Karan v Parexel International Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Karan v Parexel International Pty Ltd [2022] NSWPICMP 395
APPELLANT:	Chrishan Kushal Karan
RESPONDENT:	Parexel International Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Dr Tommasino Mastroianni
MEDICAL ASSESSOR:	Dr Drew Dixon
DATE OF DECISION:	12 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor (MA) erred by finding appellant had pre-existing condition; whether MA erred by not assessing scarring where referral made no mention of scarring but Independent Medical Examination assessment on which appellant relied to support claim assessed whole person impairment (WPI) from scarring; Held – Appeal Panel found Medical Assessment Certificate (MAC) contained a demonstrable error; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 July 2022 Chrishan Kushal Karan, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
21 June 2022.
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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was employed as a clinical research associate with Parexel International Pty Ltd, the respondent. He suffered a psychological injury due to circumstances to which he was exposed in his employment, which injury was deemed to have happened on
1 June 2016. In June 2019 the appellant and the respondent entered into a complying agreement, within the meaning of s 66A(1) of the Workers Compensation Act 1987 (the 1987 Act), requiring the respondent to pay the appellant compensation under s 66 of the 1987 Act for 22% whole person impairment (WPI) resulting from his psychological injury.
In October 2017, the appellant travelled to Washington DC with his father. He had been taking benzodiazepine for treatment of his psychological injury. He ran out of these medications whilst in Washington. On 11 October 2017 he suffered a benzodiazepine withdrawal seizure resulting in his falling and fracturing vertebrae in his thoracic spine and also injuring his neck and lower back.
In March 2020 the appellant consulted neurosurgeon Dr Andrew Kam, who requested the appellant undergo an MRI scan and bone scan. The MRI scan revealed the presence of a left sided C5/6 disc herniation impacting the C6 nerve root and evidence of spondylosis involved in the C4/5 and C3/4 levels, and revealed the presence of a left sided L5/S1 disc herniation contacting the left S1 nerve root. Dr Kam recommended the appellant have an anterior cervical discectomy and fusion of the C3/4, C4/5 and C5/6 levels and thereafter a L5/S1 microdiscectomy. The surgery to his cervical spine was done on 15 June 2020 and to his lumbar spine on 10 August 2020.
The appellant’s lawyers qualified neurosurgeon and spinal surgeon Dr Renata Abraszko to examine the appellant and report to them on the injuries the appellant suffered in the fall on 11 October 2017. Dr Abraszko produced a report on 2 December 2020. Dr Abraszko said that as a result of the fall the appellant injured his neck, thoracic spine and lower back. She said there were no pre-existing injuries, conditions or factors contributing to the appellant’s injury. She said that the appellant’s injury had not yet stabilised and that he would achieve maximum medical improvement about 12 months after his spinal surgery.
The appellant’s lawyers subsequently wrote to Dr Abraszko asking her to assume that the appellant had reached maximum medical improvement and based on that assumption to advise them what the appellant’s WPI is. In a report dated 17 February 2021 Dr Abraszko advised she assessed the appellant had 29% WPI for the cervical spine and 1% for scarring due to the surgery on the cervical spine, 20% WPI for the lumbar spine and 1% WPI for scarring due to the surgery on the lumbar spine, and 15% WPI for the thoracic spine. She advised that in accordance with the Combined Values Chart at pages 604 to 606 in AMA 5 combined to 53%.
Relying on that report of Dr Abraszko, the appellant’s lawyers wrote to the respondent’s lawyers on 4 November 2021 advising that the appellant claimed compensation from the respondent under s 66 of the 1987 Act for 53% WPI relating to the fall that occurred on
11 October 2017.
On 20 April 2022 the respondent’s insurers wrote to the appellant, care of his lawyers, notifying him under s 78 of the 1998 Act that it disputed he was entitled to the compensation he claimed. It advised him that s 66(1A) of the 1987 Act provides that a worker can only make one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury and that it believed that he had exhausted his one claim for permanent impairment lump sum compensation for his injury when he was paid compensation under s 66 for 22% WPI from his primary psychological injury. The insurer also advised the appellant that it did not consider the incident on 11 October 2017 was a new injury within the meaning of s 4 of the 1987 Act and did not entitle the appellant to any additional permanent impairment lump sum compensation. It advised him that it did not consider that s 65A(4) of the 1987 Act was engaged in his circumstances, such that he would be entitled to receive compensation for the impairment resulting from whichever of his physical injury or psychological injury resulted in a greater amount of compensation and this was because his physical injury did not result out of the same incident as his psychological injury, which is what s 65A(4) requires, but was rather secondary to his psychological injury.
The appellant thereupon lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD) seeking determination of his claim for compensation under s 66 for permanent impairment from an injury he described in the ARD in these terms:
“falling from a seizure due to withdrawal of medication relating to work related psychological injury, causing injuries to cervical spine, thoracic spine and lumbar spine.”
He detailed in the ARD that the total WPI percentage for which he sought compensation was 53 and that the “systems claimed” were cervical spine, lumbar spine and thoracic spine.
The matter came before Member Perignon who on 13 May 2020 made the following determination with the consent of the parties:
“1. Noting that an appointment has already been arranged with a Medical Assessor on 27 May 2022, the matter is remitted to the President for referral to a Medical Assessor, to assess whole person impairment (cervical spine, lumbar spine, thoracic spine) as a result of injury on 11 October 2017.
2. The Registry is requested to furnish the Medical Assessor with the following.
a. Application to Resolve a Dispute with attached documents.
b. Reply with attached documents.
3. Note that the respondent reserves its position with respect to the disputes raised in the section 78 notice dated 20 April 2022, and the applicant agrees that the respondent does not abandon any dispute raised in that notice.”
A delegate of the President then referred to Medical Assessor Gothelf a medical dispute described in the referral as follows:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
·the degree of permanent impairment of the worker as a result of an injury (s319(c))
·whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
·whether impairment is permanent (s319(f))
·whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 11 October 2017
Body part/s referred: Cervical Spine, Lumbar Spine, Thoracic Spine
Method of assessment: Whole Person Impairment”
Medical Assessor Gothelf examined the appellant on 27 May 2022 and as mentioned above, issued the MAC on 21 June 2022. He certified that he assessed the appellant’s total WPI was 28% WPI due to his cervical spine, 5% WPI due to his thoracic spine and 20% WPI due to his lumbar spine. He said that the appellant suffered pre-existing cervical spine degenerative changes and lumbar spine disc protrusion and nerve root impingement which he considered contributed to the appellant’s WPI that resulted from the injury on
11 October 2017. He said that the extent of the deduction for that under s 323(1) would be difficult or costly to determine and so he applied the provisions of s 323(2) and assessed the deductible portion as one-tenth. Consequently he certified he assessed the appellant had 25% WPI relating to his cervical spine resulting from the injury on 11 October 2017 and 18% WPI relating to his lumbar spine from the injury on 11 October 2017. When those two amounts and the 5% WPI he assessed for the appellant’s thoracic spine were combined, 42% WPI was achieved, which is what he certified was the appellant’s WPI from the injury on the 11 October 2017.

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 WorkCover Medical Assessment Guidelines 2006.
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 for it to determine the appeal.

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 appellant’s appeal against the MAC relates to two matters. Firstly, the deduction that Medical Assessor Gothelf made under s 323(1) for the conditions Medical Assessor Gothelf considered were pre-existing in the appellant’s cervical spine and lumbar spine and, secondly, Medical Assessor Gothelf not assessing any permanent impairment for scarring from the surgeries the appellant had to his cervical spine and lumbar spine.
No issue was taken with respect to Medical Assessor Gothelf’s findings from his examination of the appellant or his assessment of the appellant’s overall impairment relating to his lumbar spine, thoracic spine and cervical spine. It is not necessary therefore to repeat in this Statement of Reasons the Medical Assessor’s findings from his examination or his explanation and calculations for his ratings of the appellant’s overall impairment relating to his cervical spine, thoracic spine and lumbar spine.
Relevant to the issue of the deduction under s 323, Medical Assessor Gothelf noted within the MAC that the appellant reported not having suffered any previous work related injuries or any major motor vehicle accidents resulting in injury. The Medical Assessor further noted that the appellant reported experiencing no problems with his neck, thoracic or lumbar spine prior to his falling on 11 October 2017.
Medical Assessor Gothelf noted that the appellant provided him an MRI imaging study that was done on 28 August 2018 relating to his thoracic spine, an X-ray done on 29 July 2020 of his cervical spine and an X-ray of lumbar spine done on 22 October 2020, which the Medical Assessor reviewed. Medical Assessor Gothelf also had regard to reports of several radiological investigations the appellant had done subsequent to his fall on 11 October 2017, being a CT scan of his full spine on 6 November 2017, a CT scan of his full spine done on
6 March 2020, a local bone scan done on 9 March 2020, a bone scan done on
20 March 2020 and an MRI of his whole spine done on 31 March 2020.
Medical Assessor Gothelf said that the MRI done on 31 March 2020 revealed degenerative disease at C3/4 to C5/6 and uncovertebral joint osteoarthritis. The Medical Assessor said he considered these findings were pre-existing.
The Medical Assessor also said that an L5/S1 disc protrusion and nerve root impingement, which the same MRI revealed, were pre-existing and not caused by the work place injury on
11 October 2017.
The Medical Assessor said that the pre-existing conditions in the appellant’s cervical spine and lumbar spine contributed to the persistent symptoms the appellant experienced and the appellant’s need for surgery. Based on that, the Medical Assessor made a deduction under s 323(1) when assessing the appellant’s permanent impairment relating to his cervical spine and lumbar spine. The Medical Assessor said that the extent of the deduction to be made would be costly and would be difficult to determine and he accordingly assumed under
s 323(2) the deducted proportion was to be one-tenth.
The Medical Assessor noted that Dr Abraszko stated in her report of 2 December 2020 that there were no pre-existing conditions that contributed to the appellant’s injury. The Medical Assessor agreed that the appellant was not suffering symptoms prior to the subject injury but the Medical Assessor said that the presence of pathology on the MRI of 31 March 2020 implied a pre-existing condition was likely contributing to the appellant’s current symptoms and contributed to need for surgical treatment. The Medical Assessor considered that it was unlikely that the pathology revealed on the MRI of 31 March 2020 was caused by the subject injury on 11 October 2017.
With respect to the appellant’s scarring, the Medical Assessor noted in the MAC that the appellant had a 3 cm well healed scar on his neck that was hidden in the crease of his neck. The Medical Assessor also observed that the appellant had a 4 cm incision scar on the left and right side of the posterior lower back that was well healed. The Medical Assessor did not explain whether or not the scarring warranted an assessment of permanent impairment. It would seem that that was due to there being no indication in the referral form sent to the Medical Assessor that the appellant’s scarring was to be assessed for permanent impairment. That in turn seems to be due to the fact that the appellant did not list in the ARD scarring as a “systems claimed” that was to be assessed for permanent impairment.

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 Medical Assessor Gothelf erred by making a deduction under s 323 on the basis of the MRI report of 31 March 2020. The appellant observed that the MRI was taken 2.5 years after the incident. The appellant submitted that a report on an investigation done 2.5 years after an incident without objective medical evidence prior to the incident revealing any condition could not be used as a basis to diagnose a person had a pre-existing condition at the time of the incident. The appellant noted he was not symptomatic at the time of the incident and was working and enjoying his life and completing his activities of daily living. The appellant submitted that “the only reasonable conclusion in the circumstances was that he did not have a relevant pre-existing condition”.
The appellant acknowledged that the Medical Assessor not making any assessing of impairment for scarring may be due to the referral not specifically including “TEMSKI” or impairment of the skin. The appellant submitted, relying upon Skates v Hills Industries Ltd[1] that his claim for compensation included scarring and notwithstanding the referral did not specifically require an assessment of impairment for scarring, an assessment still ought to have been done.
[1] [2021] NSWCA 142 (Skates)
In reply, the respondent submitted, relying upon Vitaz v Westform (NSW) Pty Ltd[2], that it does not matter that a pre-existing condition may be asymptomatic prior to the injury. The respondent submitted that what is relevant is whether the pre-existing condition is a contributing factor causing permanent impairment. The respondent referred to several pieces of evidence which the respondent submitted supported the Medical Assessor’s conclusion, based on the MRI done on 31 March 2020, that the appellant had pre-existing conditions in his lumbar spine and cervical spine that contribute to his impairment from the incident on 11 October 2017. That evidence was:
(a)     a report on a full spine CT scan done on 7 November 2017 which noted mild disc degeneration and disc bulging at C4/5 and C5/6 and mild disc bulge at 3 lower lumbar disc and a rudimentary S1/2 disc and rudimentary S1/2 facet joint;
(b)     a clinical note of Dr Vo dated 25 October 2020 referring to the appellant having a BMI of 30.7;
(c)     a clinical note of Dr Leon on 7 May 2011 referring to the appellant having back pain muscle spasm;
(d)     a clinical note of Dr Vo on 3 February 2012 referring to the appellant having neck pain, upper back pain, and his needing to lose weight;
(e)     a clinical note of Dr Hakam dated 26 May 2013 referring to diagnostic imaging being requested for the appellant’s upper thoracic spine;
(f)     a clinical note of Dr Vo on 29 June 2013 referring to the appellant having back pain, stiffness, X-ray slight scoliosis, soreness mid-thoracic and needing osteopath and exercise, and
(g)     a clinical note of Dr Vo dated 23 October 2015 noting that the appellant had stiffness in his neck reduced range of movement and rotation in his neck and a left wry neck.
[2] [2011] NSWCA 254
The respondent observed that the referral to the Medical Assessor did not include scarring or TEMSKI in the body parts referred. The respondent submitted that was likely the result of there being no reference to scarring or TEMSKI in the listed systems claimed in the ARD. The respondent submitted that “it cannot be said that the MAC contains a demonstrable error by failing to assess scarring/TEMSKI, as that body part/system was not referred to the Medical Assessor as part of the assessment”. The respondent made no submissions relating to Skates.

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. *The clinical material to which the respondent referred does not substantiate that there was any degeneration in the appellant’s cervical and lumbar spine prior to the incident on 11 October 2017.

Scarring

The appellant’s claim for compensation under s 66 of the 1987 Act for permanent impairment resulting from the injuries he suffered from the fall on 11 October 2017 was based on the report of Dr Abraszko dated 17 February 2021. Dr Abraszko clearly detailed in that report that her assessment of the appellant’s permanent impairment from his injuries on
11 October 2017 included impairment from scarring the appellant had from surgeries to treat his injuries. Dr Abraszko assessed the appellant to have 53% WPI relating to the physical injuries the appellant suffered in that fall and that assessment included 1% WPI for scarring relating to the surgery the appellant had on his cervical spine and 1% WPI relating to the scarring the appellant had from the surgery he had to his lumbar spine. The appellant’s solicitors provided a copy of Dr Abraszko’s report to the respondent’s lawyers.

It is the case that the ARD in the section titled “Permanent Impairment/Pain and Suffering” did not list scarring as a “systems claimed”. Nevertheless the total WPI percentage specified within that part of the ARD was 53%, which is what Dr Abraszko had assessed the appellant’s impairment to be. That indicates the appellant continued to rely upon
Dr Abraszko’s report to support his claim and that he was not foregoing any entitlement he had to compensation for permanent impairment due to scarring as a consequence of the surgeries he had to his cervical and lumbar spine. His omission in the ARD to specify scarring as a “systems claimed” was simply an error.
The Appeal Panel is aware that it is the Commission’s practice to forward in draft form to the parties’ respective lawyers the referral to be sent to a Medical Assessor before providing the referral to the Medical Assessor. This is for the purpose of ensuring that if there is an error in the form that error is corrected prior to the Medical Assessor conducting an assessment of the worker’s impairment. It would seem that neither party informed the Commission that the referral in this case needed correction.
As was the case in Skates, the failure of both parties to raise with the Commission the omission in the referral of scarring as a body part to be assessed is inexplicable.[3] Nevertheless, the appellant’s claim against the respondent for compensation under s 66 of the 1987 Act included compensation for permanent impairment from scarring due to the surgeries he had to his cervical spine and lumbar spine. The ARD misdescribed his claim. That in turn led to an error in the referral. It seems to the Appeal Panel that the Medical Assessor was not aware that he was required to assess the appellant’s permanent impairment due to scarring and consequently, did not turn his mind to doing so. As a consequence the MAC contains a demonstrable error.[4]
[3] Skates at [36]
[4] Skates [27] – [35], [44] and [46]; and Sakr v Merrylands Christian Pre-School Association Ltd [2022] NSWCA 768 at [40] – [44]
The Appeal Panel observes that the Guidelines at [14.5] instruct that is the skin to be assessed as a single organ and that all non facial scarring is measured together as one overall impairment. Individual scars are not to be assessed separately and the results combined. The Appeal Panel observes that Dr Abraszko did not abide that instruction. She assessed the appellant’s impairment from scarring from his cervical spine separately from his scarring from his lumbar spine, which is contrary to the requirement of [14.5] of the Guidelines.
Those members of the Appeal Panel who are Medical Assessors note, given the surgery the appellant had on his cervical spine, that any scarring from this surgery would disappear into the appellant’s crease in his neck. That indeed is what Medical Assessor Gothelf found when he examined the appellant. Further, given the nature of the surgery the appellant had to his lumbar spine, he would have two parallel scars on his lower back, and again that is what Medical Assessor Gothelf found, with the length of the scars being 4 cm. Medical Assessor Gothelf also observed the scars were well healed.
The Appeal Panel considers that the appellant would be conscious of the scar on his lumbar spine. Further, although well healed, it is likely there would be colour contrast between the scar and the surrounding skin. The Appeal Panel considers the appellant would be easily able to identify the location of his scar. The Appeal Panel considers that the scar would be visible when the appellant is wearing normal swimming attire.
In those circumstances the Appeal Panel considers that the appellant’s scarring best fits the criteria for 1% WPI within Table 14.1 of the Guidelines.

Section 323 deduction

The Appeal Panel considers that Medical Assessor Gothelf was wrong to conclude that the appellant had a pre-existing condition in either his cervical spine or lumbar spine as at the time he fell on 11 October 2017.
The Appeal Panel observes that the appellant was at that time 31 years of age and hence relatively young. The evidence reveals he had not previously suffered any trauma to his cervical spine or lumbar spine. The evidence indicates that he had problems with his weight before the fall. The evidence reveals that he had not for many years prior to the fall on
11 October 2017 suffered any symptoms in his lumbar spine or neck.
Those parts of the clinical records that the respondent highlighted in its submission as providing support for the Medical Assessor’s conclusion that the appellant had pre-existing conditions in his lumbar spine and cervical spine do not in the Appeal Panel’s view do so. A back spasm in 2011 and back stiffness in 2013, when the appellant was between 24 and 26 years of age, are unlikely, in the absence of any persistent or subsequent symptom, to have been due to degeneration in the appellant’s lumbar spine. The appellant’s stiff and wry right neck in October 2015 is also, absent there being any further symptoms, to have been due to degeneration in his cervical spine.
The Appeal Panel observes that there is no evidence of any investigation having been done of the appellant’s cervical spine or lumbar spine prior to the incident on 11 October 2017. In other words there is no objective evidence from before that date that reveals the condition of the appellant’s spine as at the time he fell.
Being overweight or obese is unlikely to cause degenerative change in someone who is 31 years of age.
In the Appeal Panel’s view the absence of the appellant suffering repeated symptoms in his lumbar spine or cervical spine prior to the fall on 11 October 2017, and noting the appellant’s age, the Appeal Panel considers that the findings revealed by the MRI done on
31 March 2020 do not provide reliable evidence that the appellant had any adverse pathology in his cervical spine or lumbar spine as at 11 October 2017.
It is for these reasons that the Appeal Panel considers the Medical Assessor was wrong to conclude that the appellant had a pre-existing condition in his lumbar spine and cervical spine. Consequently the MAC contains a demonstrable error for that reason also.
Correcting the errors in the MAC, the Appeal Panel assesses the appellant to have 28% WPI relating to his cervical spine, 5% WPI relating to his thoracic spine, 20% WPI relating to his lumbar spine and 1% WPI relating to scarring from the incident on 11 October 2017, which combines to 46% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 June 2022 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:	W2163/22
Applicant:	Chrishan Kushal Karan
Respondent:	Parexel International 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 Todd Gothelf and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Cervical spine	11/10/17	Chapt 4; 4.34, 4.37	15-5	28%	-	28%
2. Thoracic spine		Chapt 4; 4.30	15-4	5%	-	5%
3. Lumbar spine		Chapt 4; 4.34, 4.37	15-3	20%	-	20%
4. Scarring		Chapt 14; Table 14.1	1%	-	1%
Total % WPI (the Combined Table values of all sub-totals)					46%

[2022] NSWPICMP 395

12 October 2022