Khullar v ANZ Banking Group Limited
[2021] NSWPICMP 129
•20 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Khullar v ANZ Banking Group Limited [2021] NSWPICMP 129 |
| APPELLANT: | Sonia Khullar |
| RESPONDENT: | ANZ Banking Group Limited |
| APPEAL PANEL: | Member Paul Sweeney Dr Philippa Harvey-Sutton Dr Drew Dixon |
| DATE OF DECISION: | 20 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker against finding by Medical Assessor (MA) of DRE Cervical Category I in respect of neck injury; where MA recorded complaints of intermittent non-verifiable radicular symptoms in C6-8 dermatomal distribution; where respondent’s Independent Medical Expert accepted the presence of non-verifiable radicular symptoms; where no valid reason to doubt the authenticity of the complaints; Held- as non-verifiable radiculopathy is a criterion for DRE II and not for DRE I, the AMS should have found DRE Cervical Category II; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 March 2021, Sonia Khullar (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (formerly an Approved Medical Specialist or AMS). The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on18 February 2021.
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,
· 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant is 39 years of age. She is employed by ANZ Banking Group Ltd (the respondent) as a personal banker. On 21 May 2018, the appellant was removing an elastic band from a bundle of bank notes when the band broke hitting her in the right eye. She suffered a hyperextension injury to her neck. She also experienced pain her right shoulder.
Subsequently, on 7 June 2018, the appellant was involved in a motor vehicle accident while on a journey to consult an ophthalmic specialist, Dr Alman Ogane, in respect of her eye injury. The appellant’s stationary vehicle was struck in the rear by another vehicle. She developed increasing neck and right shoulder symptoms. Following this incident, she was referred by her general practitioner, Dr Venkatesan, to Dr Chandra Dave, an orthopaedic surgeon, who investigated and treated both her neck and right shoulder and to Dr Patel, a neurologist.
The respondent initially disputed that the injuries sustained by the appellant in the motor vehicle accident were compensable. However, on 1 July 2019, an arbitrator of the former Workers Compensation Commission determined that there was a “real and substantial connection” between the appellant’s employment and the motor vehicle accident so that the injuries sustained in the accident arose in the course of her employment for the purposes of s 10 of the Workers Compensation Act 1987 (the 1987 Act).The arbitrator also held that both injuries materially contributed to the condition of the appellant’s neck and right shoulder.
On 20 January 2020, the decision of the arbitrator was upheld by Deputy President Michael Snell in Australia and New Zealand Banking Group Ltd v. Khullar [2020] NSWWCCPD 3.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the 1987 Act. Her claim for permanent impairment compensation is posited on the opinion of Dr Bodel, an orthopaedic surgeon, who in a report dated 12 June 2020 expressed the opinion that the appellant suffered 15% whole person impairment (WPI) as a result of the injuries. He assessed the appellant as having 5% impairment of the cervical spine in accordance with DRE Cervical Category II and added a 2% loading for the “moderately compromised” activities of daily living(ADLs) in accordance with items 4.34 and 4.35 of the Guidelines. He assessed 9% WPI of the right upper extremity. Combining these figures gave rise to 15% WPI.
Dr Bodel initially saw the appellant on 24 November 2018. He recorded the following findings:
“There is impingement in the right shoulder but not the left. There is no restriction of elbow, wrist or hand movement on either side. There is no clinical sign of radiculopathy. The description of the sensory loss in the right hand is in the dermatomal distribution particularly in the C7 distribution. There is a good range of lateral bending and rotation of the thoracic spine and impairment of straight-leg-raising for neurological abnormality in the lower limbs.”
Dr Bodel expressed the opinion that an MRI scan of the appellant’s cervical spine demonstrated minor disc pathology. In respect of her right shoulder, he stated:
“There is evidence of bursitis but an intact rotator cuff. This is her main area of ongoing complain (sic) and she does need further treatment from Dr Dave.”
By his supplementary report, the doctor noted that the appellant had been able to return to part-time work in August 2018. He stated that the MRI scan of the cervical spine “showed some minor degenerative changes but no spinal cord or nerve root compromise”. He also noted that the appellant had injections in her right shoulder which did not help and nerve conduction studies which did “show some evidence of minor C7 nerve root tension signs.”
Dr Richard Powell, an orthopaedic surgeon, saw the appellant on two occasions at the request of the respondent. By his report dated 13 October 2020, he expressed the opinion that the appellant had suffered a minor soft tissue injury to her neck in the incident of 21 May 2018 and that she had aggravated underlying degenerative changes in the motor vehicle accident on 7 June 2018. He then considered the report of Dr Bodel. He stated:
“I have reviewed the report of Dr Bodel dated 12/06/20. I would agree with his diagnosis of soft tissue musculo ligamentous strain to the neck and minor aggravated disc pathology in the cervical spine though I do not believe she sustained rotator cuff tear as a result of the workplace incident. The mechanism of injury described is not sufficient to have caused intrinsic pathology within the shoulder.”
Dr Powell expressed the opinion that the effects of the two work related incidents on the appellant’s cervical spine and shoulder had ceased and that the appellant’s symptoms “most likely reflect the underlying degenerative disease process”.
While Dr Powell expressed the opinion that the effects of the injuries had ceased, he provided an opinion in respect of permanent impairment. He assessed 5% WPI on a range of motion basis for the appellant’s right shoulder. In respect of the cervical spine, he said this:
“With reference to table 15-5 on page 389 I assigned a DRE cervical category II with a 7% whole person impairment. There are non-verifiable radicular symptoms, a symmetric range of motion and moderate disruption in activities of daily living.”
Neither Dr Bodel nor Dr Powell made a deduction for a pre-existing condition pursuant to s 323 of the 1998 Act. Dr Powell, however, said this:
“For the reasons I have outlined previously I do not believe that impairment of the cervical spine and right shoulder is the result of injury sustained in the course of her employment. On that basis I am not in a position to make deductions for pre-existing pathology. You have request [sic] assessment of whole person impairment irrespective of my opinion on causation.”
The different assessments of WPI made by Dr Bodel and Dr Powell gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. The Registrar referred the dispute to a MA, Dr Ian Meakin. It is from his MAC dated 18 February 2021 that the appellant appeals.
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 panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a re-examination of the worker. The panel also reached the conclusion that a re-examination of the worker would not materially assist its determination of the issues on appeal.
EVIDENCE
The appeal panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical assessment certificate given by the MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the appeal panel.
The appellant’s attack on the MAC is limited to the assessment of the MA in respect of the cervical spine. After reciting the reasons of the MA for assessing DRE Category I, the appellant argues:
“It is apparent from his reasons that whilst the AMS considered and addressed the question of whether there was demonstrable radiculopathy in order to satisfy the criteria for DRE category III, he at no time considered whether there were non-verifiable radicular complaints as defined in the Guides. His failure to consider this criterion was both the application of incorrect criteria and a demonstrable error.”
The appellant submitted that if the MA had properly considered the criteria stated in the Guidelines for DRE Category II, he must have concluded that they were satisfied. The MA had recorded that there was neck pain on examination and complaints of discomfort radiating to the outer right arm and forearm and into the volar aspect of the thumb, ring and little finger, where she experienced paraesthesia. The appellant argued that the MA acknowledged in the MAC that these complaints were consistent with a radiculopathy in the distribution of the C6 and C7 nerves. She also referred to the comment by the MA of radiological evidence of “potential C7 nerve root irritation on the right side on scan evidence”. The findings and conclusions of the MA provided clear evidence of non-verifiable radicular complaints which should have led to an assessment of DRE Category II.
The appellant submitted that her argument was reinforced by the other material before the MA. The reports of Dr Patel, a neurologist dated 23 August 2018 and 19 September 2018, suggested a diagnosis of C6/7 radiculopathy. Dr Powell, the respondent’s qualified orthopaedic surgeon, also specifically referred to non-verifiable radicular symptoms in the appellant’s right arm in expressing the opinion that the appellant fell within DRE Category II. While Dr Meakin referred to this evidence, including Dr Powell’s reference to non-verifiable radicular symptoms, he did not express agreement or disagreement with Dr Powell’s opinion or consider whether or not the complaints he recorded on his examination in the appellants right arm were consistent with this opinion.
The appellant then returned to the definition of radicular complaints in the Guidelines. She argued there is a clear distinction between radiculopathy which requires clear clinical signs, and non-verifiable radicular complaints, which do not. The appellant continues:
“As such, it is not a matter of there being objective evidence in the form of clinical signs but a matter of analysing symptoms. At no time does the AMS embark upon that enquiry.
It is apparent from both his reasoning and the way in which he addressed the other medical evidence that the AMS has failed to consider one of the criteria for DRE category II and/or has misunderstood what those criteria are.
When the material is properly considered, the appellant should be assessed as DRE category II on the basis of non-verifiable radicular complaints.”
The appellant then submitted that she should be allowed 2% for disruption of the activities of daily living in accordance with the opinions of Dr Powell and Dr Bodel. Thus, the appellant should have been awarded 7% WPI in respect of her cervical injury. Combining this amount with the 8% awarded by the MA in respect the right upper extremity, the appellant would be entitled to 14% WPI.
The respondent submitted that the findings of the MA on clinical examination accorded with DRE Category1 in accordance with the indicators in Table 15-5 of AMA 5 and the Guidelines. The submission continued:
“Although the history taken by the AMS has referred to the appellant’s stating that she experienced “some discomfort radiating to the outer right arm and forearm and then on to the volar aspect of the thumb, ring and little finger”, this history is solely based upon the Appellant’s subjective reporting only, which is inconsistent with the examination taken by the AMS on the day of assessment.’”
The respondent further submitted that it was inappropriate to suggest that the MA had not considered non-verifiable radicular complaints. On the contrary the MA had considered these complaints “and disagreed with the presence of same on the basis of his examination of the appellant and her complaints on the day of assessment.”
In respect of the activities of daily living, the respondent submitted that the range of motion found by the MA on examination of the appellant’s spine suggested that her neck symptomatology had little if any impact on her ability to undertake the activities of daily living. The respondent, therefore, submitted that the only conclusion available to be made was a finding of 0% for the impact of daily living.
The respondent submitted that if the appeal in respect of the cervical spine was allowed, the medical appeal panel should “apportion any whole person impairment between the two separate and discrete injuries to the cervical spine on 21 May 2018 and 7 June 2018.” This submission seems to fly in the face of the findings of Arbitrator Wynyard referred to above. Moreover, it appears to be inconsistent with the referral.
Finally, the respondent submitted that if there was an assessment of greater than 0% WPI there must be a deduction for a pre-existing injury or condition to both the appellant’s cervical spine and right shoulder pursuant to s 323 of the 1988 Act. The respondent referred to the treatment received by the appellant in March 2013 for acute right-sided neck pain including an MRI, and to the ultrasound examination of the appellant’s right shoulder because of right shoulder pain on 16 April 2014.
The respondent argued that in respect of s 323 the MA had:
“proceeded on the mistaken assumption that the appellant’s alleged recovery from any pre-existing injuries amounted to a finding that her pre-existing injuries to the cervical spine and right shoulder did not contribute to her assessable impairment.”
Guidelines
Chapter 14.8 of the Guidelines addresses DRE Category 11 and the following terms:
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen.”
FINDINGS AND REASONS
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the appeal panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
At his consultation on 9 February 2021, the MA recorded a history of the appellant injuring her neck and shoulder on 21 May 2018 and on 7 June 2018. He recorded the following further history:
“The neck and right shoulder pain continued with symptoms radiating on to the outer aspect of the right arm and forearm and intermittent paraesthesia involving the thumb, ring and little finger on the volar aspect. These intermittent right arm symptoms occurred intermittently every alternate day, although these were not present today.”
In respect of her present symptoms, the MA once again recorded cervical neck pain. He also stated that:
“The neck pain fluctuates in intensity, is associated with some discomfort radiating to the outer right arm and forearm and then on to the volar aspect of the thumb, ring and little finger, where it is experienced as paraesthesia. These symptoms occurred intermittently every alternate day and were not present today.”
On his examination of the cervical spine, the MA found a full range of movement “with pain experienced on terminal range extension only”. He found no spasm or guarding. He found no neurological signs in the appellant’s upper limbs. In his summary, he dealt with these findings as follows:
“The direct work injury on 21 May 2018 and the subsequent journey injury on 7 June 2018 resulted in a soft tissue injury to the cervical neck with symptoms radiating into the right arm intermittently in a C6 and C8 distribution although not subjectively or objectively present today. There is radiological evidence of a potential C7 nerve root lesion on the right side on scan evidence, however, at the time of today’s examination Ms Khullar is neurologically intact in the outer extremities with a full range of motion and pain on extension.”
In the opinion of the panel the MA was in error in the manner in which he assessed WPI of the appellant’s cervical spine in the context of these findings. During his examination he took a detailed and unambiguous history that the appellant experienced intermittent right arm pain in the dermatomal distribution of the C6 and C7 nerves, which had persisted for more than two and a half years since the employment injuries. It is true that there was no objective clinical sign of this condition on examination. Nonetheless, the MA appears to accept that the appellant experienced “nonverifiable radicular complaints”. These are defined in Table 15.3 of AMA 5 “as complaints of pain without objective findings.”
Table 15.3 is headed “Criteria for Rating Impairment Due to Cervical Spine Injury”. The criteria for DRE Category I are as follows:
“No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.”
The criteria for DRE Category II are as follows:
“Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or non verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity.”
Nonverifiable radicular complaints are complaints arising from a cervical nerve root. It can be seen that these complaints are a relevant criterion for rating cervical impairment as DRE Category 2. By contrast they are not a relevant criterion for DRE Category 1.
In this case, there is no suggestion that the appellant’s complaints of nonverifiable radicular symptoms were unreliable or that they are inconsistent with other findings and conclusions of the MA. It is highly improbable that she would have been aware of the dermatomal distribution of the cervical nerves.
Equally, the MA does not suggest there was other evidence before him which was inconsistent with the appellant experiencing nonverifiable radicular symptoms. On the contrary, there is evidence which supports her complaint. While the respondent’s orthopaedic surgeon, Dr Powell, differed from the MA on the issue of causation, he plainly accepted that the appellant experienced non-verifiable radicular symptoms and assessed DRE Category 11 accordingly.
The MA emphasised that the radicular complaints were not “objectively” present at the time of his examination. But an essential feature of the description of non-verifiable radicular complaints in the Guidelines is that they are “present without objective findings”. The MA also observed that the symptoms were not present on the day of the examination but were only present every second day. It is possible the MA may have assumed that the absence of symptoms at the precise time of his consultation with the appellant precluded an assessment of WPI by reference to non-verifiable radicular complaints. But it would be remarkable if the legislature intended that radiculopathy, which is often intermittent, would only lead to assigning DRE Category11 when it was present at the very time of the examination by a MA. Rather, Chapter 14.8 must refer to symptoms of radiculopathy resulting from injury which the worker continues to complain of at the time of the assessment.
In those circumstances, the MA should have assessed DRE Category11 when assessing the appellant’s cervical spine which would give rise to a baseline finding of 5% WPI.
The appellant submitted that she should have awarded an additional 2% WPI in respect of interference with her ADLs. The respondent, on the other hand, submitted that the evidence did not justify any additional component by reason of the Chapters 4.34 and 4.35 of the Guidelines. The evidence in respect of this issue is meagre. However, the appellant addressed it in a second supplementary statement as follows:
“Due to my restrictions, I am limited to performing light household chores only. When I attempt to do household chores that involve heavy use of my arms such as gardening, mopping the floors, ironing or cooking, I experience an exacerbation of my right shoulder and neck symptoms. Simple tasks such as wiping down tables would cause me pain.
When I try to attend to personal hygiene such as colouring my own hair, washing my hair in the shower or putting on clothes, I become quite wary of my movements so as to avoid any pain or discomfort.
I only drive short distances to local areas because driving for extended periods causes pain in my right shoulder.
Prior to my injury, I would spend time with my children doing outdoor activities and sports such as hockey, badminton, soccer and cricket. Now, I can no longer participate in family day activities with my children because I cannot play with them and this makes me feel really upset and disappointed with myself.”
The panel notes that both Dr Bodel and Dr Powell awarded 2% WPI for ADLs. Neither doctor provided more than cursory reasons for the award or considered that the appellant’s capacity to perform aspects of her household chores may have been reduced by reason of her shoulder condition rather than her neck. After consideration of the entirety of the medical evidence, it seems improbable that the appellant’s neck pathology would interfere with the performance of ordinary household tasks. The panel noted the MRI scan of 6 August 2018 was reported as demonstrating only mild degenerative changes. On assessment by the MA, the appellant was found to have a good range of cervical movements.
The panel concluded that many of the restrictions referred to in the passage from her evidence quoted above probably relate to pain and restriction of movement in the appellant’s right shoulder rather than any intrinsic problem with her cervical spine. It is evident that the appellant has a significant restriction of right shoulder movement which would preclude her from performing domestic work with her right arm that involved arduous or repetitive activities or work above shoulder height.
Considering the modest nature of the pathology in the appellant’s cervical spine, the panel concluded that it may curtail her capacity to perform gardening or yardwork and sporting and recreational activities. Thus, the appropriate loading for the impact of the injury on ADLs in accordance with Chapter 4.33-4.35 of the Guidelines is 1% WPI.
The respondent submitted that there should be a deduction pursuant to s323 (1) of the 1998 Act in respect of the impairment in both the appellants neck and right upper extremity. The right upper extremity impairment is not the subject of an appeal and it is doubtful that the panel has jurisdiction to review the finding of the MA in this regard. However, the panel found no error in his assessment of the right shoulder. While the appellant underwent an ultrasound of her right shoulder in 2014, the evidence does not establish that the condition which gave rise to the need for this investigation played any role in the onset of her symptoms following injury in 2018. Before a deduction can be made it is, of course, necessary for the evidence to establish that the prior injury or condition contributed to the appellant’s right shoulder condition and to the impairment of her right upper extremity: see Ryder vSundance Bakehouse [2015] NSWSC 526 (7 May 2015) and the cases referred to therein.
The situation is different in respect of the appellant’s cervical spine. There is little doubt that the mild degenerative changes proven by the radiology preexisted the appellant’s employment injuries in 2018. The appellant had previously been treated for acute right sided neck pain in 2013. The description of the mechanism of each injury suggests that it is extremely unlikely that the degenerative changes were caused by those relatively innocuous incidents. Conversely, it seems probable that the degenerative changes contribute to the appellant’s symptoms and to her impairment.
On the other hand, it is extremely difficult to establish the extent of the respective contributions of the injury and pre-existing degenerative changes with any degree of certainty. The appellant told the MA that she was symptom-free at the time of the work injuries and there is no basis to reject her evidence. If not for the injuries, she may have remained symptom-free indefinitely. The medical practitioners on the panel formed the view that the best approach in this case is to make a deduction of 10% for the pre-existing condition in accordance with s 323 (2) of the 1998 Act.
It must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principles enunciated a very long time ago in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden 114 CLR 164 have application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Act is also of ancient lineage: see Sadler v Commissioner for Railways (NSW) (1969) 123 CLR 216. It is necessary for a respondent to point to appropriate evidence to support a deduction. While there is a pre-existing condition contributing to the impairment in this case the deduction of a greater percentage than 1/10th would involve the panel in an exercise in speculation.
Finally, the respondent submitted that the panel should assess impairment separately in respect of each of the injuries. That approach, however, is inconsistent both with the referral and the previous course of the litigation in the matter. It is also inconsistent with authority. Recently, in Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (12 April 2021), Macfarlan JA said this at [18]:
“The respondent contended that Ms Ozcan’s argument would, if accepted, result “in the aggregation of impairments that, in truth, are unconnected to one another”. The impairments are however connected because the first incident injuries materially contributed to them. They therefore “arose out of” and “resulted from” that incident. The likelihood of the consequences of multiple accidents needing to be assessed together is considerable in light of the law’s adoption of a “material contribution” rather than a “sole cause” test.”
On the finding of the arbitrator the injuries of 21 May 2018 materially contributed to the injuries sustained by the appellant on 7 June 2018. They therefore “arose out of” and “resulted from” that incident.
For these reasons, the appeal panel has determined that the MAC issued on 18 February 2021 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
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 Dr Ian Meakin 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 | 21 May 2018 | Chapter 4, Pages 26-33 | Table 15.1 AMA 5 | 6 | 1/10 | 5% |
| Right Upper Extremity-Shoulder | 21 May 2018 | Figures 16.40 to 16.46 | Table 16.3 AMA 5 | 8% | N/A | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
Paul Sweeney
Member
Dr Phillips Harvey-Sutton
Medical Assessor
Dr Drew Dixon
Medical Assessor
20 July 2021
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