McDermott v Saab Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	McDermott v SAAB Australia Pty Ltd [2023] NSWPICMP 290
APPELLANT:	Matthew McDermott
RESPONDENT:	SAAB Australia Pty Ltd
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Tomassino Mastroianni
DATE OF DECISION:	26 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury; appellant alleged error in the making of a section 323 deduction of one-half; the Appeal Panel was satisfied as to error as the making of a one-half deduction was not justified on the available evidence; a deduction of one-tenth was not at odds with the available evidence; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 February 2023 Mr Matthew McDermott lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 January 2023.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against), 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 (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 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 sought that he be re-examined by a Medical Assessor member of the Appeal Panel.
As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel was satisfied that the Medical Assessor made a demonstrable error, there was sufficient material before it to allow the Appeal Panel to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a)    Dr Guirgis report dated 15 November 2022;
(b)    correspondence from Beston McManis Lawyers dated 23 October 2022 and
17 November 2022, and
(c)    medical report of Dr Leicester dated 5 November 2021.
It is noted that the report of Dr Leicester was already in evidence.
The appellant submits that the evidence is relevant. The respondent objects to the admission of the late evidence on the basis that it would be prima face prejudiced by the admission of the late material at this stage of the proceedings.
The Appeal Panel determines that the evidence should not be received on the appeal as this evidence was available prior to the medical assessment taking place.

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.

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:

12/12/13

•

Body parts / systems referred:

Cervical spine

•

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 SIRA 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)

Cervical spine

12/12/13

Chap 4 P 24

P 392 T 14-05

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

The worker appealed. There is no complaint on appeal about the overall level of whole person impairment (WPI) assessed of 17%. The appeal concerns only the extent of the deduction made by the Medical Assessor under s 323.
In summary, the appellant submitted on appeal that the Medical Assessor erred in the making of a deduction of one-half under s 323.
In summary, SAAB Australia Pty Ltd (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error and the MAC should be confirmed.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr McDermott related that on 12/12/13, he was carrying out an inspection on a Royal Australian Navy ship in the Western Australian Garden Island Naval Base.     He was wearing a protective hard hat at the time and was working in the engine room.     As he rose up from bending forward, he was not quite aware of the positioning of pipes and other structures above him and struck his helmeted head against some such structure above him.     This resulted in a jarring effect on his neck with neurological radiation down his right arm.
He reported to the supervisor and went to a local General Practitioner.     He was due to return to Sydney several days later.     When he went back to Sydney, he saw his own doctor.     A range of investigation scans were taken, and he was referred for physiotherapy.     He continued with his job.     The condition tended to continue.     Several years later, in mid-2019 the condition deteriorated markedly.     He requested further clinical assistance for this.     He later came under the care of Specialist Neuro-surgeon, Dr Raj Reddy.     Further investigations were conducted which demonstrated significant dysfunction at the C5/6 articulation.     It was recommended that he should have a neuro-surgical procedure.     This has never been undertaken.     His clinical management has continued conservatively.
Present treatment:
He takes analgesics as and when he feels the need.     There is no other treatment.
Present symptoms:
Pain in his neck with radiation down his right arm with pins and needles.     This affects mostly the distribution of C6, predominantly into the thumb and index finger.     His sleep is disturbed.
Details of any previous or subsequent accidents, injuries or conditions:
Attention is drawn to a rear-end vehicle accident which occurred in 2012.     In scrolling through the file, there is a referral of 04/05/12 by his General Practitioner to Specialist Neurologist, Dr Dennis Cordato, giving a history of pain and tingling down the right arm in the C6 distribution.     At that stage, his reflexes were described as normal.     This condition was described to have been in existence for about eight months since the rear-end vehicle accident.     Mild right sided C6/7 radiculopathy was suspected.     This condition was ultimately managed conservatively.
General health:
This is fairly good.     He is not on treatment for anything else.
Work history including previous work history:
Mr McDermott was initially in the Engineering Branch in the Royal Australian Navy.     When he left this, he joined Saab Australia.     This is a commercial engineering company which was on contract to the Navy for engineering management of ships in dock.     His job therefore was remarkably similar to the job he had been doing in the Navy.
His position with Saab was made redundant in September 2019.     A couple of months later, in November 2019, he found a similar job with All Ships Engineering.     He described that this was run by a couple of engineers who had previously served in the Navy and he was doing a similar job to the job with Saab.     He is not involved in physically arduous work.     He does some inspection work.     Most of his work is office based.
Social activities/ADL:
Mr McDermott has a de facto wife.     He is a non-smoker.     Occasionally he enjoys a modest drink.
Many years ago he was a keen and gifted soccer player.     He played for the Navy and also played at National level.
His main hobby at the moment is looking after his dog.     He can drive for about 45 minutes.    Any longer and he starts experiencing increasing pain in his neck, with radiation down the right arm.
He does his best to help with household activities, although cannot do anything like his previous activities.     He is just about able to manage cutting the grass, provided that he does it in small instalments.”
The Medical Assessor reviewed the special investigations as follows:

DATE

INVESTIGATION

RESULTS

24/05/12

Nerve conduction studies

C6 and 7 nerve root reduced activity on the right.

26/06/12

MRI scan cervical spine and brachial plexus

No significant features demonstrated with the brachial plexus. At C5/6 there are degenerative changes on the right, with foraminal narrowing causing probable irritation of the C6 nerve root.

05/09/19

MRI scan cervical spine

Degenerative changes in the cervical spine, particularly at the C5/6 articulation. The previously described foraminal stenosis continues, predominantly on the right and to a lesser extent on the left.

02/12/20

04/12/20

Bone scan

Degenerative changes at C5/6 on the right (and in the acromio-clavicular joints).

The Medical Assessor conducted a physical examination which he recorded and about which there is no complaint on appeal as follows:
“Mr McDermott was of average stature with a height of 1.8m.     His current weight was 95kg.     With these parameters, he currently has a body mass index of over 29.     This is very overweight and is only just under the technical category of “obese”.     The upper level of healthy BMI is 25.     In order to achieve this, he should be no more than 81kg.     He was in moderate discomfort with his neck.
Cervical Spine.     There was pain in the neck, mostly in the lower segments with tenderness on the right side.     Forward flexion was just about normal.     Lateral rotation to each side was reduced to two-thirds of the range.     Lateral flexion to each side was reduced to half the range.     Extension was further reduced to one-third of the range.
Upper Limbs.     He had a completely normal and symmetrical range of movement of the shoulders, elbows, wrists, hands and all digits.     He was able to carry out an inclined push-up against the wall without any scapula winging, demonstrating satisfactory function of the serratus anterior and the long thoracic nerve (C5, 6 and 7).
Sensation to pinprick was reduced in the right arm in the C6 dermatomal distribution.     This was mostly demonstrated over the right thumb and index finger.
Reflexes were present at the elbows (C5 and 7) and at the wrists (6), although all reflexes on the right seemed to be quite depressed.”
The Medical Assessor summarised his diagnosis and findings as follows:
“Summary of injuries and diagnoses:
Mr McDermott sustained a jarring injury to his neck towards mid-December 2013 when he stood up from a stooped position and banged his helmeted head against an immoveable object above him.     This resulted in radiculopathy features radiating down the right arm.     Some 19 months beforehand, he had been involved in a rear-end vehicle accident in which he had experienced similar features.   At that time, radiological and nerve conduction investigations had demonstrated partial stenosis on the right at the C5/6 articulation with probable irritation of the C6 nerve root on the right.     It is therefore evident that in this recent event in the ship’s engine room in December 2013, he aggravated this pre-existing condition from the vehicle accident.
Despite subsequent recommendations that there should be a neuro-surgical procedure (described in 2019), this form of management has never gone ahead. At this assessment he continues to have mild to moderate dysfunction of the cervical spine with some radiculopathy features in the right arm.     Nevertheless, he is able to manage surprisingly well in his current state.
·    Present treatment:
He takes occasional analgesics. He also carries out his own stretch and exercise regime.
·    Present symptoms:
The major issue is pain in his neck radiating towards the right and down his right arm with pins and needles.     This predominantly effects the C6 distribution with his thumb and index finger particularly.     His sleep is disturbed.
·    Details of any previous or subsequent accidents, injuries or conditions:
Attention is drawn to the rear end vehicle accident which occurred 19 months before this event of December 2013.     The subsequent clinical features and investigations were very similar.     It is therefore evident that in this event in December 2013, he aggravated this pre-existing condition of the cervical spine at the C5/6 articulation.
·    Consistency of presentation:
Mr McDermott’s presentation was completely consistent.”
The Medical Assessor explained his assessment of impairment as follows:
“The cervical spine is addressed in AMA 5 Page 392, Table 15-05. With these features, Mr McDermott has continuing radiculopathy in the right arm and is therefore in DRE Cervical Category III. This provides a whole person impairment ranging between 15% and 18%, depending on the activities of daily living. For this he would attract a further 2%, giving 17%.”
There is no complaint on appeal about the overall level of WPI assessed at 17%.
The Medical Assessor highlighted the prior injury as follows:
“Attention is drawn to the rear-end vehicle accident which occurred some 19 months beforehand, resulting in dysfunction at the C5/6 articulation with irritation of the C6 nerve root and radiculopathy features.”
The Medical Assessor made brief comment on the other evidence and medical opinion which was before him as follows:
“Specialist Orthopaedic Surgeon, Dr Medhat Guirgis in his first report of 17/08/21 also assesses DRE III with 17%, and deducts one-tenth. In his second report of 30/08/22 when provided with the radiological findings and the nerve conduction studies associated with the previous vehicle accident, he assesses that this vehicle accident would have placed Mr McDermott into DRE III with 15% WPI. This figure is therefore deducted from 17%, resulting in an impairment of 2% WPI from this event December 2013.
Specialist Orthopaedic Surgeon, Dr Brett Courtenay in his first report of 25/07/22 draws attention to the previous injury due to the vehicle accident in 2012. As a result of this, he selects a deduction of one-quarter. In his second report of 26/09/22, he revises the deduction and selects half, giving an ultimate whole person impairment of 9%. I am persuaded that this later approach is the most appropriate way of assessing this issue.”
The Medical Assessor explained his reasons for a one-half deduction as follows:
“As advised, there has been a significant pre-existing condition at the C5/6 articulation some 19 months beforehand. This resulted in radiculopathy features. In this second event in the engine room of the ship, this previous condition was aggravated. At this assessment, Mr McDermott clearly had continuing dysfunction of his cervical spine with radiculopathy radiating down the right arm. The baseline whole person impairment in DRE Cervical Category III was 15%. With activities of daily living, this raised the whole person impairment to 17%. A frequent deduction in cases with pre-existing features similar to this one is a deduction of one-tenth. This, however is at complete odds with the existing clinical and recorded evidence. Dr Medhat Guirgis has deducted the full 15% of the baseline of DRE III, leaving a final whole person impairment of 2%. Dr Brett Courtenay takes a more modest approach and deducts half. I believe that a deduction of half of the whole person impairment for the pre-existing condition is appropriate. This therefore reduces the whole person impairment from 17% down to 8.5%, which is rounded up in Mr McDermott’s favour to 9%.
(I was unable to identify any numerical whole person impairment calculated from the earlier vehicle accident in 2012. If this had been available, it would have been appropriate to pursue technique of impairment assessment advocated by Dr Medhat Guirgis.)”
A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. Where the extent of the deduction would be too difficult or too costly to assess the deduction should be one-tenth unless that is at odds with the available evidence.
The Medical Assessor assessed a deduction of one-half as he considered that a one-tenth deduction was at odds with the available evidence.
However, the deduction of one-half made by the Medical Assessor is at odds with the available evidence and is at odds with the clinical picture prior to the referred injury of
12 December 2013 and represents a demonstrable error.
This is because the available evidence was that as at the time of the referred injury of
12 December 2013, the appellant had no radicular signs and symptoms. He had recovered well from the rear end collision which Dr Leicester, independent medical expert (IME) qualified on behalf of the respondent, describes in a report dated 15 November 2021 as a “low velocity accident” and which resulted in neck pain which had features of a whiplash injury rather than radiculopathy. He lost no time from work and was working without restriction and was not seeking or receiving treatment. In contrast the subject injury resulted in verifiable C6 radiculopathy.

There is no justifiable basis on the radiological and clinical evidence that existed prior to the subject injury to deduct one-half for the following reasons:
·        MRI cervical spine 26 June 2012 Dr Masters reports spondylotic changes at C5/C6 with foraminal stenosis ad potential compression of the right C6 nerve root; the appearances are otherwise unremarkable.
·        Nerve Conduction Study 24 May 2012 Dr Schwartz-
Mild neurophysiological evidence of mild chronic right C6,7 nerve root dysfunction.
·        Report Dr Schwartz 24 May 2012.
Clinical examination revealed normal power normal reflexes and normal tone.. Sensory examination to pinprick was symmetrical and normal. Neurophysiological studies revealed a mild chronic right C6/7 radiculopathy without any evidence of peripheral nerve entrapment.
·        MRI cervical spine 5 September 2019 Dr McDermott.
Moderately severe asymmetric C5/6 central canal stenosis. Severe right C5/6 foraminal stenosis, moderate left C5/6 foraminal stenosis.
·        The appellant had radicular symptoms in 2012 as described by Dr Schwartz. He had normal neurology in the arm which is also confirmed in the examination by the GP on 4 May 2012.
·        The appellant had non-verifiable radicular pain not radiculopathy in 2012 (Guidelines page 27 paragraph 4.28). The appellant states he recovered from the injury in 2012.
The contribution of the prior injury, condition, or abnormality should be taken into account and a deduction of one-tenth is not at odds with the available evidence.
This leaves 17% WPI less 1.7 equals 15.3% WPI which is rounded down to 15% as a result of injury on 12 December 2013.
Accordingly, the Appeal Panel will revoke the MAC and issue a new MAC in accordance with these reasons.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 January 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7243/22
Applicant:	Matthew McDermott
Respondent:	SAAB Australia Pty Ltd

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

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

Table - whole person impairment (WPI)