Labour Logistics Pty Ltd & Ors v Alexander

DETERMINATION OF APPEAL PANEL
CITATION:	Labour Logistics Pty Ltd & Ors v Alexander [2024] NSWPICMP 105
APPELLANT:	Labour Logistics Pty Ltd and RMCLH Pty Ltd (Deregistered) (formerly QLD Transport Services)
RESPONDENT:	James Hanare Alexander
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Brian John Stephenson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	27 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal in respect of section 323 deduction; the Medical Assessor (MA) made a one-tenth deduction and it was submitted on appeal that the deduction was inadequate and inadequately reasoned in circumstances where two prior injuries resulting in surgery; worker conceded that one prior injury prior to employment to be taken into account in the deductible proportion but the second injury was within the period of employment claimed in the Application to Resolve a Dispute; it is not for the MA or Medical Appeal Panel to wade into a dispute about liability; the MA has made an assessment based upon the injury referred to him and the Appeal Panel could discern no error; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 August 2023 the employer Labour Logistics Pty Ltd and RMCLH Pty Ltd (Deregistered) (formerly QLD Transport Services) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr James Bodel, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 July 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).

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.
The appellant did not request that the worker undergo a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel did not find error so there was no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary 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.

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. 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.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·    Date of injury:   8 August 2020 – deemed, disease
·    Body parts/systems referred:        Lumbar spine
Scarring - TEMSKI
·    Method of assessment:                  Whole Person Impairment”
The Medical Assessor issued a MAC as follows:

Body Part or system

Date of Injury

Chapter,

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

% WPI

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

Sub-total/s % WPI (after any deductions in column 6)

1. Lumbar spine

Scarring - TEMSKI

8 Aug 2020 – deemed, disease

Chapter 4

Chapter 15, Table 15-3 on Page 384

DRE Lumbar Category IV

27%

One-tenth

24% (rounding from 24.3%)

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

24% WPI

The employer appealed.
There is no complaint on appeal about the overall level of permanent impairment assessed at 27% WPI.
The appeal concerns only the deductible proportion under s 323 applied by the Medical Assessor of one-tenth. The appellant submits that the deduction should have been 50% or 10% but, in any event, greater than one-tenth in circumstances where it is not in dispute that the worker had two prior injuries to the lumbar spine in 1992 in New Zealand and on
22 March 2007 and that surgery in the form of decompression (laminectomy) was performed as a result of each prior injury.
In summary, the appellant submitted on appeal that the Medical Assessor in limiting the deduction to one-tenth made an assessment on the basis of incorrect criteria and made demonstrable errors for reasons which included the following:
(a)    application of the wrong test under s 323;
(b)    erred by using the one-tenth deduction;
(c)    erred by failing to refer to and explain why the medical evidence in the pleadings could not be utilised to calculate the proportion of contribution of the prior injuries to the level of overall level of permanent impairment assessed, and
(d)    erred by failing to refer to and explain why the complying agreement of 2009 which agreed that he had a 10% WPI as a result of prior injury and relevant Guidelines could not be utilised.
The respondent worker, Mr James Henare Alexander (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make a demonstrable error and the MAC should be confirmed.
In summary, the respondent made submissions which included that the respondent worker agrees that he sustained a lower back injury in 1992 which resulted in surgery and in 2007 which resulted in surgery but does not concede that the 2007 injury represents a pre-existing injury for the purposes of making a s 323 deduction submitting as follows that the respondent worker:
“…agrees that he sustained the 2007 lower back injury too but disputes the suggestion, if it is being made, that the 2007 injury is a previous injury or that the subsequent laminectomy is a pre-existing condition or that there is or was agreement about that. The ARD refers to a claim for a ‘disease’ injury aggravated by the nature of work with the 2 respondents from 2003 to August 2020.The Certificate of Determination dated 10 March 2023…,the amended referral dated 14 April 2023…,and the MAC…are similarly worded. The 2007 injury occurred during the respondent worker’s employment with the first respondent and therefore was not a ‘previous’ injury.”
The Medical Assessor noted that he was referred a deemed date of injury and noted the employment history as follows:
“Mr Alexander has been employed as a truck driver. He commenced work with his employer (Road Master) on a casual basis in 2003. I note that various corporate entities are known as the employer at the time of his employment, and they are listed as follows:
-     Labour Logistics Pty Limited
-     QLD Transport Services Pty Ltd t/as Road Master
-     RMCLH Pty Ltd (de-registered) formerly QLD Transport Services Pty Limited
He worked out of a depot in Sydney and mainly did weekend work on a Friday, Saturday and Sunday. He did regional runs from Sydney to ‘Wagga Wagga, Raleigh, Dubbo and Orange.’
He drove refrigerated semi-trailers and he held an HC (heavy combination) licence.
I am aware that he has had previous injury and surgery on his back in 1992 when working in New Zealand, working as a train driver.
He indicates to me today that he managed to get the work at Road Master after passing a pre-employment medical.”
The Medical Assessor recorded the history relating to injury as follows:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
The claimant initially worked casually, doing weekend trips. He later became a permanent employee and did regular regional runs.
He began to develop a gradual onset of back pain which came on without specific accident or injury. In his Statement he states that, ‘There wasn’t one main injury, but rather it was a build up over time.’
He sought treatment from his GP and was referred to Professor Brian Owler, a neurosurgeon at Westmead Private Hospital. He required a ‘re-do lumbar laminectomy for the recurrent left-sided sciatica’ that he had developed at that time at work.
He was off work for six months and recovered well. He remained under the care of his GP, Dr Antoun at Chullora, and was cleared to return to work in early 2008.
Coincidentally, he developed prostate cancer at that time, which required treatment.
Mr Alexander clinically indicates today that he perceived that he had a ‘good result’ from that surgical undertaking and he was able to eventually return to his pre-injury work. There was a legal settlement of this claim, managed by ‘Slater & Gordon in Parramatta’.
He continued to do the driving.
He states that in about 2011, again without accident or injury, he began to develop increasing back pain and left-sided sciatic pain. An MRI scan was done showing definite disc pathology. He had spinal injections, physiotherapy, intermittent time away from work, and further treatment from Dr Antoun.
On that occasion he was seen by Dr Randolph Gray in about November 2011, and he was managed with physiotherapy and block injections. His symptoms settled and he recovered reasonably well, although resolution of symptoms was incomplete. He was able to continue with his work for about ‘four years.’
In his signed Statement of 8 July 2021, he states that in 2015 he had some return of occasional backache and intermittent left buttock and thigh pain. It was tolerable and manageable with over-the-counter medication.
He then developed some upper limb symptoms with numbness and tingling in the hands. He had MRI scans of the cervical spine and nerve conduction studies confirming the presence of carpal tunnel syndrome. He had carpal tunnel releases with a good outcome in February 2017 and he went back to driving work in May 2017. Resolution of symptoms in the neck and the hands was incomplete. This matter is not related to the current assessment.
In late 2019, the leg pain returned although it was manageable at that time with some medication and occasional physiotherapy.
Early in the New Year and soon after the onset of the COVID-19 pandemic, it became more troublesome and medical management became more difficult because of the lockdown.
By mid 2020, he had formally lodged a recurrence form and he was having increasing difficulty managing the pain and great difficulty getting to the doctor or to any formal physiotherapy. He was taking strong analgesic medication and hot packs, hot showers and bed rest.
Eventually, the pain became unbearable. He had done a run from Sydney to Melbourne and on ‘Saturday 8 August 2020’, he could hardly walk and his pain was excruciating.
On this occasion, he sought advice from Dr Eric Lim at Workers Doctors in Parramatta. He saw Dr Lim on 10 August 2020 and he was immediately put off work. A formal workers compensation claim was lodged and investigations undertaken with a further MRI scan.
He had strong narcotic analgesic medication, physiotherapy twice a week, and was referred to Dr Peter Khong, a spinal surgeon, for further advice.
He had further investigations, including a bone scan, and was advised that he would need to consider further surgery in the form of a spinal fusion.
He was reluctant to consider that at that time and he therefore sought a second opinion and was seen by Dr Bhisham Singh. On 15 December 2020, Dr Singh recommended that he should have a block injection on the right hand side at L3/4 which was done on 6 January 2021. It was really of only temporary benefit and gave no lasting relief.
On 16 February 2021, Dr Singh advised a staged fusion at L3-L5 and he then went back to Dr Khong in July 2021 for further advice, and he also advised a fusion.
He remained off work after August 2021 and eventually he did undergo the fusion on 6 November 2021, this was done by Dr Khong in the form of an anterior lumbar interbody fusion at L3/4 and L4/5.
Today, he indicates that pre-operatively it is his recollection that the level of pain was 6-8/10 and he was taking Tramadol and Gabapentin to manage the pain.
Post-operatively, on his very best day, he is now 2-3/10 and on his worst day, 5-6/10, particularly in the afternoon towards the end of the day. This seems to represent a reasonable response to treatment and he has been cleared to return to work three hours a day, two days a week, doing rehabilitation work. I understand that he has found some community bus driving work in a Toyota Coaster, and he is finding that tolerable.
The scar for the surgery from 6 November 2021 is a somewhat unsightly scar anteriorly and he is ‘very conscious of the surgical scars on my body, moreso on my stomach.’ At the time of examination, the anterior scar is broadened and there is a loss of subcutaneous tissue. I would rate this as a moderately complex surgical scar, although the multiply re-opened posterior scar is a finer, better healed scar. Collectively, I rate the scars as moderately complex surgical scars under the TEMSKI scale (2% Whole Person Impairment).
It appears that his clinical condition is now stable and static.
·    Present treatment:
Mr Alexander is able to manage his level of pain with Panadol Osteo and Gabapentin.
·    Present symptoms:
o   He has a dull aching pain across the lower part of the back, spreading into the buttock on both sides.
o   The left-sided sciatic pain has largely resolved with occasional pain radiating into the buttock and thigh, but only if he ‘does something stupid’.”
The Medical Assessor took a history of the prior injuries as follows:
“● Details of any previous or subsequent accidents, injuries or condition:
The previous history has been outlined. He first had decompressive surgery in New Zealand in 1992. There was a good response and passed a pre-employment medical before beginning work at ‘Road Master.’
He had further recurrence in 2007, four years after beginning work at Road Master, and had successful decompressive surgery done by Professor Owler with a good outcome and returned to his normal work.
He had flare-ups of pain after that and was treated by Dr Randolph Gray conservatively with injections and physiotherapy, and he settled without surgery. He had the further flare-up which led to the spinal fusion on 6 November 2021.”
The Medical Assessor completed the history including impact on activities of daily leaving (ADL) as follows:
“General Health
His general health indicates that he has had prostate cancer (2008) and he also had bilateral carpal tunnel release (2007).
I understand that his general health otherwise is reasonable, and he has always considered himself very fit and healthy.
· Work history including previous work history if relevant:
The claimant worked as a train driver in New Zealand and came to Australia and worked as a truck driver. He is currently doing very light duty work driving a community bus.
· Social activities/ADL:
He is not engaged in particular sports or hobby activities. He can drive an automatic motor vehicle. His driving tolerance is also now restricted. He could not contemplate the interstate and intrastate truck driving that he used to do.
He struggles with household maintenance and cleaning activities, but his tolerances in activities around the house have been reduced because of the back pain.”
The Medical Assessor recorded the findings on physical examination as follows:
“Mr Alexander is a very pleasant man who is now 62 years of age. He has three adult sons and lives in Greystanes in western Sydney. He rises from the chair slowly. He walks without a limp.
He has healed mid-line scarring posteriorly and also scarring anteriorly. The anterior scar is quite broadened and there is some loss of subcutaneous tissue. There is no tethering to underlying deep structure but there is tenderness and pigmentation in the anterior scar. As I indicated earlier, I would rate these scars collectively as a 2% Whole Person Impairment on the TEMSKI scale because of the nature of the scar, particularly the anterior scar.
He has tenderness posteriorly and he reaches forward in flexion with his hands to the knees. There is some back and buttock pain at this point and upper hamstring pain, but no pain radiating down into the legs, below the upper part of the thighs. There is also pain on extension and some pain on lateral bending.
Today he is able to walk on his heels and toes without difficulty. There is no measurable wasting in either thigh or calf. There is no restriction of hip, knee, ankle or subtalar movement. The reflexes are present and equal, and there are no clinical signs of residual radiculopathy in either lower limb.
He indicates that the last surgical procedure has been very helpful in relieving the predominant left-sided sciatica which he had prior to the surgery on 6 November 2021.”
The Medical Assessor noted in regard to special investigations as follows:
“Unfortunately, the claimant has not brought any x-rays with him. There are extensive reports of the various investigations in the documentation that will be reviewed in a moment.”
The Medical Assessor summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
The claimant has had recurring episodes of disc injury in the lumbar spine, as detailed in the history section above. He has had multiple surgical procedures over many decades, as outlined in the history section above.
· consistency of presentation
He is clear and concise and there is no indication of embellishment.”
The Medical Assessor explained his assessment of permanent impairment as follows: (emphasis in original)
“My opinion and assessment of whole person impairment
I again would indicate that the history taking, the signed Statements which form part of the evidence provided, clinical findings, reports of x-rays, and the detailed medical documentation of the long history of spinal pathology are the method by which the assessment is undertaken.
The final level of Whole Person Impairment is 24% Whole Person Impairment.
An explanation of my calculations (if applicable)
Mr Alexander has a DRE Lumbar Category IV level of assessable impairment in accordance with the description in Table 15-3 on page 384 of AMA5. He has had a ‘successful or unsuccessful attempt at surgical arthrodesis.’ The base rating for this category is a 20% Whole Person Impairment in this case.
His Activities of Daily Living have been moderately compromised in accordance with Item 4.34 and Item 4.35 on page 28 of the 4^th Edition of the WorkCover Guidelines, giving a 2% loading and a 22% Whole Person Impairment overall.
He is still able to manage personal care items but has difficulty with household maintenance and cleaning activities, and, sport and leisure activities.
Table 4.2 on page 29 of the Guidelines applies in this circumstance. On clinical testing today, there are no signs of persisting radiculopathy. He has no symptoms of referred pain into the legs past the buttocks and the upper part of the thighs. There are no signs of nerve root tension, wasting or weakness, or reflex abnormality in either lower limb to constitute persisting signs of radiculopathy, and he therefore has a 0% contribution in Table 4.2 to the place of radiculopathy in this circumstance.
He does, however, have a 2% Whole Person Impairment loading for the second surgical procedure in this circumstance, a 1% Whole Person Impairment for the third surgical procedure that occurred during the period of his employment that is under review from 2003 until the deemed date of injury, being 8 August 2020. There is also a further 1% Whole Person Impairment for the second level that has been operated on in the anterior lumbar interbody fusion in the last surgical procedure.
The additional loading is therefore a 4% Whole Person Impairment for the modifiers following surgery and that is then combined with the overall 22% Whole Person Impairment to give a 25% Whole Person Impairment using the Combined Value Charts on page 604 of AMA5.
I have also been asked to assess the scarring and I rate the scarring as a 2% Whole Person Impairment for the reasons outlined above under the TEMSKI scale.
There is a total of a 27% Whole Person Impairment when that is also combined with the 25% Whole Person Impairment in this case.
It is my view in this circumstance, for the following reasons, that a one-tenth deduction for pre-existing impairment in accordance with Section 323 should be applied.
The claimant has had previous surgery in 1992 in the same region of the lower part of the back following an injury that occurred while working as a train driver in New Zealand in 1992. He had a good response to that. He came to Australia and began this work as a truck driver, and he indicates that he did pass a pre-employment medical and there is no indication that he had any ongoing impairment at the time he commenced that work.
I am satisfied that the long history of disc pathology for which he had had a previous surgical procedure and the degenerative change that had arisen in that disc procedure before commencing work at Road Master is contributing to the overall level of Whole Person Impairment in the circumstance.
It is far too difficult to consider the exact level of that contribution and it is therefore too difficult to determine the contribution in accordance with Section 323 and a one-tenth deduction is appropriate.
That pre-existing impairment is contributing to the overall level of impairment and a one-tenth deduction leaves a 24.3% Whole Person Impairment and after rounding, a 24% Whole Person Impairment for this injury.”

The Medical Assessor made brief comment on the other medical evidence and other evidence before him as follows: (emphasis in original)
“I have carefully perused all of the documentation provided with the Application and Reply documents.
I have also taken into consideration the most recent referral for the assessment of impairment, which is an amended referral dated 14 April 2023. That confirms that the method of assessment is Whole Person Impairment assessment of the lumbar spine, with scarring under the TEMSKI scale, for date of injury which is ‘8 August 2020 – deemed, disease.’
The Application to Resolve a Dispute places the level of Whole Person Impairment at 29% Whole Person Impairment. My detailed answers to question 10b. above indicate that today the correct level of Whole Person Impairment is a 24% Whole Person Impairment for the reasons outlined.
I have referred to the three separate signed and dated Statements that Mr Alexander has made, the first on 8 July 2021, the second on 19 August 2022, and the third on 18 November 2022, and they are very helpful in determining the level of impairment that is appropriate in this circumstance.
A previous Complying Agreement with QBE for a 10% Whole Person Impairment rating is noted, this is dated 11 June 2009.
There is a letter from Walker Law Group with a claim for the level of Whole Person Impairment of 15% Whole Person Impairment dated 20 May 2021, and that is prior to the most recent surgical procedure, which is spinal fusion, and therefore that claim is no longer relevant because of the fusion.
The revised claim on 11 April 2022 is now at 29% and for the reasons I have mentioned previously, I have determined a 24% Whole Person Impairment today.
The response from Lee Legal Group dated 17 August 2022 is a counteroffer of a 13% Whole Person Impairment on the basis of an assessment from Dr John Bosanquet dated 6 July 2022.
There are the two assessments from Dr Endrey-Walder, the first in May 2021, prior to the spinal fusion, and the second on 29 March 2022, nearly five months after the spinal fusion. The second report is more relevant because of the spinal fusion and in his supplementary report from that same date, he confirms a DRE Lumbar Category IV rating with 22% Whole Person Impairment and I agree with that.
He does find clinical evidence of persisting signs of radiculopathy but here today, more than a year later, there are no objective signs of radiculopathy and therefore that 3% loading that he has added is not relevant.
He does quite correctly identify 4% loading (2% for the second operation, 1% for the third operation, and 1% for the second level of operation) and that is appropriate from Table 4.2.
He rates the scars as a 2% Whole Person Impairment and I agree with that, and his overall rating is a 29% Whole Person Impairment.
The only substantive difference between his assessment and mine is that there are no clinical signs of radiculopathy here today and that I have made a one-tenth deduction for the reasons outlined above.
There is a report from Dr Brian Owler, who first operated on him in 2007. He stated he had a good clinical result from that surgical procedure done on 2 October 2007. The surgery was at the L4/5 level.
The local doctor who has attended to him is Dr Antoun and also Dr Doumit Saad at Galen & Gray in Chullora.
Dr Randolph Gray, an Orthopaedic Spinal Surgeon, was involved in his management with the flare-up of pain that occurred in November 2011 and he managed the pain at that time conservatively with rest, analgesic medication and injections, with a good outcome for another four years before further deterioration led to his further surgery.
Treatment letters from Dr Eric Lim at Workers Doctors are noted and there are the various assessments by Dr Peter Khong and also Dr Bhisham Singh, which are consistent with the history that I have recorded in regard to this matter.
The operative report for the anterior lumbar interbody fusion at L3/4 and L4/5 dated 6 November 2021 confirms the surgical procedure for the two level fusion.
I also note that Dr Lemach has written on 18 August 2021. Dr Lemach is a Vascular Surgeon who provided abdominal access for the anterior lumbar interbody fusion. At the time of that surgery, it was also noted that he had undergone a ‘prostatectomy for prostate cancer.’
The report of the CT scan of the lumbar spine on 7 March 2007 confirms degenerate disc disease at the L4/5 level. This is at the time of the first recurrence of his back pain and left-sided sciatic pain treated by Professor Owler. The report confirms, ‘Degenerate L4/5 broad-based central and left paracentral protrusion abutting and effacing the left L5 nerve root origin in a subarticular lateral recess.’
That report, assuming that it accurately reflects the films which I have not had the opportunity to see, does indicate the reason why a one-tenth deduction in my view is appropriate. This mentioned degenerative change at the L4/5 level, which arises as a consequence of the previous spinal surgery back in the early 90s in New Zealand. That degenerative change is contributing to the overall level of Whole Person Impairment, but it is far too difficult to determine the exact level of that contribution and the one-tenth deduction, as I have done in this circumstance, is appropriate.
The MRI scan on 29 August 2007 shows similar findings.
Another MRI scan on 6 November 2008 confirms that there has been a good clearance with the surgery done by Professor Owler.
CT-guided block injections are noted.
X-rays of the lumbar spine are noted and there is increasing narrowing at L4/5 over the years.
Work Capacity Certificates confirm that the claimant was unfit for all work after the sudden and rapid deterioration of his clinical function at work on 8 August 2020 and remained unfit for a lengthy period of time until his surgical procedures were completed. He has now been cleared for suitable duties, as I indicated above.
I also note the historical local doctor’s notes from Dr Tony Antoun which do not add to my understanding of his clinical circumstance.
I note the material from Workers Doctors to which I have already referred.
Psychological treatment reports are also noted. These are outside my area of expertise and do not add to my understanding of the clinical level of impairment in the lower part of the back assessed above.
I note Australian Taxation Office documents which do not add to my understanding of the level of Whole Person Impairment.
I note photographs of the surgical scars, particularly the anterior scar which is pigmented, and I refer to those in the report above.
I also note that Dr Endrey-Walder and I have found a similar rating of 2% Whole Person Impairment for the scars collectively and that is appropriate. The posterior scar is a pale linear scar of better quality than the anterior abdominal scar, but overall the scars are rated collectively under the TEMSKI scale as a 2% rating as I have given.
The reply document prepared by Lee Legal Group have provided the treatment letters from Dr Owler, which I have already referred to. Treatment letters from Dr Doumit Saad in November 2011, treatment report from Dr Gray which I have referred to, and treatment reports also from Dr Bhisham Singh.
They have provided a copy of the earlier report from Dr Endrey-Walder from May 2021, which was prepared prior to the spinal fusion. As I indicated above, that is largely irrelevant from the point of view of the assessment of impairment because the spinal fusion procedure has not been taken into consideration.
The only new material here is the assessment report from Dr John Bosanquet on which the Reply Application to Resolve a Dispute is relying on and also a letter from
Dr Rosenberg. A copy of the Complying Agreement from 2009 has also been noted, but I have seen and commented on that previously.
Dr Rosenberg has written on 6 July 2022. He has chronicled the history of the mechanism of injury and the recurring surgical procedures. On page 5 of his report, there is question part (e) and he confirms that he believes the claimant has reached the level of maximum medical improvement at that time, about eight months after his last surgery, and I would agree with that.
He concludes that overall he has a DRE Lumbar Category IV rating and that is appropriate. He gives a 20% base rating and a 1% loading for interference in activities of daily living. Both Dr Endrey-Walder and I have given a 2% loading and I believe that is appropriate.
He quite correctly identifies, ‘No addition for radiculopathy, as this was not evident on physical examination’ and I agree with that on today’s assessment. He then records an additional loading of 1% Whole Person Impairment for the second level, 2% for the second operation, and another 1% for the third level, giving again that total of a 4% additional loading for Table 4.2 on page 29 of the Guidelines. He combines that with 21% to give a 24% Whole Person Impairment overall. He does also agree with a 2% loading for the scarring, giving a total of a 26% Whole Person Impairment.
He then, erroneously in my view, makes a ‘50% deduction’ because of the ‘injury to his back prior to 2003’ leaving a 13% Whole Person Impairment overall for the injury for the period of employment from 2003 until August 2020.
Dr Rosenberg has also given an assessment in a report dated 23 January 2023, writing to the GIO. He calculates a 26% Whole Person Impairment and then apportions a ‘50/50 split to WPI pre and post 2011.’ He makes his assessment on a time basis, pre-2011 and post-2011, with the work that he has undertaken. I don’t see the relevance of that in this circumstance.
There is an email from GIO, Mr Neil Bennett, making a counteroffer. They have engaged Lee Legal, offering a 13% Whole Person Impairment as indicated earlier.”
The Medical Assessor reasoned further in relation to the deductible proportion as follows: (emphasis in original)
“a) In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)The claimant has had a previous injury to the L4/5 disc in the lumbosacral region prior to commencement at work with Labour Logistics Pty Ltd etc. He came to that workplace and was asymptomatic and past pre-employment medical, but the underlying pathology associated with that previous pathology contributing to the overall level of Whole Person Impairment.
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:
The signs of previous injury are the early reported abnormalities on the MRI scan and CT scan done soon after the injury in 2007, showing ‘degenerative disc disease at the L4/5 level.’ That degenerative disc disease is contributing to the overall level of impairment that is currently evident, for the reasons outlined earlier.”
The appellant complains that the one-tenth deduction is inadequate and inadequately reasoned.
The Appeal Panel notes that the Medical Assessor has in fact reasoned that the injury occurring in the employment from 2003 has been taken into account in the overall assessment of impairment and that no deduction is applicable for the 2007 injury (within the time of employment to which this claim for compensation relates) but a deduction for the injury in New Zealand is warranted but is too difficult or costly to determine and a deduction of one-tenth is not at odds with the available evidence.
A s 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed. The Medical Assessor deducted one-tenth for the reasons he gave above. The appellant complains that the deduction is inadequate and inadequately reasoned and inconsistent with the available evidence, noting that the worker came to spinal surgery as a result of injuries in 1992 and 2007. The appellant complains on appeal that he has not deducted the proportion related to a previous injury in 2007 and instead has improperly taken this injury into account with the overall assessment of impairment as a result of the injury referred to him being 8 August 2020. In addition, the appellant complains on appeal that the Medical Assessor has failed to take proper account of the pre-existing condition or abnormality of the lumbar spine by finding that a deduction of one-tenth because it would be too difficult or costly to determine otherwise.
The Appeal Panel after a careful review of the evidence considers that the Medical Assessor has not erred and that a finding of a one-tenth deduction was open to him.
The Medical Assessor makes it clear that he was referred a deemed date of injury of
8 August 2020 based on a pleaded Application to Resolve a Dispute that claimed disease or aggravation of a disease as a result of nature and conditions of employment from 2003. This period of employment incorporates the injury in 2007 and there is no determination to the contrary on the question of liability by a Member. Indeed, as set out below the matter came before Member Glenn Capel (Division Head) who simply remitted for referral the question of permanent impairment based on a deemed date of injury of 10 August 2020. There were no further findings made by the Member by consent or otherwise.
The Medical Assessor explains that the radiological findings in 2007 support that there were degenerative changes that have contributed to the need for surgery and so have contributed to the overall level of permanent impairment assessed (which is based on the fusion surgery undertaken in November 2021). The Medical Assessor explained:
“The claimant has had a previous injury to the L4/5 disc in the lumbosacral region prior to commencement at work with Labour Logistics Pty Ltd etc. He came to that workplace and was asymptomatic and past pre-employment medical, but the underlying pathology associated with that previous pathology contributing to the overall level of Whole Person Impairment.”
The worker relies on his pleadings in the Application to Resolve a Dispute which provides a description of injury:
“As a result of the nature and condition of employment as a truck driver from 2003 to August 2020, the applicant sustained physical injuries to his lumbar spine, In the alternative, aggravation, acceleration or exacerbation pf disease is alleged. He has also sustained scarring/TEMSKI. 8 August 2020 is the deemed date of injury.”
The matter was listed before Member Glen Capel (Division Head) who made consent orders remitting the matter for referral to a Medical Assessor for assessment of permanent impairment with a deemed date of injury of 8 August 2000.
The Member did not make any determination that limited the period of employment which had been claimed from 2003 onwards that was to be taken into account by the Medical Assessor or make any other determination other than the deemed date of injury was
8 August 2020. The Medical Assessor is entitled to make an assessment of impairment based on the matter referred to him which was in this case a deemed date of injury of
8 August 2020, based on an Application to Resolve a Dispute that pleaded disease injury caused or aggravated by the nature and conditions of employment as a truck driver from 2023 to 2020.
The Medical Assessor explained: (emphasis in original)
“The signs of previous injury are the early reported abnormalities on the MRI scan and CT scan done soon after the injury in 2007, showing ‘degenerative disc disease at the L4/5 level.’ That degenerative disc disease is contributing to the overall level of impairment that is currently evident, for the reasons outlined earlier.”
The respondent worker submitted that there was no agreement otherwise or no agreement to exclude the 2007 injury from the referral (such that it would constitute a pre-existing injury of the lumbar spine).
It is not the Medical Assessor’s role to wade into a dispute between the parties about liability for injury. It is not the Appeal Panel’s role to do so either.
Based on what was referred to him, the Medical Assessor has made a one-tenth deduction for the 1992 injury and its effects and the contribution to the overall level of permanent impairment assessed for a deemed date of injury of 8 August 2020. The Appeal Panel can discern no error in this approach noting there is no evidence other than that the worker had a good recovery from the first surgery as a result of the 1992 injury and had a pre-employment medical prior to commencing work in 2003 and that he was able to work as a truck driver from 2003. The changes shown on the 2007 radiology have been taken into account when assessing the one-tenth deduction that the Medical Assessor has appropriately made.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 July 2023 should be confirmed.

[2024] NSWPICMP 105

27 February 2024