Lovelee v Sydney International Container Terminals Pty Ltd
[2021] NSWPICMP 179
•24 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lovelee v Sydney International Container Terminals Pty Ltd [2021] NSWPICMP 179 |
| APPELLANT: | Christopher Lovelee |
| RESPONDENT: | Sydney International Container Terminals Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr Drew Dixon Dr Phillipa Harvey-Sutton |
| DATE OF DECISION: | 24 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of demonstrable error in respect of a deduction of one half pursuant to section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) from an assessment of impairment in respect of injury to the lumbar spine and left lower extremity; the appellant worker submitted that the Medical Assessor (MA) had failed to provide reasons for deducting one half of the total assessed impairment for both the lumbar spine and the left lower extremity; the appellant further submitted that a deduction should not have included the additional 2% added to the left lower extremity impairment in respect of nerve damage nor to the additional 2% added to the assessment of the lumbar spine in respect of interference with activities of daily living; Held - the Medical Assessment Certificate (MAC), when read as a whole explained the basis upon which the MA had applied a deduction of ½ to the level of impairment assessed upon examination; the MA had considered the history, imaging and medical records and reports and applied his clinical judgement; the evidence was capable of supporting that assessment in respect of both the lumbar spine and the left lower extremity; the Panel considered that section 323 of the 1998 Act was intended to address the whole of the assessment of impairment for a particular body part/system and it was appropriate for the MA to include the additional 2% in the total level of impairment from which the deduction was to be made; no error or application of incorrect criteria was established in the MAC; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 July 2021 Christopher Lovelee, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Damodoran Kumar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 July 2021.
The appellant relies on the following grounds of appeal under section 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 grounds 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 section328 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
Mr Lovelee suffered an injury to his lumbar spine and left upper extremity on 1 October 2018 in the course of his employment with the respondent, Sydney International Container Terminals Pty Ltd. At the time of the injury Mr Lovelee was driving a small forklift over an uneven surface which caused jarring. He noticed immediate onset of pain. He attempted to continue working over the next two days but found that his symptoms increased.
Mr Lovelee consulted a general practitioner who prescribed pain medication and referred Mr Lovelee for physiotherapy. Mr Lovelee continued to suffer symptoms and was referred to a orthopaedic surgeon, Associate Professor Peter Papantoniou, for treatment. Mr Lovelee had previously consulted Associate Professor Papantoniou in respect of an injury to his right ankle and left hip. Associate Professor Papantoniou noted significant changes in the lumbar spine and groin pain arising from previously diagnosed degenerative changes in the left hip. Investigation of the left hip showed osteoarthritis aggravated by the subject injury. He recommended left total hip replacement. Associate Professor Papantoniou performed that surgery on 3 June 2019.
During the course of his rehabilitation, following the left hip replacement, Mr Lovelee reported increasing pain in the lumbar spine which led to him undergoing bilateral L5/S1 facet joint steroid injections which provided short-term relief.
On 3 August 2020 Mr Lovelee was examined by Dr James Bodel the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987. Dr Bodel noted the prior injury in August 2016. Dr Bodel diagnosed aggravation of degenerative change in the lumbar spine and the left hip. Dr Bodel assessed 19% whole person impairment (WPI
)in respect of the left lower extremity (including 1% WPI in respect of the peripheral nervous system), 7% WPI for the lumbar spine, and 3% WPI for scarring to give a total assessment of 27% WPI.Mr Lovelee was also examined by a gastrointestinal surgeon, Dr Anthony Greenberg who assessed Mr Lovelee as having 6% WPI in respect of the digestive system as a result of the subject injury.
On the basis of the reports of Dr Bodel and Dr Greenberg Mr Lovelee’s solicitors made a claim for lump-sum compensation in respect of a total of 31% WPI.
Mr Lovelee was examined by a surgeon, Associate Professor Phil Truskett, on 22 February 2021 at the request of the insurer. Associate Professor Truskett assessed Mr Lovelee as having 15% WPI in respect of the left lower extremity (inclusive of the lateral cutaneous nerve impairment). Associate Professor Truskett assessed one half of that impairment as due to a pre-existing condition so as to give a figure of 8% WPI after rounding. He assigned a 0% WPI in respect of each of the three aspects of the digestive tract. He also assessed 0% WPI in respect of the lumbar spine and 1% WPI as result of scarring. The combined assessment was 9%.
The medical dispute as to the extent of impairment in the left lower extremity, lumbar spine, digestive system and scarring was referred to the Medical Assessor who examined Mr Lovelee on 11 June 2021. The Medical Assessor noted previous injuries in 2007, August 2016 and January 2017 as well as the subject injury on 1 October 2018[1].
[1] the Medical Assessor refers to that accident as having occurred on "one tenth/10" at the top of page 2 of the MAC. The subsequent comments clearly demonstrate that this was a typographical error of no significance.
The Medical Assessor assessed Mr Lovelee as suffering 15% WPI in respect of the left lower extremity inclusive of the nerve impairment. He considered one half of that assessment to be due to pre-existing condition, thereby reducing the assessment to 8% WPI as result of the subject injury. The Medical Assessor assessed 7% WPI in respect of the lumbar spine inclusive of 2% in respect of limitation of activities of daily living. He also reduced this by one half for “pre-existing causes” to give a further 4% WPI after rounding. The digestive system was assessed at 0% WPI and scarring at 2% WPI to give a 14% WPI final assessment as a result of the subject injury.
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 worker to undergo a further medical examination because sufficient information was available to the Panel to enable it to determine the appeal.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, 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.
In summary, the appellant submits that the Medical Assessor fell into error in assessing 50% deduction pursuant to section 323 (2) of the 1998 Act. The error asserted was that the Medical Assessor failed to address the actual contribution of the pre-existing condition to the assessed level of permanent impairment of each of the lower extremity and the lumbar spine.
In the alternative the appellant submitted that the extent of the deduction was excessive which the panel accepts as meaning that the Medical Assessor had applied a deduction which was not open on the evidence. The appellant further submitted that the Medical Assessor should not have applied a deduction to the impairment allowed in respect of interference with the activities of daily living and the peripheral nerve damage.
In reply, the respondent submits that the deduction of one half applied by the Medical Assessor was available on the evidence which included evidence of previous injuries and a pre-existing degenerative condition in both the left hip and lumbar spine.
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[2] 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.
[2] [2006] NSWCA 284.
The assessment of the body parts/systems contained in the MAC are set out above. No submissions have been made in respect of any of these assessments and the appeal is limited to the issue of whether the Medical Assessor fell into error in assessing a deduction of one half pursuant to section 323 of the 1998 Act.
The Medical Assessor noted prior injuries:
· injury to the left hip in 2007 which the Medical Assessor noted led to Mr Lovelee being off work for a period followed by a return to work on light duties for approximately four months.
· Injury to the left hip and right ankle on 17 August 2016. The Medical Assessor noted that Mr Lovelee had been referred to Associate Professor Papantoniou for both his back and left hip. The Medical Assessor noted a good recovery from the right ankle fracture.
· Injury to the lower back which occurred on 24 January 2017. The Medical Assessor noted that Mr Lovelee had been off work for two months before returning to work on light duties and eventually resuming full duties.
The Medical Assessor considered investigations including:
(a) x-ray of the pelvis and left hip dated 26 October 2020 noting “a left hemi arthroplasty is present in good position. There is moderate degenerative disease of the right [sic] hip”.
(b) MRI lumbar spine dated 26 October 2020 noting:
“multilevel spine degenerative changes noted with mild to moderate degeneration involving multiple facet joints as well as intervertebral degeneration. There are mild disc bulges and protrusions noted throughout the lumbar spine. No significant canal stenosis. There is multilevel mild to moderate neural exit foraminae, however no associated nerve root impingement is identified.”
(c) bone scan dated 6 October 2020 which the Medical Assessor noted as showing:
“The pedicles are congenitally shortened at all levels throughout the vertebral column reducing the AP diameter of the canal. Coupled with disc bulges, these produce canal stenosis at the L/5 level of a mild degree. There is some effacement of the perineural that surrounding the lower right nerve roots, although the nerve roots appear to exit normally with the patient in the supine position.”
(d) x-ray and MRI left hip dated 12 December 2018 which the Medical Assessor noted as showing “severe degenerative changes that the left hip with full thickness chondral loss at the anterior superior aspect of the joint associated with sub chondral oedema” which the Medical Assessor felt “may be secondary to femoral row acetabular impingement”.
(e) MRI lumbar spine dated 17 October 2018 which the Medical Assessor noted as showing multilevel degenerative changes with degenerative disc bulging prominent at L2/3 and L3/4.
As well as the reports of Dr Bodel and Dr Greenberg, the Medical Assessor considered the report of Associate Professor Truskett dated 30 March 2021. In that report Associate Professor Truskett considered the investigations noted above and also noted an earlier MRI scan of the lumbar spine dated 7 February 2017 reported by Dr Praneal Sharma as showing “multilevel thoracic and lumbar degenerative disc disease. Minor contact with exiting nerve roots secondary to disc bulges seen, but no significant foraminal or canal stenosis”.
The Medical Assessor noted that Dr Bodel, in his report dated 3 August 2020, had deducted one tenth of the assessed level of impairment in respect of the left lower extremity. The Medical Assessor reported that he agreed with Dr Bodel’s methodology but said:
“I feel in the presence of well-documented medical evidence and imaging studies, as well as lawyer’s reports of previous injuries, I consider there to be enough evidence to consider a deduction of 50% to be more appropriate than giving a deduction of 10% for pre-existing causes.”.
The Medical Assessor reported:
“10 DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a) In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities;
i)The lumbar spine and left hip have pre-existing disease which is well documented in various medical records. The deduction made in the presence of this is 50%.
In my opinion the deductible proportion is 50% for the following reasons:
i)He has a well documented history of previous injuries to the lumbar spine and left hip. See above report.”.
Dr Bodel’s report, noted by the Medical Assessor, included consideration of the MRI scan of the lumbosacral spine dated 17 October 2018 which Dr Bodel noted showed “there is multilevel degenerative disc disease but no nerve root compromise” and the x-ray of 12 December 2018 which Dr Bodel noted showed “severe osteoarthritic change in the region of the left hip.” Dr Bodel commented with respect to assessment of the left lower extremity:
“There is indication that he had been intermittently symptomatic prior to the event that occurred at work in October 2018. In the circumstances, I would make a one tenth deduction for pre-existing impairment because the arthritic process is contributing to the overall level of impairment in the circumstances, this determines the exact level of impairment and therefore the one tenth deduction is appropriate.”
In his report dated 30 March 2021, Associate Professor Truskett noted Dr Bodel’s report and commented:
“Dr Bodel has provided a 10% deduction. This is the deduction recommended by the NSW WorkCover Guides in reference to section 323 for pre-existing conditions, that condition is too difficult to judge. Given the appearance of Mr Lovelee’s degenerative disease, I do not believe that it is difficult and I would make at least a 50% deduction pursuant to section 323. His osteoarthritis was very advanced at the time of injury and documented to be symptomatic.”.
Left lower extremity
The appellant agrees that it was appropriate in the circumstances to make a deduction pursuant to section 323 in respect of the left lower extremity. The appellant submits; “it must be shown that he [the Medical Assessor] turned his mind to the relevant considerations required by Cole v Wenaline Pty Ltd[3] rather than treating the injuries to the appellant’s lower back and hip globally, particularly where the history in connection with both injuries is entirely different.”
[3] [2010] NSWSC 78.
The appellant noted the history in connection with the left hip injury and submits that Mr Lovelee had made a complete recovery from the effects of his injury. The Panel accepts that Mr Lovelee may well have felt that he had made a good recovery from his previous hip injuries but it is clear from the medical imaging that there were advanced osteoarthritic changes in the left hip of a nature which would contribute to the overall extent of impairment if aggravation should occur.
Having considered the authorities with respect to interpretation of section 323 of the 1998 Act, Basten JA in Vitaz v Westform (NSW) Pty Ltd[4] (Vitaz) said:
“…if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury… An Approved Medical Specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available”.
[4][2011] NSWCA 254 per Basten JA at [43].
In the present case the respective independent medical experts, Dr Bodel and Associate Professor Truskett, agree that there is a pre-existing condition present in the left hip justifying a deduction pursuant to section 323. The respective experts disagree as to the extent of that impairment but both express opinions based on their clinical experience. Dr Bodel explained that he was making the deduction “because the arthritic process is contributing to the overall level of impairment”.
The Panel accepts that the Medical Assessor in making his assessment was entitled to act on the whole of the evidence which included the imaging showing the substantial presence of osteoarthritis in the left hip. It is clear that this condition predated the subject injury.
The nature of the connection is spelled out by Dr Bodel in his report, that is, the presence of pre-existing osteoarthritis is likely, as a matter of clinical judgement, to contribute to the overall level of impairment[5]. It may well be the case, as stated by Associate Professor Papantoniou, that Mr Lovelee’s hip had returned to its previous level of function following the injury in September 2016, but the imaging clearly demonstrates that there was, nevertheless, severe osteoarthritis continuing to affect the left hip prior to the subject injury.
[5] Page 41 of the Application to Resolve a Dispute.
The appellant submitted
“There is no evidence that the appellant would have required a total hip replacement but for the accident on 1 August (sic) 2018 arising out of the previous injuries/osteoarthritis an assumption which appears to be made by Dr Kuma [sic – Dr Kumar, the Medical Assessor] at paragraph 3 page 8 of report in justifying a 50% deduction although he does not provide his reasoning.”
The Panel accepts that the requirement for the hip replacement resulted from both the pre-existing condition and the aggravation caused by the subject injury on 1 October 2018. In the absence of the pre-existing osteoarthritis, it is extremely unlikely that hip replacement would have been required as a result of the subject injury. Equally it can be argued that, but for the subject injury Mr Lovelee would not have required a total hip replacement or at least may have had that need postponed for years. Both the pre-existing condition and the subject injury have contributed to the requirement for the hip replacement.
The extent of that contribution is a matter of clinical judgement and experts may differ, but the Panel is satisfied that it was open to the Medical Assessor, having reviewed the statements, the medical reports in evidence and the reports of imaging, to conclude, as a matter of clinical judgement that there was a pre-existing condition in the left hip which contributed to the overall level of impairment and which should be assessed at one half.
Read as a whole, the MAC sets out the evidence upon which the Medical Assessor based his conclusion as to the extent of the deduction. The reasons for choosing that proportion is a matter of clinical judgement. As noted by the respondent in its submissions, Spigelman CJ in Australian Security & Investments Commission v Rich and Others[6] said: “An expert frequently draws on entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated.” That comment was directed to the weight to be given to expert evidence, but the Panel accepts that a similar principle applies to the expert opinion of a Medical Assessor.
[6] [2005] NSWCA 152 at [170].
The Medical Assessor came to a similar conclusion to Dr Bodel, that the pre-existing condition contributed to the overall level of impairment assessed. The Medical Assessor, having reviewed the evidence, reached a conclusion similar to that of Associate Professor Truskett with respect to the extent of that contribution. That conclusion was open on the evidence and no error is demonstrated in respect of assessment of the deduction to be applied with respect to the left lower extremity.
The appellant submitted that the Medical Assessor had not explained why the injury to the lateral cutaneous nerve of the left thigh for which an assessment of 2% WPI had been made, should be subject to deduction pursuant to section 323.
The Panel does not accept that submission. The Medical Assessor was required to assess Mr Lovelee in accordance with the Guidelines. The Guidelines refer the assessor to Chapter 17 of AMA 5. The Medical Assessor has detailed in the certificate that he has applied Table 16-10 of AMA 5 in assessing the left lower extremity. That course was consistent with the approach of Dr Bodel: “This leaves an 18% rating for the hip joint to be combined with the 1% sensory impairment of the lateral cutaneous nerve of the thigh, giving a 19% whole person impairment for the left lower extremity.[7]”
[7] page 41 of the Application to Resolve a Dispute.
Similarly, Associate Professor Truskett reported the application of Table 16-10 of AMA 5 as contributing to the impairment in the left lower extremity. The Panel accepts that assessment of peripheral nerve injuries forms part of the assessment of lower extremity impairment as provided by Paragraph 17.21 of AMA 5 (page 550).
The assessment of left lower extremity impairment by both Dr Bodel and Associate Professor Truskett included an assessment in respect of nerve damage. That damage flowed from the hip replacement surgery which in turn was required as a result both of the subject injury and the pre-existing osteoarthritic condition in the left hip. The Panel is of the view that section 323 of the 1998 Act directs consideration of the deduction from the overall level of impairment assessed in respect of the particular body part or system and the Medical Assessor did not fall into error in making the deduction from the total level of impairment assessed which included the nerve damage.
The Panel has concluded that no demonstrable error has been established nor any application of incorrect criteria in respect of the assessment of the deduction to be applied to the left lower extremity impairment.
Lumbar spine
The appellant repeated his submissions as to error in respect of the assessment of the deduction with respect to the lumbar spine. The Panel notes that Dr Bodel did not make any deduction in respect of the lumbar spine although he noted that the MRI scan performed shortly after the subject injury disclosed “multilevel degenerative disc disease but no nerve root compromise”. However, it does not appear from the report of Dr Bodel in evidence that he was aware of the injury to the lower back in 2017.
Dr Bodel noted the injury to the left hip on 17 August 2016 and then noted “He later had the episode of jarring of the back in the hip and has now had a total knee [sic] replacement as a result of that and that has been helpful.” Dr Bodel did note “bilateral osteoarthritic change in the facet joints at L5/S1”, commenting that surgery had not been recommended that time[8].
[8] Page 38 of the Application to Resolve a Dispute.
In his review of the imaging provided to him, Associate Professor Truskett noted the report of the MRI scan of the lumbar spine dated 7 February 2017 which disclosed multilevel thoracic and lumbar degenerative disc disease with minor contact with the exiting nerve roots secondary to disc bulges but with no significant foraminal or canal stenosis.
In his report dated 27 November 2018, Associate Professor Papantoniou noted: “Mr Lovelee has significant changes in his lumbar spine. Certainly these are enough to cause his ongoing symptoms of back pain and radiculopathy. The groin pain however is likely to be from previously diagnosed degenerative changes in the left hip.”
The MRI scan of the lumbar spine dated 26 October 2020 showed multilevel spine degenerative changes with mild to moderate degeneration involving multiple facet joints as well as intervertebral joint degeneration. These findings are not markedly different to the findings reported in respect of the pre-injury MRI in 2017.
The Medical Assessor recorded the nature of the activity that led to the subject injury:
“As he was driving the small forklift it was necessary to drive it over a broken road which had been repaired with road plates. These plates were raised around 4-5 cm off the ground. The impact of having to drive the road plates in a small forklift, which apparently did not have any suspension, jarred his back and hip and caused him to suffer injury.”
The Medical Assessor noted the earlier injury to the lower back on 24 January 2017 and the findings on the MRI scan of the lumbar spine that followed. The AMS noted: “The injuries to the back and left hip, with pre-existing degenerative arthritis, have been medically documented. Based on this I will make a 50% deduction for the current impairments of his back and left hip.”
The Medical Assessor further reported; “As explained earlier there is well-documented medical evidence that he had impairments of the back prior to this accident. I will consider a 50% deduction for pre-existing causes.”
The Panel considers that it was open to the Medical Assessor, as a matter of clinical judgement, to attribute one half of the level of impairment assessed on examination to the pre-existing condition disclosed by the medical imaging and having regard to the relatively minor nature of the jarring injury.
The appellant submitted that: “There is well-documented evidence that the appellant’s previous injury to his lower back had completely resolved by May 2017, a period of 17 months prior to the injury in October 2018 and we submit there is no evidence to the contrary.”
The imaging considered by the Medical Assessor disclosed a degenerative condition in the lumbar spine which of its nature would have impaired the efficiency of that portion of the spine, although without necessarily giving rise to noticeable symptoms. The Panel considers that it could not be said that the Medical Assessor fell into error in assigning a deduction of one half to his assessment of the lumbar spine.
The fact that a pre-existing condition may be asymptomatic is not determinative of the issue. What the Medical Assessor considered was whether the pre-existing condition is a contributing factor causing or contributing to level of impairment assessed.[9] Although Mr Lovelee may well have felt that he had made a full recovery from his previous injury in 2017, the imaging demonstrates significant pathology of a nature likely to give rise to impairment which would have been present prior to the subject injury.
[9] Vitaz per Basten JA at [43].
The appellant submitted that the Medical Assessor had mistakenly accepted that Mr Lovelee had not been previously seen by Associate Professor Papantoniou for his back, prior to the subject injury. The appellant submitted:
“Further Dr Kumar’s [the Medical Assessor’s] opinion at (e) on page 7 of his report is misleading in that it infers the appellant was seen by Associate Professor Papantoniou previously for his back which is false in that the appellant had not been treated by Papantoniou in connection with his back until his injury on 1 October 2018.”
That submission appears to be at odds with the evidence of the referral by Dr Lim to Associate Professor Papantoniou on 8 February 2017 which noted “Herewith Mr Christopher W Lovelee who has acute back injury with radiation with disc tears and bulges.[10]”
[10] page 245 of the Application to Resolve a Dispute.
The Panel accepts that the Medical Assessor was entitled to find that Mr Lovelee had been treated (or at least seen) by Associate Professor Papantoniou for his back prior to the subject injury.
The Panel notes the submission of the appellant that the assessment of the additional 2% WPI in respect of interference with activities of daily living should not have been subjected to the discount, but does not accept that submission.
Section 323 requires a deduction to be made for any portion of the impairment that is due to any previous injury, or to any pre-existing condition or abnormality. That deduction is required to be made “in assessing the degree of permanent impairment resulting from an injury”. Chapter 4 of the Guidelines addresses the assessment of impairment in respect of the spine. The chapter provides for the assessment of impairment on the basis of a diagnosis related estimate to which can be added further impairment based on interference with activities of daily living and a further component or modifier in respect of surgery. In addition further impairment may be assessed pursuant to Chapter 1.32 where treatment results in apparent substantial or total elimination of the impairment.
Paragraph 4.4 of the Guidelines provides:
“The assessment shall include a comprehensive, accurate history, a review of all pertinent records available at the assessment, a comprehensive description of the individual’s current symptoms in the relationship to activities of daily living (ADL); a careful and thorough physical examination; and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment.”
That Guideline indicates that interference with activities of daily living form part of the overall assessment of impairment flowing from the injury and the Panel is of the view that section 323 of the 1998 Act directs consideration of the deduction from the overall level of impairment assessed in respect of the particular body part or system.
The Panel is satisfied that neither demonstrable error nor application of inappropriate criteria has been established with respect to the assessment of the deduction pursuant to section 323 in respect of the lumbar spine.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 2021 should be confirmed.
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