Merhebi v Asahi Beverages Australia (Formerly known as P&N Beverages Australia Pty Ltd and prior to that known as Bev Pak Aust Pty Ltd)
[2022] NSWPICMP 323
•12 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Merhebi v Asahi Beverages Australia (Formerly known as P&N Beverages Australia Pty Ltd and prior to that known as Bev Pak Aust Pty Ltd) [2022] NSWPICMP 323 |
| APPELLANT: | Abdul Merhebi |
| RESPONDENT: | Asahi Beverages Australia (Formerly known as P&N Beverages Australia Pty Ltd and prior to that known as Bev Pak Aust Pty Ltd) |
| APPEAL PANEL: | Member Richard Perrignon Medical Assessor John Ashwell Medical Assessor David Crocker |
| DATE OF DECISION: | 12 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of 12% whole person impairment, 6% lumbar spine, 2% cervical spine, 4% right knee in 2014; whether deterioration has resulted in an increase in the degree of permanent impairment; whether condition or degree of permanent impairment of the left shoulder may be taken into account; where not assessed in 2014; whether time should be extended for filing a Notice of Opposition; whether leave needed to rely on fresh evidence; Held — Medical Assessment Certificate set aside and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Merhebi, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Beer dated 16 July 2014. He says that his condition has deteriorated since the assessment, resulting in an increase in the degree of permanent impairment: s 327(3)(a), Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
He also seeks leave to rely on fresh or additional evidence in support of his appeal: s 327(3)(b).
As the assessment of Dr Beer has not been the subject of a determination by the Personal Injury Commission (the Commission) or by a court, or of a complying agreement, the parties are agreed that s 327(7) does not deprive the worker of his right to appeal.
By way of background, Mr Merhebi worked in a soft drink factory. On 10 May 2000 he suffered injury when he slipped and fell on a wet floor at work.
In 2014, he applied to the Workers Compensation Commission for assessment of whole person impairment, for the purposes of a threshold dispute. The Registrar referred him to Approved Medical Specialist Dr Beer, for assessment of the back, neck and right leg at or above the knee, using the whole person impairment method of assessment.
By a Medical Assessment Certificate dated 16 July 2014, Dr Beer assessed a 12% whole person impairment as a result of injury on 10 May 2000, as follows:
(a) Lumbar spine 6%.
(b) Cervical spine 2%.
(c) Right knee 4%.
In the table to his certificate, he referred to these as ‘Back’, ‘Neck and ’Right leg at or above knee’ respectively, doubtless because of the terms of the referral. However, his calculations make it clear that he was assessing whole person impairment in respect of the body parts named above, which are appropriate to the whole person impairment method of assessment. He made deductions as follows:
(a) Lumbar spine: Dr Beer assessed a 7% whole person impairment, from which he deducted 1/10th for pre-existing degenerative change, yielding a 6% whole person impairment.
(b) Cervical spine: He assessed a 5% whole person impairment, from which he deducted 3/5ths for pre-existing change, yielding a 2% whole person impairment.
To prove that his condition has deteriorated since the 2014 assessment, Mr Merhebi relies on an assessment by general surgeon, Dr Berry, dated 16 November 2016. Dr Berry assessed a 17% whole person impairment (7% lumbar spine, 5% cervical spine, 4% right lower extremity, 1% upper digestive tract). The appellant does not rely on his assessment of the digestive tract, as the Workers Compensation Commission had issued an award for the respondent by consent with respect to an application for whole person impairment compensation in respect of the digestive tract.
When the digestive tract is omitted, Dr Berry’s remaining assessments in 2016 (7% lumbar spine, 5% cervical spine, 4% right lower extremity) combine to yield a 16% whole person impairment, for comparison with Dr Beer’s assessment of 12% in 2014.
As evidence of deterioration, Mr Merhebi also seeks to rely on radiological reports, and clinical notes of consultations with treating general practitioners produced since Dr Beer’s assessment.
The respondent filed its Notice of Opposition out of time on 27 September 2021, after being told by the Commission that it would consider an application to extend time, if made. The respondent seeks an extension of time to that date, on the basis that it was unaware of these proceedings until notified of their existence by the Commission, because:
(a) originating process had been served on solicitors who no longer acted for the scheme agent (Allianz) which had conducted the most recent proceedings between the parties in 2020, and
(b) the solicitors did not alert the scheme agent or iCare.
Mr Merhebi opposes the grant of an extension of time.
In answer to the appeal, the respondent says that, as recently as 20 November 2019, Dr Berry assessed (excluding his assessment of the left upper extremity, which was not assessed by Dr Beer) an 11% whole person impairment (7% lumbar spine, 0% cervical spine, 4% right leg - knee). It submits that Dr Berry’s most recent assessment demonstrates, not an increase, but a decrease in the degree of relevant permanent impairment.
PRELIMINARY REVIEW
On 25 August 2021, the President’s delegate was satisfied that a ground of appeal under s 327(3)(a) was capable of being made out, and referred the matter to this Appeal Panel for determination.
The Appeal Panel conducted a preliminary review of the original medical assessments in the absence of the parties and in accordance with the Guidelines. Being satisfied, for the reasons set out below, that an extension of time should be granted to the respondent, and that there was evidence of a deterioration in the worker’s condition since Dr Berry’s assessment resulting in an increase in the degree of permanent impairment, the Panel referred the worker to one of its members for assessment.
SUBMISSIONS - EXTENSION OF TIME
With respect to the grant of an extension of time, the respondent’s submissions are summarised above. In brief summary, the appellant worker responds as follows.
(a) On 22 April 2020, in proceedings 1292/20, the Workers Compensation Commission made awards by consent in respect of a 5% permanent impairment of the back, a 10% permanent impairment of the left leg at or above the knee, and an award for the respondent in respect of a claim for permanent impairment compensation with respect to loss of bowel function.
(b) In respect of that claim, Messrs Sparke Helmore acted for Allianz, which was the scheme agent for iCare.
(c) By letters dated 15 June 2020, the worker’s solicitors gave notice to Allianz and the employer of the worker’s intention to make a claim for work injury damages, including particulars of the claim.
(d) By email dated 1 July 2020, Sparke Helmore confirmed that they were instructed to act for the defendant in respect of the claim, attaching a letter requesting further particulars. That attached letter confirmed that Sparke Helmore acted for iCare.
(e) By email dated 9 July 2020, those solicitors declined the claim on behalf of their client, on the basis that Dr Beer’s assessment of 12% did not meet the threshold for work injury damages.
(f) On 5 May 2021, the worker’s solicitors provided further particulars as requested.
(g) On 6 May 2021, Sparke Helmore sent an email saying, ‘We have sought further instructions and we will come back to you’.
(h) By letter dated 12 July 2021, the worker’s solicitors served on Sparke Helmore an application to appeal from the assessment of Dr Berry, which had been filed in the Commission that day. Its purpose was to secure a further examination by a Medical Assessor, to meet the 15% threshold so that the work injury damages claim could proceed. They said,
“Given you act for the workers compensation insurer we have not served the Application on your client insurer. If you also require us to serve a copy of the Application on your client insurer, please advise our office. A copy of the Application has also been served on the Respondent.’
(i) By email to the Commission and to the appellant’s lawyers dated 25 August 2021, Sparke Helmore advised that their instructions had been withdrawn on 31 July 2021 ‘due to the iCare legal panel transition plan’. They added,
‘We forwarded the Notice of Appeal to iCare seeking instructions to act but did not receive any such instructions’.
(j) The applicant served the Notice of Appeal on Sparke Helmore, not because those solicitors had been instructed in the Workers Compensation Commission proceedings, but because they were instructed to handle the work injury damages claim on behalf of iCare. The appeal was brought for the purposes of meeting the threshold in respect of the work injury damages claim. The Notice of Appeal was served on 12 July 2021, before instructions were withdrawn on 31 July 2021.
The following chronology is also relevant:
(a) On 10 September 2021, and again on 14 September 2021, the Commission sought advice from iCare as to whether it intended to file a Notice of Opposition in these appeal proceedings, in each case without response.
(b) On 17 September 2021, in response to a further inquiry from the Commission, iCare advised the name of an officer responsible for carriage of the matter, indicating its (incorrect) understanding that the worker had been referred for assessment by the Commission, due to iCare’s failure to lodge a Notice of Opposition, but indicating that it would urgently file a Notice of Opposition if that was not the case.
(c) On 27 September 2021, after being informed that the Commission would consider an application for extension of time, if made with reasons for delay, iCare filed a Notice of Opposition, together with submissions in support of an extension of time.
Disposition - Application to extend time
The respondent applies for an extension of time to file its Notice of Opposition on the basis that the interests of justice require it. It says that the worker failed to serve his Notice of Appeal on the scheme agent (Allianz), but instead served it on solicitors who had acted for iCare in the workers compensation proceedings in 2020.
The email correspondence from Sparke Helmore indicates that they had instructions from iCare to act in respect of the work injury damages claim from at least 1 July 2020, and that those instructions were not withdrawn until 31 July 2021.
The Application to Appeal was filed and served on 12 July 2021, in order to meet the threshold for the purposes of the work injury damages claim, which had been declined by the respondent on a threshold basis. At that time, we are satisfied that Sparke Helmore had instructions to act for iCare in respect of the work injury damages claim. Service of the Application to Appeal on Sparke Helmore on 12 July 2021 constituted service on their client, iCare.
In the circumstances they faced, the appellant’s lawyers acted appropriately in serving the Application to Appeal on Sparke Helmore.
The email correspondence from Sparke Helmore dated 25 August 2021 indicates that, by that date, those solicitors had in fact provided iCare with the Application to Appeal. That correspondence is inconsistent with the submission of iCare that the solicitors had failed to alert it to the existence of the proceedings. Reconciling the evidence as best we can, it seems likely that the Notice of Appeal was forwarded to iCare by Sparke Helmore, but for one reason or another did not find its way to the appropriate officer.
A Notice of Opposition is to be filed within 21 days of service of an Application to Appeal from a Medical Assessment Certificate. As indicated, the Notice of Opposition was filed on 27 September 2021. There was a delay of about 11 weeks between service of the Application to Appeal on 12 July 2021 and filing of the Notice of Opposition on 27 September 2021. That delay was significant.
Noting that service of the Application to Appeal on iCare’s solicitors was effected on 12 July 2021, and there is no evidence to establish that it had been provided by them to iCare before 24 or 25 August 2021, it seems to us likely that:
(a) the application to appeal first came to the attention of the officer responsible for handling them after the 21 days had expired, and
(b) iCare did not then give instructions to file a Notice of Opposition because it mistakenly assumed that, in the absence of opposition, the worker had already been referred for assessment.
In our view, that constitutes an explanation for the delay. The appellant does not submit that the delay has caused him any prejudice, and we are not satisfied that it has.
Contrary to the appellant’s submissions, the power to extend time under Rule 69(2) is not dependent on a finding of exceptional circumstances.
Attached to the Notice of Opposition are four reports of Dr Berry which post-date his assessment of 2014, on which the appellant relies. They were not disclosed by the appellant to the Panel, apparently because he does not rely on them. He says they are not relevant to the issues at hand. However, they include a subsequent assessment of permanent impairment and opinions relevant to the issue of deterioration. In our view, they are potentially both relevant, and of assistance to the Panel. We agree with the submission of iCare that it is appropriate for the Panel to have access to those reports, in order properly to determine the appeal.
Weighing all these considerations, the interests of justice require that time for filing iCare’s Notice of Opposition be extended to 27 September 2021. We grant that extension.
FRESH EVIDENCE
As indicated, both parties seek to rely on (different) reports of Dr Berry which were issued after the Medical Assessment Certificate of Dr Beer, and which relate to the worker’s permanent impairment after assessment by Dr Beer. Section 328(3) of the 1998 Act does not preclude either party giving that evidence on appeal, and we take those reports into account.
Without objection, the appellant worker also seeks to rely on his statement of 21 May 2021. That statement goes to the deterioration of his condition since Dr Beer’s assessment. He also seeks to rely on clinical notes of ten consultations with his treating general practitioners, Dr Moawad and Dr Ali, and four radiological reports, all of which came into existence after Dr Beer’s assessment.
Section 328(3) does not preclude the appellant from relying on all that evidence, and we take it into account.
ISSUE ON APPEAL - DETERIORATION RESULTING IN INCREASE OF PERMANENT IMPAIRMENT
Appellant
In summary, the appellant worker submits as follows.
(a) The relevant body parts in respect of which the worker must prove deterioration are those assessed by Dr Beer - the lumbar spine, cervical spine and right knee.
(b) In his report of 16 November 2016, Dr Berry took a history of increasing pain in all three body parts, and assessed (relevantly) a 16% whole person impairment (7% lumbar spine, 5% cervical spine, 4% right knee).
(c) Clinical notes of 10 consultations with Dr Moawad and Dr Ali between 24 November 2014 and 30 July 2019 record continuing pain in the back, neck and right knee.
(d) With respect to the lumbar spine, radiology results in 2018 (which we assume is a reference to the CT scan of 3 April 2018) show minor disc bulges and mild osteoarthritis.
(e) CT scans of the cervical spine dated 22 July 2019 and 21 February 2021 show that intervertebral disc spaces from C2 to C7 have narrowed since Dr Beer’s assessment.
(f) Radiological results of 2020 (not identified by the appellant, but presumably relating to the shoulder) demonstrate a ‘full thickness tear of the subscapularis tendon with an element of impingement’.
(g) In his statement of 21 May 2021, the appellant gives evidence of increasing awards of permanent impairment compensation from 2005 to 2020 - or an agreement, in the case of the complying agreement dated 26 May 2011 - under the Table of Disabilities for permanent impairment of the back and neck, including an award of permanent impairment compensation in respect of the left shoulder in 2020:
Date
Back
Neck
Right leg at or above the knee
Left arm at or above the elbow
15 Jul 05
7.2%
9%
26 May 11 (complying agreement)
10%
Further 11%
6 Dec 12
Further 1.8%
Further 4.5%
22 Apr 20
Further 5%
10%
(h) His statement also evidences an increase in pain in the neck, back and right knee over the years, and causing trouble with sleeping. In particular, he says that back pain now radiates to the buttocks and legs, and neck pain radiates into the shoulders, with neck stiffness.
Respondent
In summary, the respondent employer submits as follows.
(a) In his report of 18 January 2017, Dr Berry explained that, at examination on 15 November 2016, he had assessed the following permanent impairment under the Table of Disabilities:
i.10% permanent impairment of the back;
ii.10% permanent impairment of the neck;
iii.10% loss of efficient use of the left arm at or above the elbow, and
iv.15% loss of efficient use of the right leg at or above the knee.
(b) In his report of 27 April 2018, he explained that his assessment of the left arm had included permanent impairment of the shoulder resulting from injury on 10 May 2000. He called it a ‘consequential injury’. We interpret that to mean a consequential condition resulting from injury to another part of the body on 10 May 2000.
(c) On 15 November 2019, Dr Berry re-examined the worker. In his report of 20 November 2019, he opined there had been a deterioration of the condition of the left arm, left shoulder and lower back ‘since he last received lump sum compensation’. He does not specify a date, but his meaning can be gleaned from the preceding paragraph, in which he refers to a deterioration in the condition of the left arm and back since his last examination. We take that to mean his examination of 15 November 2016.
(d) In a supplementary report of 2 June 2020, Dr Berry indicated as follows.
i.Given the different bases for assessment under the Table of Disabilities and by way of whole person impairment, there is no mathematical formula by which an assessment using one method can be converted to an assessment using the other.
ii.On 15 November 2019 he had assessed a 15% whole person impairment (7% lumbar spine, 0% cervical spine, 4% left upper extremity - shoulder; 4% right lower extremity - knee), without making any deductions in respect of a pre-existing condition.
(e) Dr Berry’s assessment of 4% with respect to the left shoulder cannot be relied on by the worker on appeal, as that body part was not assessed by Dr Berry.
(f) It follows that, for the purposes of comparison with Dr Beer’s assessment, on 15 November 2019 Dr Berry relevantly assessed an 11% whole person impairment (7% lumbar spine, 0% cervical spine, 4% right lower extremity - knee).
(g) As that assessment is less than the total 12% whole person impairment assessed by Dr Beer, there is no evidence that any deterioration has caused an increase in whole person impairment.
Further Submissions
The Panel invited the parties to provide further submissions on the effect of Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 322; Riverina Wines v Registrar of the Workers Compensation Commission [2007] NSWCA 149; O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, and Russo v Work Zone Pty Ltd [2021] NSWPIC 355.
Written submissions on the effect of those decisions were filed by both parties, and have been taken into account.
In brief summary, the applicant submitted that it would be against the interests of justice to ignore Dr Berry’s assessment of the left upper extremity in comparing his overall assessment with that of Dr Beer, because:
(a) O’Callaghan and Riverina Wines are distinguishable on their facts,
(b) Russo does not correctly interpret the legislation, and
(c) the appellant made a claim in respect of the left lower extremity, which had been disputed and was the subject of an agreed resolution in the form of an award by the Commission on 22 April 2020.
The respondent submitted, in brief summary, that the authorities - particularly Russo - establish that, for the purposes of comparison between assessments, no body part may be taken into account that was not assessed in the Medical Assessment Certificate from which the appeal is brought.
The respondent does not submit that the Panel lacks jurisdiction to assess the left shoulder because no claim for compensation has been made or determined as a result of a consequential condition of that limb. No such submission available, because:
(a) in proceedings 1292/20, Mr Merhebi alleged a consequential condition of the left shoulder as a result of favouring his injured right arm, relying on the opinions expressed by Dr Berry as to causation in his reports of 8 August 2017 and 20 November 2019;
(b) by a Certificate of Determination dated 22 April 2020, the Commission awarded compensation in respect of a 10% loss of efficient use of the left arm at or above the elbow, which accorded with the opinions as to causation referred to above, and with the assessment of Dr Berry dated 18 January 2017, though not with his later assessment of 20 November 2019, and
(c) that Certificate of Determination is binding on the parties, at least to the extent that it necessarily implies a finding that a condition of the left shoulder resulted from injury on 10 May 2000.
FINDINGS AND REASONS
The appellant worker relies on the ground of appeal specified in s 327(3)(a), which requires proof of a ‘deterioration of the worker’s condition that results in an increase in the degree of permanent impairment’. There are two limbs to that requirement:
(a) that there has been a deterioration in the condition of a worker since the assessment the subject of appeal, and
(b) that the deterioration has resulted in an increase in the degree of permanent impairment.
Each limb is an issue of fact for determination by the Appeal Panel. It would be appropriate for the Panel to determine those issues of fact by referring the worker for examination by one of its suitably qualified members, if there is evidence that both limbs are satisfied.
The records of 10 consultations with general practitioners from 2014 to 2019 do provide evidence of ongoing complaints of symptoms in various body parts assessed by Dr Beer, but do not provide a comparison of Mr Merhebi’s condition with that assessed by Dr Beer.
The radiological reports relied on are studies reported on 26 November 2014, 3 April 2018, 22 July 2019 and 23 February 2021. In particular, the studies in 2018 and 2019 showed further deterioration in the cervical and lumbar spine. The ultrasound study of the left shoulder on 18 November 2015 indicated a complete tear of the subscapularis tendon but this was not confirmed later in the study of 20 May 2016. We accept that the radiological reports evidence a deterioration in the condition of the cervical and lumbar spine.
In his report of 20 November 2019, Dr Berry expressed the view that, since 2016, there had been a deterioration of the condition of the worker’s left upper extremity and lower back. Having regard to his findings on examination of tenderness from L2 to S1, we are satisfied that his reference to the lower back was a reference to the lumbar spine. There is no evidence to contradict Dr Berry’s opinion. There is also no evidence, and no submission to the effect, that the condition of the lumbar spine improved in the interval between Dr Beer’s assessment in 2014 and Dr Berry’s assessment in 2016. We accept Dr Berry’s opinion in 2019 as prima facie evidence of deterioration of the lumbar spine since the assessment of Dr Beer.
With respect to the left shoulder, Dr Berry’s opinion, expressed in his report of 20 November 2019, that there had been a deterioration since his examination in 2016, is prima facie evidence of that fact. There is likewise no evidence of an improvement in the condition of the left shoulder between Dr Beer’s 2014 assessment and Dr Berry’s assessment in 2016, notwithstanding the difference between the 2015 and 2016 ultrasound studies. We accept Dr Berry’s opinion as prima facie evidence of deterioration in the condition of the left shoulder since Dr Beer’s assessment.
The respondent submits that, because the left shoulder was neither assessed by Dr Berry nor referred to him for assessment, it follows that the condition of that body part must be excluded for the purposes of determining whether there has been a deterioration in the worker’s condition and whether that deterioration has resulted in an increase in permanent impairment.
The statutory function of an Approved Medical Specialist or Medical Assessor is to give a certificate as to the matters referred for assessment: s 325, 1998 Act; Aircons at [20]. The only body systems referred to Dr Beer were the lumbar spine, cervical spine and right lower extremity. He correctly confined his assessment to those body systems. He did not assess the left shoulder, as it was not referred for assessment. It was not and could not be so referred, because no consequential condition of the left shoulder was alleged in those proceedings.
A consequential condition of the left shoulder was subsequently alleged in proceedings 1292/20 in the Workers Compensation Commission. An award of compensation was made by consent in respect of a 10% loss of efficient use of the left arm at or above the elbow. That award necessarily implied a finding that a consequential condition of the left shoulder resulted from injury. As indicated, that finding is binding on the parties. There can be, and is, no dispute in these proceedings that a condition of the left shoulder resulted from injury. There is no evidence before us that there was permanent impairment referrable to the left shoulder until it was assessed by Dr Berry in his report of 20 November 2019, notwithstanding the history taken by Dr Berry of an injection in the left shoulder six years earlier.
Section 327(3) prescribes the only four available grounds for appeal from a Medical Assessment Certificate: (a) deterioration in the worker’s condition resulting in an increase in permanent impairment resulting from injury; (b) availability of additional evidence in certain circumstances; (c) assessment on the basis of incorrect criteria, and (d) demonstrable error.
Grounds (c) and (d) require the demonstration of error of one sort or another in the Medical Assessment Certificate. This appeal is brought on ground (a). That ground does not require the demonstration of error. On the contrary, it assumes the correctness of the Medical Assessment Certificate, and requires proof that the situation has changed in the manner set out in the subsection since the Medical Assessment Certificate.
As Campbell JA (with whom Hodgson JA agreed) observed in Riverina Wines at [94]:
“‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an Approved Medical Specialist certified in a MAC is conclusively presumed to be correct.”
Handley JA (dissenting in the result, though not on this point) added at [122]:
“The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
The requirement for proof that the worker’s condition has deteriorated itself requires evidence in addition to that which was before the original assessor. By necessity, such an appeal is based on fresh evidence.
An appeal requiring demonstration of error in the original assessment must of its nature be confined to considerations of the body systems assessed by the Approved Medical Specialist - for instance, a consideration as to whether the body systems referred for assessment were assessed correctly or at all. However, where an appeal is brought on the ground of deterioration, it seems to us that the consideration of the Appeal Panel is not so constrained.
Where, as here, the Commission has determined, after the Medical Assessment Certificate, that a pathological condition of a body system not originally referred for assessment has resulted from injury, s 327 does not, in terms, constrain the Appeal Panel to ignore that body system in determining whether there has been deterioration in the worker’s condition resulting in an increase in permanent impairment.
It might be different if there were no such prior determination by the Commission, and the existence of the consequential condition was disputed. That was the case in O’Callaghan and Russo, considered below. It is not for a Medical Assessor or the Appeal Panel to determine such disputes, but for the Commission: State of New South Wales v Bishop [2014] NSWCA 354. Here, the Commission itself has determined, at least by necessary implication, that a condition of the left shoulder was caused by injury to the right shoulder.
However, a mere determination by the Commission that a condition of the left shoulder has resulted from injury to the right shoulder does not compel the conclusion that the current permanent impairment of the left shoulder results from injury to the right. That is a matter for assessment by the Appeal Panel itself, if it decides that one of its members should examine the worker.
Where, as here, the Commission has determined that a consequential condition of a body part not previously assessed has resulted from injury, the view that the Appeal Panel may take that condition into account in determining whether the two limbs of s 327(3)(a) are satisfied is consistent with the purpose of s 327(a), which is to ensure that a worker is compensated for a deterioration in his or her condition which results from injury, and which results in an increase the degree of impairment of the whole person.
It is not inconsistent with the express provisions of s 327(3)(a). Nor is it inconsistent with s 327(1), which provides that an appeal may be brought ‘only in respect of a matter which is appealable under this section’. Section 327(2) provides that a matter is appealable if ‘it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct’. The degree of permanent impairment resulting from injury assessed in a Medical Assessment Certificate is conclusively presumed to be correct: s 326(1)(a). This appeal is brought in respect of such a matter - namely, the degree of permanent impairment resulting from injury assessed by Dr Beer, notwithstanding the fact that he did not assess the left lower extremity.
Nor is it inconsistent with s 322A of the 1998 Act, or s 66(1A) of the Workers Compensation Act 1987, for the reasons expressed in O’Callaghan at [89] and [95]: “Different considerations would apply if Ms O’Callaghan had sought to appeal under s 327 because of a deterioration in the condition of her lumbar spine.”
In terms of its outcome, O’Callagan may be distinguished on its facts. In that case, the worker claimed permanent impairment compensation as a result of injury to her lumbar spine and coccyx. An Approved Medical Specialist assessed a 10% whole person impairment. The Commission issued a Certificate of Determination giving effect to that assessment. The worker appealed against the Medical Assessment Certificate on the basis of deterioration, relying on the opinion of Dr Bodel who assessed an additional 5% whole person impairment in respect of the cervical spine. No claim had been made for whole person impairment compensation in respect of the cervical spine. Injury to the cervical spine was disputed, and that issue had not been determined. The appeal could not proceed unless the Commission’s certificate of determination was set aside. The worker therefore withdrew her appeal and applied to the Commission to reconsider and set aside its certificate of determination. An arbitrator refused the application, and the worker appealed to Deputy President Roche.
In dismissing the appeal, he observed at [93]:
“‘Deterioration’, being ‘an inherently relational concept’, operates on or with respect to the deterioration of the degree of impairment of ‘a matter’ as to which the assessment of an AMS, certified in the MAC, is conclusively presumed to be correct (s 327(2)). As Dr Ho [the Approved Medical Specialist] did not assess Ms O’Callaghan’s cervical spine, he provided no assessment of any ‘matter’ with respect to it that is conclusively presumed to be correct and no question of a deterioration in that condition arises in s 327(3)(a). As it was not assessed, it is not ‘a matter’ that is appealable under s 327(1)).”
As indicated, the learned Deputy President was not there considering an appeal from a Medical Assessment Certificate where, as here, the Commission had determined that there was a consequential condition of the body system concerned, resulting from injury. On the contrary, injury to the cervical spine in that case was disputed.
He ultimately dismissed the appeal before him on the basis that the monetary thresholds in s 352(3) of the 1998 Act were not met, so that there was no right of appeal. It follows that the above remarks in O’Callagan were expressed obiter.
Russo followed O’Callaghan. Mr Russo had been awarded compensation by the Commission in respect of an 11% whole person impairment (left upper extremity - hand), in accordance with the assessment of an Approved Medical Specialist. He applied for the Certificate of Determination to be set aside in order to pursue an appeal against the Medical Assessment Certificate on the ground of deterioration, relying on a report that he had also suffered a consequential condition of the right upper extremity resulting in 8% whole person impairment with respect to that limb. That there was a consequential condition of the right upper extremity was in dispute. In Russo, unlike the situation in this case, the Commission had not determined the issue as to whether there was a consequential condition of the relevant body part – in that case, of the right upper extremity. Given the similarities between the facts in Russo and those in O’Callaghan, the learned Member followed O’Callaghan and dismissed the worker’s application.
Those similarities, however, do not apply in the case of Mr Merhebi, because there is no dispute that he suffers from a consequential condition of his left shoulder. On the contrary, that issue has been determined by the Commission, because it has been the subject of a claim for compensation, and an award of permanent impairment compensation has been made.
For these reasons, we consider that it is appropriate for the Panel to take into account the evidence of Dr Berry that, when he assessed Mr Merhebi in 2019, there had been a deterioration in the condition of his lower back and left shoulder since he was last assessed in 2016. As indicated, there is no evidence that the condition of either body part improved between Dr Beer’s assessment in 2014 and Dr Berry’s assessment in 2016. In our view, Dr Berry’s assessment of 2019 is evidence that there had been a deterioration in the condition of both body parts since Dr Beer’s assessment.
We turn to consider whether there is evidence that a deterioration in the worker’s condition has resulted in an increase in the degree of permanent impairment.
In 2014, Dr Beer assessed a 12% whole person impairment (6% lumbar spine, 2% cervical spine, 4% right knee). For the purposes of comparison, it is appropriate to have regard to Dr Berry’s assessment of 2019, rather than his assessment of 2016, because the former has superseded the latter. In 2019 Dr Berry assessed a 15% whole person impairment (7% lumbar spine, 0% cervical spine, 4% left upper extremity - shoulder; 4% right lower extremity - knee). Dr Berry’s total assessment of whole person impairment exceeds that of Dr Beer.
It does so only when Dr Berry’s assessment of the left shoulder is taken into account. For the reasons already given, it is incumbent on the Panel to take the condition of the left shoulder into account. Taking it into account, Dr Berry’s assessment of 15% whole person impairment is evidence that the second limb of s 327(3)(a) is satisfied – ie, that a deterioration in the worker’s condition has resulted in an increase in permanent impairment.
It was not submitted that the result of the comparison is affected by the fact that Dr Beer made deductions in his assessment of the lumbar and cervical spine for pre-existing conditions, whereas Dr Berry did not. We do not consider that it is.
We do not suggest that an Appeal Panel may only examine a worker if there is evidence that both limbs of s 327(3)(a) are satisfied. In this case, there is such evidence before us. However, it may be sufficient for a worker to provide no more than evidence of a deterioration in his condition, in order for an Appeal Panel to proceed to examination for the purpose of determining whether both limbs of the section have been satisfied: ie, that there has been a deterioration which has resulted in an increase in permanent impairment. As it was not argued in this appeal, it is unnecessary for us to express a view.
Being satisfied that there was evidence of a deterioration in the worker’s condition resulting in an increase in the degree of permanent impairment resulting from injury, the Panel referred the worker for assessment to one of its members, Dr Ashwell, who examined him on 19 July 2022. The examination was not confined to the left shoulder and back, because:
(a) neither party submitted that the power of the Panel was so confined, and
(b) in any event, s 327(3)(a) speaks of a deterioration in the ‘condition of a worker’ resulting in an increase in the degree of permanent impairment, rather than in the condition of particular body parts in respect of which there is evidence, prior to examination, of deterioration.
Report of Medical Assessor Dr Ashwell
Dr Ashwell’s report and assessment follows.
“Mr Abdul Merhebi attended unaccompanied. Mr Bassam Monaykel (CPNOEJ06Z), an official interpreter, was present for the entire consultation from 11.35am to 1pm on 19 July 2022.
1. The workers medical history, and where it differs from previous records
The histories taken in the previous MAC by Dr John Beer and reports of Dr John Beer and Dr N Berry were confirmed by Mr Merhebi and nothing further was added.
He stated he was a machine operator and commenced work in 1997. His injury occurred in December 1999 when he slipped and fell onto a concrete floor wet with soapy water. He was not able to return to work so was put off work in May 2000. He believes he fell onto his back and left elbow even though the reports and x-rays suggest it was the right elbow. He twisted his right knee and ankle and hit his left shin under the machine causing a cut. He states his left shoulder was sore shortly after the work injury and his neck a few months later. The right knee required surgery and had ongoing pain and cracking. He had four injections into each shoulder but it was mostly his left shoulder that worried him.
2. Additional history since the original Medical Certificate was performed
The statements of Mr Abdul Merhebi dated 28 April 2017 and 5 May 2021 were noted. He claimed worsening of pain in his neck, back, right knee and leg, and his left shoulder and left elbow.
He denied any further injury. He has not had any further surgery.
He is presently under the care of Dr Ahmed Ali, his general practitioner.
His medical problems included stomach upset, cramps and a myocardial infarction in 2011. He had covid19 infection in March 2022 and then developed chest problems with a right sided pulmonary embolism. He had ongoing shortness of breath and required anti-coagulant medication and an inhaler. His activities are quite restricted due to his respiratory condition.
3. Present symptoms
He had constant pain in his neck with occasional headaches. He had occasional numbness in his left hand. He had difficulty sleeping due to his neck pain and wakes two to three times during the night. He used a wave pillow.
His left shoulder had intermittent pain and he was unable to sleep on his left side. He was unable to reach high with his left arm but can with his right. He had developed a prominent left clavicle. He had soreness at the back of the left elbow.
He had constant pain in his lumbar spine area from L1 to the coccyx and radiating to the left buttock. There was no paraesthesia in his lower limbs.
He had intermittent pain over the outer right hip radiating down to his knee. There was no swelling in his knee. It occasionally gave way so he used a walking stick. His walking distance was limited due to shortness of breath but with his knee he stated he could walk for ten minutes. He was observed walking but had difficulty with less than 100 metres and walked slowly. He was unable to stand for any time and always held onto furniture. He needed support to get out of a chair.
He had no problem with the scars on his right knee and left shin. There were no ankle symptoms. He had intermittent pain at the back of his right heel.
At home he required assistance from his wife with showering and dressing. He was able to toilet himself and used a handrail. He was unable to do any house work or yard work. He used to enjoy vegetable growing but was now unable to manage this activity. He was unable to do any recreation or social activities. He occasionally went for a short walk about twice a week. During the day he mostly sat and read or went for a short walk in his yard and occasionally down to the corner.
4. Present treatment
He presently takes tablets of Moxicam, Aspirin, Propanolol, Eliquis, and Lipidil. He also used a cortisone inhaler.
He was not attending physiotherapy at present and has not done so since late 2021. He had a new referral from his GP.
5. Findings on clinical examination.
All movements were conducted in an active manner by Mr Merhebi and he was advised to notify me of any increase in discomfort whereupon movement would be discontinued. Joint movements were measured using a goniometer and recorded.
His height was 176cm and weight 71kg. He walked slowly and with a limp, using a stick in his left hand to support his right knee. He had shortness of breath on exertion and at rest. He was unable to walk on his heels and toes. He was unable to one-leg stand or squat. He required assistance with un-dressing and dressing due to his right knee symptoms but could get on and off the examining couch himself.
There was a small pigmented scar on his left shin and a right knee medial surgical scar.
Cervical Spine: There was normal cervical posture but tenderness either side. There was muscle guarding and asymmetrical loss of movement with restricted rotation to the right and lateral flexion to the left. Other movements were mildly restricted. There was no neurological deficit in his upper limbs with normal and equal reflexes, normal sensation and power.
Lumbar Spine: There was a mild thoracic scoliosis with no tenderness and symmetrical rotation to either side. The lumbar spine had loss of the lumbar lordosis and tenderness in the upper part. There was overall reduced movement but asymmetry with almost complete loss of extension and muscle guarding. Straight leg raising was 60 degrees either side with no nerve root tension. There was no neurological deficit in his lower limbs with normal and equal reflexes, normal sensation and power. The soles of his feet were sensitive to touch.
Right lower extremity: He had equal leg length. His thighs were equal circumference when measured ten centimetres above the patella. He had equal calf circumference at the maximal point. Both hips had full and equal movement. There was normal lower limb alignment with 5 degrees valgus at either knee. The right knee had tenderness on the medial side with a scar and patello-femoral crepitus. The right knee movement was difficult to determine as he repeatedly contracted his quadriceps but after repeated examination and observation at other times, movement was possible from full extension to 85 degrees flexion. The left knee had full extension and flexion to 120 degrees. There was no flexion contracture. Both knees were stable and with no effusion. The right patello-femoral joint was stable. The ankles and feet had full movement. There was tenderness over the back of the right heel calcaneus but no deformity and an intact achilles tendon.
Left upper extremity: He was right hand dominant and had equal forearm and upper arm circumference. The right shoulder had full movement but the left was restricted. The left flexion was to 110 degrees and extension to 50 degrees. Abduction was to 100 degrees and adduction to 40 degrees, external rotation to 80 degrees and internal to 40 degrees. There was no muscle wasting and no winging of the scapula and negative impingement sign. There was tenderness at the front of the left shoulder. There was normal power of external rotation, abduction and adduction. Both elbows and wrists were aligned and had full movement. The left elbow was tender over the point of the olecranon.
After the examination he was asked if it caused any increase in symptoms. He stated he had only slightly increased pain but was mostly breathless and tired.
6. Results of any additional investigations since the original Medical Assessment
He had not had any further investigations since the last reported in the MAP brief.
I reviewed the following x-rays which were available today:
·30/11/2010 X-ray of the lumbar spine showed multi-level minor degenerative change and disc disease.
·2/2/2015 CT cervical spine showed multi-level degenerative disc disease from C2 to C7 with osteophytes and narrowing. There was no soft tissue impingement or disc protrusion.
·21/8/2015 X-ray of left shoulder showed mild osteoarthritis of the gleno-humeral and acromio-clavicular joints. The clavicle was not deformed or fractured.
·5/2/2018 X-ray of both shoulders showed mild osteoarthritis and minor spiking of the glenoid edge. The thoracic spine was reported as showing mild scoliosis.
·3/4/2018 CT lumbar spine showed multi-level degenerative disc disease but no nerve root compression. There was mild osteoarthritis of the L4/5 facets and narrowing of L2/3 and L 4/5 disc spaces.
The studies of 23/2/2021, 23/7/2019 and 15/8/2018 were not available. There were no x-rays of the knees available.
7. Opinion and WPI assessment
Cervical spine assessed as DRE 2 with asymmetrical loss of movement and guarding but no evidence of radiculopathy. There were insufficient criteria to satisfy DRE 3. Using AMA 5 Page 392 Table 15.5, this equates to 5% WPI.
Lumbar spine assessed as DRE 2 with asymmetrical loss of movement and guarding but no evidence of radiculopathy. There were insufficient criteria to satisfy DRE 3. There was addition of 3% for restriction of self-care, home and leisure activities. Using AMA 5 Page 384 Table 15.3, this equates to 8% WPI.
Right lower extremity (knee) was assessed on range of movement as providing the greater figure and cannot be combined with DBE. Using AMA 5 Page 537 Table 17.10 equates to 4% WPI.
Left upper extremity (shoulder) is best assessed on range of movement using AMA 5 Page 476 to 479 Figures 16.40, 16.43 and 16.46 and equates to 12% UEI or 7% WPI.
8. Deductions for pre-existing conditions
In making my assessment, I must consider whether any proportion of the impairment assessed today is due to a pre-existing condition and, if so, what proportion. To determine that a proportion of impairment is due to a pre-existing condition, I must be satisfied that, but for the pre-existing condition, the impairment would be less than it is.
There is no history of symptoms, or of radiological studies of the cervical or lumbar spine areas, prior to injury on 10 May 2000. The radiological studies after that date did show multi-level degenerative disc disease, but no disc protrusion or nerve root impingement in either the cervical or lumbar spine. On reviewing all the reported radiological studies of the cervical and lumbar spine, including the more recent ones, it is apparent that the pathology is multi-level degenerative disc disease. These are age-related degenerative changes which have been present for many years but became progressively worse since the workplace injury and subsequently over the ensuing years. Given the nature and extent of the degenerative disease demonstrated, I agree with Dr Beer that the degenerative conditions probably predated the injury, and that they are age-related.
These findings of widespread age-related degenerative change would probably account for some of the impairment assessed today in the neck and back, and it is my view that, but for those pre-existing conditions, the extent of impairment would be less than it is now.
However, in respect of the neck and back, it is difficult to determine accurately the proportion of impairment which is now due to the pre-existing condition. I am aware that, when he examined the worker in 2014, Dr Beer felt that the evidence then justified a 3/5ths deduction in respect of the neck: however, that was many years ago.
The reason stated by Dr Beer, in the MAC dated 16 July 2014, for the 3/5ths deduction of the cervical spine impairment was for ‘his disability with pain in his neck and significant age-related degenerative change involving the cervical spine’, and in particular the C6/7 disc space. Those specific findings are not evident now on re-examination, and the more recent radiological studies showed equivalent changes in most levels and regions of the spine. The further visits to the general practitioner are for medical conditions, increased left shoulder and back pain, lethargy and for prescriptions.
It is now difficult to quantify the contribution accurately, and I cannot do so. In my view, a deduction of 1/10th is not at odds with the available evidence in respect of the back or neck. For all those reasons, I consider a 1/10th deduction to be appropriate for each area of the spine.
No deduction is appropriate in respect of the left shoulder and right knee, because mild degenerative change of the kind demonstrated by the radiological studies would not account for any appreciable loss of movement and therefore of impairment.”
The Panel adopts the reasoning and assessment of Medical Assessor Dr Ashwell.
The Medical Assessment Certificate of Dr Beer is set aside and replaced with the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received on or before 1 January 2002
Matter Number: | 1829/14 |
Applicant: | Abdul Merhebi |
Respondent: | Asahi Beverages Australia (Formerly known as P&N Beverages Australia Pty Ltd and prior to that known as Bev Pak Aust 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 Dr Beer and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 10.5.2000 | Pages 24 – 31 Chapter 4 | Page 392 Chapter 15.6 Table 15-5 DRE II = 5% | 5% | 1/10th | 5% |
| Lumbar spine | 10.5.2000 | Pages 24 – 31 Chapter 4 | Page 384 Chapter 15.4 Table 15-3 DRE II = 5% ADL = 2% | 8% | 1/10th | 7% |
| Right lower extremity (knee) | 10.5.2000 | Pages 13 – 24 Chapter 3 | Page 537 Chapter 17 Table 17-10 | 4% | nil | 4% |
| Left upper extremity (shoulder) | 10.5.2000 | Pages 10 – 13 Chapter 2 | Page 476 to 479, Chapter 16. Fig 16.40, 16.43 and 16.46 12% UEI | 7% | nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 21% | |||||
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