Maclean v Pythid Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Maclean v Pythid Pty Limited [2023] NSWPICMP 77
APPELLANT:	Scott Maclean
RESPONDENT:	Pythid Pty Limited
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	8 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 1/10th deduction pursuant to section 323; appellant worked as a bricklayer for at least 20 years; suffered injuries when he fell off a ladder; subsequent treatment revealed degenerative disc disease; no evidence that condition had been symptomatic; whether Medical Assessor (MA) applied the correct test for asymptomatic degenerative disease; Held – MA erroneously assumed that mere presence of degenerative disease required a 10% deduction; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) considered and applied; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 August 2022 Scott Maclean, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Tommasino Mastroianni who issued a Medical Assessment Certificate (MAC) on 18 July 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 limited to the ground(s) of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 28 June 2022 the delegate referred this matter to the Medical Assessor for assessment of WPI caused by injury to the cervical spine, lumbar spine, left lower extremity (ankle) and scarring (TEMSKI), which occurred on an agreed date of 12 January 2015. Mr MacLean was injured on that date when he fell two metres to the ground when scaffolding collapsed, causing bricks present on the scaffold and part of the brick wall to collapse on him.
He sought medical attention and returned to work but found after a week or so the pain was intense and he sought further treatment.
On 25 March 2015 he had a left foot subtalar arthrotomy and reduction and internal fixation of a large displaced lateral talar process fracture.
On 23 January 2020 a further procedure removed two calcaneus screws with a distal tibial bone graft harvest and left subtalar joint fusion.
Mr MacLean experienced neck and back pain which he initially attributed to the use of crutches. However the pain persisted after he came off the crutches.
The Medical Assessor assessed 20% WPI, after making deductions pursuant to s 323 of the 1998 Act for the cervical and lumbar areas of the spine.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by a member of the Appeal Panel.

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 which 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 appellant appealed against the 1/10^th deduction made in relation to the lumbar spine. No appeal was lodged against the deduction regarding the cervical spine, as the effect of rounding meant that the cervical spine assessment was unchanged.

The MAC

The Medical Assessor summarised his opinion at [7] of the MAC:
“As a result of the accident when he fell off a scaffold he sustained injuries to the neck, back and left ankle. He had an open reduction and internal fixation for the fracture of the talus followed by fusion of the subtalar joint.
My clinical diagnosis is fusion of the subtalar joint, cervical spondylosis and lumbar spondylosis.”
The Medical Assessor said that the appellant presented in a genuine manner and there were no inconsistencies.
At [8e] and [8f] the following appeared:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Neck and lower back
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Not applicable.”
In giving his reasons for his assessment of the back, the Medical Assessor said at [10a]:
“He falls into DRE Lumbar Category II. ADLs are affected, however he is independent in self-care. I assess 7% whole person impairment. There is evidence of preexisting degenerative disease as evidenced by the x-rays done after the accident. The preexisting degenerative disease is a component of the current impairment. Being guided by the history of no previous injuries or problems with the back, and the established degenerative disease, I have deducted one-tenth applying the provision of s323. This equates to 0.7% WPI. He therefore has 6.3% WPI which rounds off to 6%.”
The Medical Assessor commented on the opinions of the medico-legal experts. Dr James Bodel had found that no s 323 deduction should be made, whilst Dr Gothelf found no impairment for the lumbar spine. Notwithstanding, Dr Gothelf found that a 1/10^th deduction should be made for the “spine.”[1] The Medical Assessor agreed.
[1] Appeal papers page 400.
The 1/10^th deduction applied by the Medical Assessor was explained at [11]:
“The worker has evidence of underlying degenerative disease both of the lumbar and cervical spines. In my opinion, the persistent symptoms in the neck and back are as a result of the injury sustained at work and the underlying degenerative disease. I am of the opinion that the preexisting degenerative disease is a component of the current impairment. I have deducted one-tenth as outlined under 10a applying the provision of s323(2) as the extent of the deduction is difficult or costly to determine.”

SUBMISSIONS

The appellant

The appellant’s submissions were drafted by Mr Luke Morgan of counsel.
Mr MacLean emphasised that he had worked as a bricklayer for many years without any complaint concerning his lower back. It was uncontested that Mr MacLean was “free from any pre-existing injuries, treatment, complaints or impairment pre-injury”.
We were referred to a series of cases that indeed the respondent also relied on, that are accepted authority in the consideration of s 323 of the 1998 Act.[2]
[2] Cole v Wenaline Pty Ltd [2010] NSWSC 78; Fire & Rescue NSW v Clinen [2013] NSWSC 609; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSW SC 365; Ryder v Sundance Bakehouse [2015] NSWSC 526.
The appellant submitted that these authorities demonstrate that it was necessary to find pre-existing abnormality or condition actually contributing to the impairment caused by the subject injury. There must be evidence to substantiate that contribution - assumption or hypothesis would not suffice.
Mr MacLean submitted firstly that there was no evidence of any symptomatic pre-existing condition in the lumbar spine and secondly that there was no evidence that there had been any “prior impairment or any other factor” which would justify any deduction.
It was submitted that the mere existence of degenerative change or abnormality was insufficient to warrant a deduction without more evidence.
Mr MacLean argued that the fundamental problem with the MAC was “the assumption that evidence of pre-existing condition means, ipso facto, a deduction must be applied. This misunderstands the statutory scheme and is an error of law.” It was submitted that there was no evidence of any pre-existing condition for which an attributable impairment could be identified.

Respondent’s submissions

The respondent noted that a Medical Assessor was required to make an assessment based on his findings on examination, his knowledge and experience, and consistent with the Guides. The respondent noted (unremarkably) that a Medical Assessor was not bound to accept at face value medical evidence that was provided to him. He was required to make a determination in accordance with the whole of the medical evidence and findings before him.
It was submitted by the respondent that the Medical Assessor had not made any error. The respondent acknowledged the evidence from Mr MacLean that he had not injured his lower back before and that he had not made a claim for personal injuries prior to the subject injuries.
We were referred to a report by Dr James van Gelder, neurosurgeon, of 2 November 2017.[3] A CT scan dated 2016 had shown degenerative disc disease at L5/S1, and a moderate intervertebral disc protrusion. A subsequent MRI of 10 November 2017 ordered by
[3] Appeal papers page 143.
Dr Van Gelder confirmed marked degenerative pathology.
The respondent surveyed the evidence, noting that various medical examiners noted the presence of the degenerative disc disease, including Dr Bodel. It followed, it was submitted, that Dr Bodel was in error when he said that there was no basis for a deduction for pre-existing impairment, and he had overlooked the presence of degenerative disease.
The respondent submitted that there were no clinical notes or reports from any general practitioner (GP) that pre-dated Mr MacLean’s injury and that therefore the respondent had to accept Mr MacLean’s word that he had suffered no prior back pain.
It was accepted that Mr MacLean had been working as a full time bricklayer which involved heavy, labour-intensive work.
The assessment of the s 323 deduction was made, it was submitted, by the application of the Medical Assessor’s expertise. The deduction was not at odds with the available evidence, which the respondent said demonstrated significant contemporaneous degenerative change. Whether the pre-existing condition had been symptomatic or not was not the test, the respondent argued. The medical evidence showed a pre-existing condition which would have contributed to the subject impairment.
The respondent referred to the same authorities relied on by the appellant, arguing that a proper application of the principles supported the Medical Assessor’s s 323 assessment.

DISCUSSION

Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Section 323 has been considered in many different circumstances, as can be seen by the number of authorities relied on by the parties. Of the authorities cited, Elcheikh is the most relevant to the present circumstances. Mr Elcheikh suffered from Scheuermann’s disease, a condition he had acquired when adolescent. There had been a 15 year gap between that time and the onset of Mr Elcheikh’s back symptoms in his mid-30s, during much of which time he had been engaged in an active lifestyle and arduous physical work. He had been asymptomatic during that time. When he became symptomatic whilst doing his heavy work he had to eventually cease work altogether, and he came to a four level spinal surgery as part of his treatment. The Approved Medical Specialist (as Medical Assessors were then) deducted 50% on account of the pre-existing Scheuermann’s disease.
From [88] Schmidt J restated her earlier findings in Cole. She said (emphasis added):
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion:
‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.
89. As discussed in Cole v Wenaline Pty Limited at [30], that assessment cannot be made on the basis of an assumption or hypothesis that a pre-existing condition contributed to the impairment flowing from the subsequent injury. It has to have regard to the evidence as to the actual consequences of the pre-existing condition.”
In considering the reasons given by the Appeal Panel, Schmidt J said at [91]:
“91. [The Appeal Panel] noted, correctly, that the fact that the pre-existing condition had been asymptomatic did not preclude it from contributing to the impairment being assessed. Nor, however, could it be assumed that an asymptomatic condition did contribute to the impairment. Whether or not there had been any contribution had to be determined on the evidence, which included the competing specialist opinions on that matter, as well as various other evidence.”
Her Honour said at [94]:
“The medical specialist plainly considered that the evidence established that the Scheuermann's disease, completely asymptomatic and something of which Mr Elcheikh learnt only after treatment for his workplace injury was sought, was primarily responsible for his impairment. In reaching that conclusion he had to consider not only the evidence of the conflicting expert opinions about whether this condition had contributed at all to the impairment, but also the other evidence which shed light on this question. While the medical specialist referred to the various reports in evidence and identified which he preferred, he did not explain why. He also did not refer to the evidence that the pre-existing condition had been asymptomatic, nor did he explain what the other evidence showed its contribution to the resulting impairment to have been.”
In the present case Mr Maclean had worked as a bricklayer for many years. His statement was brief, and did not detail his working life. Both Dr Bodel and Dr Gothelf noted that
Mr MacLean had worked as a bricklayer for a number of different companies over the years and all around Sydney. Dr Bosanquet took a history that he had worked as a bricklayer for 20 years.
Bricklaying is well known to be arduous work, and Mr MacLean did not report any symptoms in his back prior to his accident on 12 January 2015.
In his report, Dr Bodel said that there was no clinical indication of any pre-existing abnormality or condition, not that there was no degenerative disease found on the imaging, as was submitted by the respondent. Dr Bodel acknowledged that an underlying disease process was detected in the MRI scan of 9 November 2017. He found no clinical indication that the pre-existing disease process constituted a basis for any deduction for pre-existing impairment.[4]
[4] Appeal papers page 105.
We had some difficulty in understanding the purport of the respondent’s submission that there were no clinical notes or reports from any GP who may have treated Mr MacLean prior to the injury. Mr Maclean reported that he had no prior back pain, and we note that the Medical Assessor found him to be genuine and consistent. Those matters raised a prima facie case that Mr MacLean had no prior back pain.
The clinical notes the respondent thought might have been relevant had not been sought pursuant to Commission procedure which was available to the respondent. We reject the submission that there might have been other relevant evidence as being speculative, and unhelpful.
The dicta in Elcheikh we have underlined emphasises the importance of all the evidence being considered by a Medical Assessor when making a s 323 deduction.
Whilst the Medical Assessor correctly found that the underlying disease was a component of the impairment caused by the subject accident, he was mistaken in therefore making the 1/10^th deduction pursuant to s 323. It does not follow that the presence of a pre-existing condition must automatically result in a deduction. The Medical Assessor did not explain how the underlying disease process contributed to the impairment caused by the accident, in light of the evidence pertaining to Mr MacLean’s long history of working as a bricklayer, and when that disease process had not caused any symptoms. The Medical Assessor did not explain how the component he recognised as being a cause of the current impairment - the pre-existing degenerative disease - had also caused an impairment which contributed to that cause. The Medical Assessor assumed that where a pre-existing asymptomatic degenerative disease had been established after the injurious event had occurred, a s 323 deduction should follow as a matter of course. As was explained by Schmidt J, such an assumption is erroneous.
The Medical Assessor did not give adequate reasons as to why a deduction was warranted in the face of all the evidence. We are of the view that, despite the appearance of degenerative changes found in the subsequent imaging following the injury, they were not causing any impairment that contributed to that caused by the subject injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 July 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	M1-W2687/22
Applicant:	Scott Maclean
Respondent:	Pythid Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Tommasino Mastroianni, and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Cervical spine	12/01/15	Chapter 4 Page 24-29	Chapter 15 Page 392 Table 15-5	5%	Nil	5%
Lumbar spine	12/01/15	Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-3	7%	Nil	7%
Left lower extremity	12/01/15	Chapter 3 Pages 13-23	Chapter 17 Pages 523 to 564	10%	Nil	10%
Scarring (TEMSKI)	12/01/15	Chapter 14 Pages 73-74	1%	Nil	1%
Total % WPI (the Combined Table values of all sub-totals)					21%

[2023] NSWPICMP 77

8 March 2023