts 10b and 11 of the MAC, which are:
“10b. Mr Hejazi underwent a left sided C5/6 decompressive foraminotomy and subsequently underwent a right sided C4/5, 5/6, 6/7 decompressive foraminotomy. The SIRA Guidelines page 29 paragraph 4.37 direct that surgical decompressive procedures be assessed as DRE Category III. According to AMA 5 page 392 Table 15.5, this is assessed as 15% whole person impairment. A further 2% impairment is assessed according to AMA 5 page 28 paragraph 4.34 for restrictions of activities of daily living, giving a 17% whole person impairment. According to the SIRA Guidelines page 29, a further 2% is assessed for a second operation and a further 2% assessed for second and third levels. 17% combined with 4% gives a 20% whole person impairment.
…
11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Cervical spondylosis.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) His injury represents an aggravation of pre-existing degenerative disease.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)”
The appellant relies on the following grounds for 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,
· 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 the material before the Appeal Panel is sufficient to enable the Appeal Panel to determine the appeal the appellant has brought against the MAC.
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 appellant raises two issues in his appeal: firstly, whether the Medical Assessor correctly calculated his permanent impairment relating to his cervical spine, and specifically whether the Medical Assessor correctly tallied the modifiers allowed under Table 4.2 of the Guidelines which apply where surgery has been performed; and, secondly, whether the Medical Assessor erred by making a deduction under s 323(1) of the 1998 Act for a proportion of his permanent impairment that the Medical Assessor considered was due to a pre-existing condition.
There was no controversy from either the appellant or the respondent regarding the Medical Assessor assessing the appellant had 17% WPI by virtue of the appellant’s impairment with respect to his cervical spine being assessed as being DRE Cervical Category III 5 and the appellant having 2% WPI for the impact his injury has on his activities of daily living.
In summary, the appellant submitted that the Medical Assessor erred with respect to the calculation he undertook relating to the modifiers allowed under Table 4.2 of the Guidelines, because the Medical Assessor firstly added the modifiers for which the appellant was entitled under Table 4.2 for the surgeries he had by way of treatment of his injury, so to compute a single figure and then combined that single figure, in accordance with the Combined Value Chart at pages 604 and 605 of AMA 5 (the CVC table), to the 17% WPI the Medical Assessor assessed the appellant otherwise had. The appellant submitted that the Medical Assessor ought to have combined, in accordance with the CVC table, each of the modifiers to which he was entitled under Table 4.2 of the Guidelines. Had the Medical Assessor done so then the Medical Assessor would have assessed him to have 21% WPI.
The appellant also submitted that the Medical Assessor based his assessment on incorrect criteria and made an error by finding that a proportion of his permanent impairment was due to a pre-existing condition and making a deduction on account of that under s 323(1) of the 1998 Act. The appellant submitted that he did not suffer any symptoms or disabilities before his injury and that there was no evidence that he would not have been entirely free from impairment but for the incident. The appellant submitted that the Medical Assessor provided no explanation for the deduction that he made under s 323(1).
In reply, the respondent submitted, with respect to the tallying of the modifiers under Table 4.2 of the Guidelines, that the Guidelines require combination of an “additional appropriate amount from the Table”. The respondent submitted that requires a Medical Assessor to calculate a single figure for the modifiers of Table 4.2 that apply and then to combine that with the WPI value assessed in accordance with Table 15-5 of AMA 5.
The respondent observed that the Medical Assessor selected the appropriate DRE category, being DRE Category III and then added to the baseline for that 2% WPI for the impact of the appellant’s injury on the appellant’s activities of daily living to reach the figure of 17% WPI. The respondent further observed that the Medical Assessor then determined the appropriate additional amount from Table 4.2 that applied to the appellant, being 2% for the second operation and 2% for the second and third levels on which surgery was performed, which added to 4% WPI, and then, according to the respondent, correctly combined that to the 17% WPI resulting in 20% WPI.
The respondent further submitted that there was medical evidence available to the Medical Assessor to warrant the deduction the Medical Assessor made under s 323(1) of the 1998 Act. The respondent observed that the Medical Assessor noted that an MRI of the appellant’s cervical spine which showed degenerative disease at C3/4, C4/5 and C5/6 with right foraminal stenosis at C3/4 and C4/5. The respondent submitted that that diagnostic investigation provided evidence that the appellant suffered from degenerative disease of his cervical spine. The respondent also referred to a report of Dr Thomas Rosenthal dated 31 August 2012 in which Dr Rosenthal referred to an MRI of the appellant’s cervical spine done on 7 August 2012 showing degeneration. The respondent observed that Dr Rosenthal considered that disc abnormalities were present prior to the appellant’s injury in 2004.
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.
It is uncontroversial that the calculation of the appellant’s permanent impairment had to include several modifiers provided in Table 4.2 that is contained in clause 4.37 of the Guidelines. Further, it is uncontroversial that the modifiers in this case were 2% for the second operation the appellant had and 1% for surgery at a second level of the cervical spine and a further 1% for the surgery of the third level of his cervical spine. The issue in this case is whether the Medical Assessor was correct to add those figures to obtain a single figure to be combined, in accordance with the CVC table, to the 17% WPI he otherwise assessed the appellant had or whether the correct approach was to combine separately each of the modifiers that applied to the appellant to the 17% WPI.
The Appeal Panel notes that clause 4.37 of the Guidelines contains a summary regarding how a Medical Assessor must calculate a worker’s impairment where a worker has surgery on his or her spine. That summary reads as follows:
“In summary, to calculate whole person impairment (WPI) for persisting radiculopathy (as per definition) following surgery:
• Select the appropriate DRE category from Table 15-3, 15-4, or 15-5;
• Determine a WPI value within the allowed range in Table 15-3, 15-4 or 15-5 according to the impact on the worker’s ADL
• Combine this value with the appropriate additional amount from Table 4.2 to determine the final WPI.”
The Appeal Panel considers that this instruction within the Guidelines requires a Medical Assessor to calculate firstly a single additional amount under Table 4.2, based on the modifiers that are applicable in a worker’s circumstance, and then to combine that single amount with the impairment the Medical Assessor has otherwise assessed a worker has within the allowed range of Table 15-5 of AMA 5. The Appeal Panel observes that the phrase “appropriate additional amount” used in the third step within clause 4.37 refers to a single amount that is to be added to the amount calculated under the first and second steps. Given that, the Appeal Panel considers, contrary to what the appellant submitted, that a Medical Assessor must firstly combine whatever of the modifiers within Table 4.2 are applicable to a worker’s situation to calculate an “appropriate additional amount” to be combined with the amount the Medical Assessor has calculated under steps 1 one and two of clause 4.37. That is what the Medical Assessor did in this matter.
The Appeal Panel considers however the Medical Assessor was wrong to find that the appellant had any pre-existing condition in his cervical spine that would contribute to his current permanent impairment. The Appeal Panel notes that at the time the appellant suffered injury he was 33 years of age, which is relatively young. There is no evidence before the Commission that indicates there was any imaging done around the time of his injury that would indicate the appellant had any degeneration in his cervical spine. The evidence that is before the Appeal Panel indicates that the appellant was asymptomatic prior to his injury. As far as the Appeal Panel can tell from the material that is before it, the earliest investigation of the appellant’s cervical spine was an MRI done on 1 September 2010. Approved Medical Specialist Dr John Beer in a Medical Assessment Certificate he issued on 25 November 2013 provided a summary of the report on that investigation. Approved Medical Specialist Beer also provided a summary of a subsequent MRI done on 29 November 2011. It is apparent to the Appeal Panel from what Dr Beer set out in that Medical Assessment Certificate relating to those investigations that there was significant degeneration in the appellant’s cervical spine that occurred between the two investigations.
What all this indicates to the Appeal Panel, that is, the appellant being young at the time of his injury and likely being asymptomatic immediately before his injury and significant degeneration occurring in his cervical spine in the space of year some six to seven years after his injury, is that the degeneration in his cervical spine evident in the investigations that were done at least six years after his injury occurred after his injury and did not exist before the injury. In other words, the likelihood is that the appellant did not have a pre-existing condition at the time of his injury.
Consequently, s 323(1) of the 1998 Act ought not to have been engaged in this matter.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 February 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: | W7536/22 |
Applicant: | Ezzat Hejazi |
Respondent: | Rail Corporation New South Wales |
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 Dr Robert Kuru 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) |
| Cervical spine | 27/1/2004 | Chapter 4, paragraphs 4.34, 4.37, Table 4-2 | Chapter 15 Table 15-5 | 20% | - | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0