Mohseni v Sharifpour

DETERMINATION OF APPEAL PANEL
CITATION:	Mohseni v Sharifpour [2022] NSWPICMP 438
APPELLANT:	Gholam Mohseni
RESPONDENT:	Abadollah Sharifpour
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	2 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal on the ground of deterioration of the worker’s condition that resulted in an increase in the degree of permanent impairment; Skates v Hills Industries limited considered and applied; Panel satisfied evidence of deterioration in lumbar spine and cervical spine; Held – worker re-examined and Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 February 2022 Gholam Mohseni (Mr Mohseni) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Breit, a Medical Assessor (MA), who, as an Approved Medical Specialist (AMS) in the Workers Compensation Commission (WCC), issued a Medical Assessment Certificate (MAC) on
22 November 2005. For convenience, Dr Breit will be referred to as “the AMS” in this decision. Mr Mohseni says that his condition has deteriorated since the MA examined him.
The respondent to the appeal is Abadollah Sharifpour (the respondent).
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment.
On 8 March 2022 the President’s delegate was satisfied that, on the face of the application, the grounds of appeal under s 327 (3) (a) were made has been made out and referred the matter to this Appeal Panel for determination. 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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Mohseni sustained injuries to his head, back, neck, both shoulders, arms and wrists on
4 July 2002 in the course of his employment as an apprentice painter, when he fell off a scaffold.
Mr Mohseni commenced these proceedings in the WCC on 22 June 2005.
The matter was referred to the AMS on 11 October 2005 for assessment of whole person impairment (WPI) of the left upper extremity, right upper extremity, cervical spine and lumbar spine as a result of the injury on 4 July 2002.
The AMS examined Mr Mohseni on 22 November 2005 and assessed Mr Mohseni as having 0% WPI of the cervical spine, 0% WPI of the lumbar spine, 8% WPI of the right upper extremity and 4% WPI of the left upper extremity. The combined total assessment of impairment was certified as 12% WPI as at 22 November 2005.
In a Complying Agreement dated 16 March 2010, which was entered into in respect of the injury on 4 July 2002, the respondent agreed to pay Mr Mohseni $15,500 in respect of 12% WPI of the right upper extremity and the left upper extremity.
In a Complying Agreement dated 12 May 2014, which was entered into in respect of the injury on 4 July 2002, the respondent agreed to pay Mr Mohseni for a further 3% WPI in relation to the right shoulder and back. The agreement referred to the report of Dr Robert Drummond dated 11 March 2014. However, the Appeal Panel noted that Dr Drummond had in fact assessed 13% WPI in the right upper extremity and 1% WPI in the left upper extremity and made no assessment of the back.
In further proceedings in the WCC (Matter No 3689/2020) in relation to the injury on
4 July 2002, Arbitrator Moore issued the following orders:
“1.The applicant brings this claim as a Threshold dispute for work injury damages (Section 314 Workplace Injury Management & Workers Compensation Act 1998) resulting from injuries on 4 July 2002.
2. Following the arbitration hearing today, the parties were unable to reach any agreement principally because of the status of two prior Complying Agreements, but have agreed to the following:
a. The applicant was examined by AMS, Dr Breit, who issued a MAC on 22 November 2005.
b. He assessed a combined 12% WPI in respect of both upper extremities (wrists) and 0% WPI in respect of the claimed injuries to the cervical and lumbar spines.
c. Based on that MAC, the parties entered into a Complying Agreement dated 2 January 2010 in respect of a 12% WPI of both upper extremities.
d.Following that, the applicant was examined by Dr Conrad who issued a report dated 10 December 2013 and also by Dr Drummond who issued a report dated 11 March 2014.
e.In light of those reports, the parties entered into a second Complying Agreement dated 12 May 2014 in respect of 3% WPI for the ‘right shoulder and back.’
3. The issue in dispute is whether the combined assessments in the two Complying
Agreements reaches the relevant threshold for a claim for work injury damages.
4. Accordingly, the matter is referred back to Dr Breit who is requested to provide a further report addressing the issue referred to in paragraph 3 above.
5. The documents to be sent to Dr Breit are the two Complying Agreements, the reports of Dr Conrad and Dr Drummond referred to above and his original MAC.
6. On receipt of this report, the parties are at liberty to seek a further teleconference before me, if necessary, to address any outstanding issues.”
A general medical dispute was referred to the AMS, Dr Breit, for assessment of the following matter: “The issue in dispute is whether the combined assessments in the two Complying agreements reaches the relevant threshold for a claim for work injury damages”. The AMS, in a MAC dated 6 November 2020, summarised Mr Mohseni’s injuries as “Right intra-articular distal radial fracture, Left scapholunate ligament injury, neck pain and back pain with spondylosis and disc lesions”. In answer to the question put to him, the AMS stated that he could not answer the question with a straightforward yes or no and that the question in relation to the lumbar spine related to causation which he could not decide.
On 24 November 2020, the proceedings in Matter 3689/20 were discontinued.
In a Conciliation/Arbitration on 2 December 2021 Member Homan made the following directions:
“1. The matter is remitted to the President for determination as to whether a ground of appeal under ss 327(3)(a) and/or (b) has been made out pursuant to s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998.
2. The respondent has leave to file with the Registry the following Direction for Production, on or before 9 December 2021:

Name of Producer

Document name and/or type

Dr K Hamid

Clinical records

REASONS

The records of the applicant’s general practitioner are relevant and may materially assist in resolving the issues in dispute.
NOTATIONS:
A. The parties agree that the application in these proceedings is properly characterised as an application for appeal against the Medical Assessment Certificate issued by
Dr Robert Breit on 12 November 2005 under s 327 of the Workplace Injury Management and Workers Compensation Act 1998.
B. The parties agree that the Certificate of Determination – Consent Orders, dated
30 August 2006, recording the discontinuance of the Application is not a “determination by the Commission” for the purposes of s 327(7) of the Workplace Injury Management and Workers Compensation Act 1998.
C. The parties have agreed upon a timetable for further written submissions in respect of the application to appeal, subject to approval by the President’s delegate, as follows:
a. the applicant to serve and lodge written submissions on or before 23 December 2021;
b. the respondent to serve and lodge written submissions in reply on or before
31 January 2022.”

17.On 2 February 2022 the delegate of the President issued the following direction:
“The President directs that:
1. By 9 February 2022 the applicant lodge an Application to Appeal Against Medical Assessment (Form 10) via the Commission’s online portal, attaching all relevant submissions and evidence related to the application to appeal.
2. By 16 February 2022 the respondent lodge a Notice of Opposition to Appeal Against Medical Assessment (Form 10A) via the Commission’s online portal, attaching all relevant submissions and evidence.
Brief reasons
3. The applicant sought reconsideration of a Medical Assessment Certificate (MAC) issued by Dr Breit, an Approved Medical Specialist on 22 November 2005.
4. The matter proceeded to teleconference and on 2 December 2021 Member Homan issued a direction noting the agreement of the parties that the reconsideration application is properly characterised as an Application to Appeal under section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
5. Member Homan set down a timetable for the provision of written submissions in respect of the Application to Appeal. The parties have now provided those submissions.
6. Rule 129 of the Personal Injury Commission Rules 2021 and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes requires the lodgement of an Application in the approved form.
7. Rule 129(4) also provides a timetable for the lodgement of a reply. Given the respondent has already provided written submissions in response, the timetable provided in rule 129(4) is shortened in accordance with rule 69(2).
8. Accordingly, the above direction is made.”

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
Mr Mohseni requested that he be re-examined by a MA who is a member of the Appeal Panel.
The Panel issued a Preliminary Review Notice dated 5 April 2022 calling for the clinical notes of Mr Mohseni’s general practitioner, Dr K Hamid, to be produced. The Appeal Panel deferred further consideration of the matter until the clinical notes were produced.
No clinical notes were produced by Dr Hamid.
The Appeal Panel had a further preliminary review on 16 August 2022 and as a result of that review determined that it was necessary for Mr Mohseni to undergo a further medical examination because there was insufficient evidence on which to make a determination. The Appeal Panel directed the parties to advise the Commission within seven days whether the re-examination should be a re-examination of all body parts assessed by the AMS on
22 November 2005 or whether the re-examination should be restricted to the cervical spine and lumbar spine, those being the only body parts that Dr Giblin assessed as having deteriorated since the assessment by the AMS on 22 November 2005. Neither party responded to this direction.
On 20 October 2022, the Appeal Panel called for the production of a full copy of the report of Dr Giblin dated 10 December 2018 as page 4 was missing in the copy of the report filed with the Application to Appeal Against the Decision of a Medical Assessor. A full copy of
Dr Giblin’s report dated 10 December 2018 was served and filed on 21 October 2022.
The Appeal Panel directed the respondent to file any supplementary submissions in relation to the complete copy of Dr Giblin’s report of 10 December 2018 by 26 October 2022. On
28 October 2022, the respondent advised the Commission that no further submissions would be filed.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Bodel of the Appeal Panel conducted an examination of Mr Mohseni on
1 September 2022 and reported to the Appeal Panel.

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 admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
Both parties filed fresh evidence in this matter. The Appeal Panel noted that some of the documents filed with the submission of the parties had been filed with the Application to Resolve a Dispute and Reply and were already in evidence in this matter. It was unnecessary for the Appeal Panel to consider whether those documents and reports should be admitted as fresh evidence.
The appellant seeks to admit the following evidence:
(a)    statement of Mr Mohseni dated 15 October 2019;
(b)    report of Dr P Giblin dated 10 December 2018;
(c)    report of Dr N Smith dated 21 October 2008;
(d)    report of Dr J Linklater dated 28 October 2008;
(e)    report of Dr N Smith dated 11 August 2010;
(f)    report of Dr N Smith dated 29 May 2013;
(g)    report of Dr Kapoor (Western Imaging) dated 14 January 2012;
(h)    certificate of Centrelink dated 14 October 2018;
(i)    medical certificate of Dr Shinwari dated 5 October 2018;
(j)    report of Blacktown and Mt Druitt Imaging dated 16 November 2018, and
(k)    recurrence form employee - worker dated 14 November 2018.
The respondent seeks to admit the following evidence:
(a)    letter from McDonnell Schroder dated 31 August 2021;
(b)    Medical Assessment Certificate from Dr Breit dated 6 November 2020;
(c)    report of Dr Giblin dated 10 December 2018;
(d)    Certificate of Determination WCC dated 21 August 2021;
(e)    Certificate of Determination WCC dated 24 November 2021;
(f)    Complying agreement WCC dated 21 January 2010;
(g)    Complying agreement WCC dated 12 May 2014;
(h)    report of Dr Zacest dated 9 August 2005;
(i)    report of Dr Bhattacharyya dated 15 April 2003;
(j)    reports of Dr Drummond dated 11 December 2012 and 11 March 2014;
(k)    report of Dr Conrad dated 10 December 2013;
(l)    report of Dr Kafataris dated 16 December 2010;
(m)     section 74 notice CGU dated 30 May 2013;
(n)    Statement of Reasons Medical Appeal Panel dated 13 June 2006;
(o)    investigation report (surveillance) Verifact dated 24 November 2010;
(p)    MRI - Lumbar spine Castlereagh Imaging dated 7 July 2005;
(q)    X-ray/CT - Lumbosacral spine - Western Imaging Group dated 14 January 2012, and
(r)    MRI - Lumbosacral spine Blacktown Mt Druitt Imaging dated 16 November 2018.
The Appeal Panel noted that Mr Mohseni commenced these proceedings in the WCC on
22 June 2005 and that the AMS examined Mr Mohseni on 22 November 2005. The Appeal Panel accepted that, apart from the report of Dr Bhattachryya dated 15 April 2003, all of the documents listed above were not available to the particular party before the medical assessment and the documents could not reasonably have been obtained by the party before that medical assessment as they came into existence after the Application to Resolve a Dispute was filed or after the examination by the AMS. Further, the Appeal Panel was satisfied that these documents were probative to the issues to be determined in the appeal.
No submissions were made by the respondent in respect of the report of Dr Bhattachrya dated 15 April 2003. This report was a medico-legal report addressed to the respondent’s insurer which was not filed with the Reply. The Appeal Panel did not accept that this evidence was not available before the examination by the AMS and could not have been reasonably obtained.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a)    statement of Mr Mohseni dated 15 October 2019;
(b)    report from Dr P Giblin 10 dated December 2018;
(c)    Report from Dr N Smith dated 21 October 2008;
(d)    Report from Dr J Linklater dated 28 October 2008;
(e)    Report from Dr N Smith dated 11 August 2010;
(f)    Report from Dr N Smith dated 29 May 2013;
(g)    Report from Dr Kapoor (Western Imaging) dated 14 January 2012;
(h)    Certificate from Centrelink dated 14 October 2018;
(i)    medical certificate from Dr Shinwari dated 5 October 2018;
(j)    report from Blacktown and Mt Druitt Imaging dated 16 November 2018;
(k)    recurrence form employee - Worker dated 14 November 2018;
(l)    letter McDonnell Schroder dated 31 August 2021;
(m)     Medical Assessment Certificate from Dr Breit dated 6 November 2020;
(n)    report from Dr Giblin dated 10 December 2018;
(o)    Certificate of Determination WCC dated 21 August 2021;
(p)    Certificate of Determination WCC dated 24 November 2021;
(q)    Complying agreement WCC dated 21 January 2010;
(r)    Complying agreement WCC dated 12 May 2014;
(s)    report from Dr Zacest dated 9 August 2005;
(t)    reports from Dr Drummond dated 11 December 2012 and 11 March 2014;
(u)    report from Dr Conrad dated 10 December 2013;
(v)    report from Dr Kafataris dated 16 December 2010;
(w)   section 74 notice CGU dated 30 May 2013;
(x)    Statement of Reasons Medical Appeal Panel dated 13 June 2006;
(y)    investigation report from Verifact dated 24 November 2010;
(z)    MRI - lumbar spine Castlereagh Imaging dated 7 July 2005;
(aa)    X-ray/CT - lumbosacral spine Western Imaging Group dated 14 January 2012, and
(bb)    MRI - lumbosacral spine Blacktown Mt Druitt Imaging dated 16 November 2018.
The Appeal Panel determined that the following evidence should not be received on the appeal:
(a) report from Dr Bhattacharyya dated 15 April 2003.

Medical Assessment Certificate

The parts of the medical certificate given by the AMS that are relevant to the appeal are set out 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.
Mr Mohseni’s submissions include the following:
(a)    There was further relevant material and there had been a deterioration of
Mr Mohseni's condition that resulted in an increase in the degree of permanent impairment.
(b)    Mr Mohseni relied upon the opinion of Dr Peter Giblin who examined Mr Mohseni in December 2018. Mr Mohseni had accepted injuries to his lumbar spine, cervical spine and both wrists. Dr Giblin took a history that in 2005 Mr Mohseni's back pain had got worse and he went to Westmead Hospital where he was advised to have a spinal fusion. Dr Giblin found that Mr Mohseni now demonstrated the signs and symptoms for an assessment of DRE Category II in both the lumbar spine and the cervical spine. That assessment was evidence of a deterioration in respect of both the lumbar spine and the cervical spine.
(c)    In his statement dated 15 October 2019, Mr Mohseni said that following his assessment with the AMS, his neck, back and both arms deteriorated. He stated that he had a lot of pain in his back, neck and both shoulders.
(d)    In 2014, the respondent paid additional compensation in respect of the right shoulder and the back. The compensation was paid in reliance upon a report of Dr Drummond dated 11 March 2014. Dr Drummond had assessed a 14% WPI.
(e)    The evidence showed that there has been a deterioration in Mr Mohseni’s condition since 2005 which has resulted in a greater degree of impairment as assessed by Dr Giblin and Dr Drummond, and as was accepted to some degree by the respondent in 2014.
(f)    The respondent conceded that there had not been a determination of the previous dispute by the Commission. The respondent had not filed any material which established the circumstances in which the complying agreement was completed in 2010. What was clear from the face of the document is that the complying agreement was in resolution of a claim that was made on
21 January 2010 and this could not have been a resolution of the claim which was the subject of the assessment in 2005.
(g)    In Skates v Hills Industries Limited [2021] NSWCA 142, Basten JA held that the referral to an AMS was a referral to resolve a medical dispute. The jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 was not at large. The claim is made in respect of a specific injury which occurred in the course of employment on a specific date. The form for an Application to Resolve a Dispute required identification of the date of the injury, a description of the injury, a description of how the injury occurred and the injury details including the date of the compensation claim. His Honour considered that an appeal panel had been correct in concluding that the AMS' assessment was limited to the terms of the claim.
(h)    The Guidelines provided that a MA was to evaluate the current condition and should make no allowance for possible future deterioration (see 1.34 and 1.35). Thus, the medical dispute referred to the AMS in 2005 was a dispute about the degree of permanent impairment as at that time and in response to a claim made at that time.
(i)    The complying agreements in 2010 and 2014 were disputes about the degree of permanent impairment at the time that those claims were made which were in January 2010 and probably in 2014. Because they related to impairments at a different time and arise from different claims, they were not the same dispute as that which was the subject of the medical assessment certificate in 2005. It follows that neither of the complying agreements was in respect of the relevant dispute and neither agreement prevented the current appeal.
(j) Mr Mohseni seeks to commence a work injury damages action. The s 66 claim was resolved via a complying agreement dated May 2014.
(k)    The particulars pursuant to s 282 of the "the 1998 Act" were recorded in a letter addressed to the employer dated 7 May 2020 that was based upon an assessment of 17% WPI by Dr Giblin in a report dated 10 December 2018.
(l)    The current issue to be considered concerned whether Mr Mohseni’s condition had deteriorated since November 2005 (when he was assessed by the AMS) to the extent that the WPI resulting from his injury had increased to 15% or greater. Liability for cervical spine and lumbar spine was conceded by the respondent's inclusion in the referral to the AMS for assessment. The sole residual question was whether, since the AMS found no assessable impairment in respect of the spine in November 2005, there had been deterioration resulting in an increase of WPI resulting from injury to the four body parts that were subject of the AMS’ assessment.
(m) Mr Mohseni does not seek to make a further claim pursuant to s 66. In Maria Galea V Colomwise Nursery (NSW) Pty Ltd [2019] NSWWCC 362, Arbitrator Harris considered the right of a worker to proceed with an appeal pursuant to
s 327(3)(a) of the 1998 Act in circumstances of deterioration of her condition. Arbitrator Harris noted at [53] that "a claim for permanent impairment compensation is clearly distinct from a threshold claim". He noted at [109] that the worker "has clearly stated in her written submissions that she is not asserting a further entitlement to s 66". She was plainly proceeding with an appeal to secure an assessment for the purposes of a threshold dispute. That is the objective of Mr Mohseni.

The respondent’s submissions include the following:
(a) Mr Mohseni has not satisfied the threshold required by s 327(3)(a) of the 1998 Act, as the most recent medical evidence confirmed there had been no deterioration of his compensable injuries.
(b)    On 4 July 2002, Mr Mohseni sustained injuries to his wrists following a fall from scaffold. Mr Mohseni was compensated 14% WPI in respect of injuries to both wrists, by way of two complying agreements.
(c)    On 7 June 2005, Mr Mohseni alleged that he sustained a consequential injury to his back alighting from a bus. Injuries to the neck and back were disputed pursuant to a s 74 notice, dated 30 May 2013.
(d)    In 2020 Mr Mohseni commenced proceedings in the Commission in relation to the issue of extent of impairment (matter number 3689-20). A certificate of determination (COD), issued by consent, dated 21 August 2020 confirmed the proceedings were brought by way of a threshold dispute pursuant to s 314 of the 1998 Act. The COD noted the following history:
(i)the MAC dated 22 November 2005 assessed Mr Mohseni as having 12%WPI in respect of both wrists and 0% WPI for the cervical and lumbar spine;
(ii)a complying agreement was entered into dated 21 January 2010, in respect of 12% WPI for both wrists, and
(iii)following further examination, a second complying agreement was entered into, dated 12 May 2014, for 3% WPI for the right shoulder and back.
(e)    Contrary to the COD dated 21 August 2020, the compensation payable in respect of the 2014 Complying Agreement was in respect of the wrists, rather than the back and right shoulder.
(f)    Following the assessment of the AMS, a post assessment teleconference was held on 24 November 2020 before Arbitrator Moore. During the teleconference, Arbitrator Moore expressed views that it was clear from the material that
Mr Mohseni had been compensated in respect of 14% WPI. Mr Mohseni discontinued proceedings at this time.
(g)    Mr Mohseni submitted that there was further evidence that there had been a deterioration of his condition, which has resulted in an increase in the degree of impairment from that which was assessed in the MAC. He relied upon a report of Dr Drummond, dated 11 March 2014, and a report of Dr Giblin, dated
10 December 2018 and submitted these reports were evidence of a deterioration since the MAC.
(h)    There has not been a further deterioration of Mr Mohseni’s injuries assessed in the MAC of the AMS dated 22 November 2005.
(i)    The reports relied upon by Mr Mohseni were now three years and eight years old, respectively, and the most recent examination of Mr Mohseni, being the MAC of
6 November 2020, demonstrated that there had not been a further deterioration.
(j)    Mr Mohseni relied upon the report of Dr Giblin, dated 10 December 2018, in support of a deterioration of his injuries, however, Dr Giblin did not even perform a physical examination of the cervical and lumbar spine. The lack of clinical examination would not enable Dr Giblin to make an accurate assessment of WPI.
(k)    Any injury sustained to the lumbar spine, was a soft tissue only and has long since resolved and as such no deterioration has occurred. Dr Giblin, in his report dated 10 December 2018 made a “diagnosis of…soft tissue injury to his neck and back”. Dr Zacest, in his report dated 9 August 2005, noted that “Neurological examination was within normal limits”. Dr Gibson, in his report dated
11 September 2003 noted “He may have also sustained…soft tissue injuries of his lumbo-sacral spine”. Dr Gibson made no diagnosis of a cervical spine injury.
(l)    Mr Mohseni did not sustain an injury to the cervical spine. Alternatively, any injury sustained to the cervical spine has long since resolved, and as such no deterioration has occurred. The report of Dr Gibson contained no diagnosis of a cervical spine injury. Dr Drummond, in his report dated 11 December 2012 noted “Cervical spine: There is no apparent stiffness or pain accompanying cervical spine movement”. Dr Ian Edmunds in his reports dated 20 October 2004 and
8 November 2004 made no diagnosis and no assessment of either the lumbar spine or cervical spine and assessed impairment resulting only from the wrists. Dr Conrad, in his report dated 10 December 2013, reported virtually full movements of the cervical spine and made a 0% WPI assessment of the cervical spine.
(m)     Notwithstanding the assessed WPI in the MAC of 22 November 2005,
Mr Mohseni’s wrist injuries have completely resolved and there was no deterioration. In a report dated 11 December 2012, Dr Drummond noted “there has been complete recovery from the effects of the fractures to both wrists…objectively there is an almost full range of movement of the right wrist and a full range of pain free movement in both wrists”.
(n)    Any impairment suffered by Mr Mohseni now with respect to his cervical and lumber spine (noting the AMS made 0% WPI assessment of the cervical and lumbar spine) was not due to a deterioration of a compensable injury, but rather age related degeneration. Any assessable WPI of the cervical and lumbar spine would require a deduction of 100% pursuant to s 323 of the 1998 Act. In his report dated 11 December 2012, Dr Drummond concluded the ongoing symptoms in the lumbar spine were age related.
(o)    Furthermore, the cervical spine and lumbar spine remained in dispute, by way of a s 74 notice dated 30 May 2013, following an unrelated fall suffered by
Mr Mohseni. Any assessable impairment would require deductions pursuant to
s 323 of the 1998 Act for impairment that results from this incident.
(p)    In the MAC dated 6 November 2020, the AMS made the following comments and observations:
a. “Disrobed without difficulty…standing upright…was able to walk on heel and tip toes and he took quite small strides but the gait was otherwise normal…Testing the power of hip flexion, knee flexion and extension revealed such weakness that he should not be able to stand upright’”
b. “Was able to bring the neck up to a neutral position, but there was no extension, other movements were symmetrically restricted…however…there was greater degree of cervical rotation noted when he was dressing and looking for his shirt sleeve while dressing”.
c. “There was no external rotation bilaterally (of the shoulders) and when I attempted to passively range the shoulder, it was even less than the active range which is not consistent with organic pathology”.
d. “This gentleman’s presentation is of gross inconsistency…the degree of pain and disability is inconsistent with the mechanism, the passage of time and the available investigations”.
e. “MRI of 2018 showed a trivial disc bulge…He claims there are no subsequent injuries but I cannot reconcile that claim, his gross maximisation and the two year old MRI”.
f. “Given his presentation I would not be happy to accept the situation without a review of the practice notes…To my mind the question relates to causation with respect to the current lumbar spine complaints and whether it in fact relates to an injury 18 years ago”.
(q)    The AMS invoked paragraph 1.36 of the Guidelines and considered degree of inconsistency meant the range of movements could not be used to assess permanent impairment.
(r)    The MAC of 6 November 2020 was evidence of grossly inconsistent presentation. The purposes of the current proceedings are to establish whether a further deterioration has occurred, which would entitle Mr Mohseni to bring a claim for work injury damages. Mr Mohseni is feigning or exaggerating symptoms. The respondent relies upon the comments of the AMS in the MAC of
6 November 2020, as well as the report of Dr Kafataris dated 16 December 2010, the report of Dr Drummond dated 11 March 2014, and the surveillance report dated 24 November 2010, which demonstrated significantly greater function than reported in a medico-legal setting.
(s)    Based on the above inconsistencies of presentation a further re-examination by the Appeal Panel would not amount to a different finding to that of the AMS in the most recent MAC.
(t)    Mr Mohseni continued to rely upon evidence of Dr Giblin, which is now three years old and arguably not indicative of Mr Mohseni’s current presentation or functioning. Furthermore, Dr Giblin did not perform a clinical examination of the cervical or lumbar spine, and as such the recent evidence of the AMS in the MAC dated 6 November 2020 should be preferred.
(u)    The respondent relied upon the recent MAC of the AMS, dated 6 November 2020 as fresh evidence of the appellant’s presentation. This MAC demonstrated that Mr Mohseni’s presentation was of such gross inconsistency that an accurate assessment of impairment was not possible.
(v)    In the alternative, Mr Mohseni should be re-examined by a member of the Appeal Panel, and that these submissions and the relevant supporting documentation be provided to the examiner for their consideration

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 Medical Assessment Certificate

Under “History relating to the injury”, the AMS wrote:
“This gentleman was on scaffolding about three metres high and painting corners of a
ceiling. He was changing position when the scaffolding started to shake and be fell
backwards onto the ground. He put out bis arms to break the fall and to prevent his
head hitting. I am told he was knocked out. Transportation via ambulance was to
Hornsby Hospital and he was admitted under the care of Dr Ian Edmunds, an
orthopaedic surgeon. The left wrist was apparently put into a cast; the right required
manipulation and supplementary fixation with percutaneous wires. This gentleman
also states that he had a head injury.
Following this injury there have been complaints of headaches, back and neck pain.
Dr Edmunds was said to have managed this gentleman for four months, including the
removal of the wires and physiotherapy to the wrists was organised. Thereafter he was
returned to the care of his general practitioner with respect to the other complaints of
pain. He was seen by Dr Kam, a neurosurgeon, but can' t recall any specific
recommendations. This man had physiotherapy, hydrotherapy and a gym programme
through Rehab One.
I am told in June 2005 this man was walking on bis way to a computing course which
had been arranged by the Insurers when he claimed severe low back pain for which he
saw his GP. Apparently an ambulance was called and he was taken to Blacktown
Hospital and subsequently transferred to Westmead Hospital. The notes indicate that he was admitted under the care of Dr Dandie.”
Under the heading “present symptoms” on p 2 of the MAC, the AMS wrote:
“I am told the neck bothers this gentleman a lot and he can't get comfortable. Pain is
in the midline posteriorly and present most of the time. It is worse with movement
and he finds overhead activities difficult because looking up produces pressure on
his neck and back. There is a complaint of intermittent pins and needles involving
the hand and all the fingers of the right band. The site seems to be somewhat
variable from time to time.
There is a complaint of pain in the low back radiating into the sacrum. It is said to
be constant plus varying in intensity. There is also pain radiating into the hip, the
lateral aspect of the thighs and down to the ankles. Sometimes it goes into the
anteromedial aspect of the knees. There is also intermittent numbness involving
both legs entirely. I readdressed this matter in several different ways and he was
quite adamant that the entire leg in a stocking distribution would become numb.
This man states that he can't lift, bend or carry. He has a twenty-minute sitting
tolerance and can only walk five to twenty minutes. (This was thirty minutes into the history).”
Under the heading “Findings on physical examination” the AMS wrote:
“This man bad a lumbar support and a worn right wrist support which were both removed.
He stood straight and complained of tenderness at the base of the cervical spine over the region of the trapezius on both sides but there was 110 muscle spasm. Cervical flexion and extension were normal. Lateral flexion and rotation were both one-quarter normal, yet this man sat for thirty minutes conversing through the interpreter and rotating his head freely to the left to at least two thirds normal rotation
…
Axial compression of the skull produced a complaint of marked low back pain associated
with sagging of the knees. Lumbar spine movements were negligible in all directions and associated with Mr Mohseni holding his back and complaining of pain. There was global low back and paraspinal complaints of tenderness but no associated muscle spasm. He could sit on the examination couch comfortably and extend both legs, however straight leg raising was bilaterally 30° with no evidence of sciatic nerve root irritability. Pain was not relieved by hip and knee flexion.
Neurological examination was normal and there was no evidence of wasting.”
Under “Reasons for Assessment” the MA wrote:
“The lumbar spine presentation is quite extraordinary with multiple positive Waddell
signs. Furthermore, I find the sequence of events interesting. The injury occurred on 4
July 2002. There is then a CT scan on 6 August 2003, which shows an L4/5 disc bulge.
There is then another CT of the lumbar spine from 7 June 2005 that comments about a
lumbosacral disc protrusion with possible sequestrated fragment. I assume this
occurred at the presentation to Blacktown Hospital and led to the transfer to Westmead
Hospital. The subsequent MRl arranged by Dr Kam, a spinal surgeon, reports only a
small L4/5 disc lesion with degenerative change and there was certainly no evidence of a lumbosacral disc lesion as reported on the CT. This type of pathology may have
occurred as a result of the fall, but is often seen as a degenerative phenomenon in
asymptomatic patients. It is not such that the disc lesion could be used to infer
radiculopathy and the complaints of stocking sensory loss certainly don't indicate that
to be the case.
b. an explanation of my calculations in addition to the worksheet or actual calculations attached:
Attached please find copies of the worksheets with respect to both upper extremities. As I have already indicated, movement loss in the shoulders is secondary to the cervical spine and therefore not included as part of the upper extremity assessment.
The cervical spine findings of tenderness in trapezius and pain in that area with
shoulder movement. There is inconsistent loss of movement which is symmetrical when present. As such it is appropriate to assess this man under DRE Category 1.
As far as the lumbar spine is concerned, there was a display of positive Waddell's signs
and nothing more. The MRI-defined disc lesion, as I have already indicated, is not enough to change this man's classification from DRE Category 1.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Discussion

The concept of deteriorationwas considered by the Court of Appeal inRiverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission. [2007] NSWCA 149 Campbell JA said at [94]-[95]:
“Considering that submission involves, first, construing section 327(3)(a). ‘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 AMS certified in a MAC is conclusively presumed to be correct.
The conclusive presumption of correctness does not attach to every statement that is made in a MAC – in the present case, that conclusive presumption of correctness applies, under Part 18C Schedule 6 Clause 4(2) only to ‘the matters in dispute in any proceedings in respect of the claim for compensation concerned’. In the present case, that is the extent to which the Worker has suffered a percentage loss of efficient use of the right arm at or above the right elbow. Thus, in the present case, the relevant type of ‘deterioration’ for the ground in section 327(3)(a) is established if her present condition is such that she has a percentage loss of efficient use of the right arm at or above the right elbow of greater than 0%.”
Handley JA said at [122]:
“The relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. 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 Appeal Panel reviewed the evidence in this matter.
The AMS assessed a combined 12% WPI in respect of both upper extremities (wrists) and 0% WPI in respect of the claimed injuries to the cervical and lumbar spines in the MAC dated 22 November 2005. Based on that MAC, the parties entered into a Complying Agreement dated 2 January 2010 in respect of a 12% WPI of both upper extremities. Following that,
Mr Mohseni was examined by Dr Conrad, who issued a report dated 10 December 2013, and also by Dr Drummond, who issued a report dated 11 March 2014. In light of those reports, the parties entered into a second Complying Agreement dated 12 May 2014 in respect of 3% WPI for the “right shoulder and back”.
The Appeal Panel noted that 12% WPI combined with 3%WPI produced 15% WPI under the Combined Values Chart in AMA 5. However, the respondent has disputed that Mr Mohseni has reached 15% WPI.
The Appeal Panel noted that the AMS assessed Mr Mohseni’s WPI following an examination on 22 November 2005, that is, nearly 17 years ago. Although the AMS re-examined
Mr Mohseni on 2 November 2020 after a general medical dispute was referred to him, the AMS declined to assess whether the combined assessments in the two complying agreements reached the relevant threshold for a claim for work injury damages. The AMS stated that the question in relation to the lumbar spine related to causation which he could not decide.
Mr Mohseni submitted that there was evidence of deterioration relying on the report of
Dr Giblin dated 10 December 2018 as showing deterioration of the lumbar spine and cervical spine since the assessment in November 2005. There was, however, no evidence of deterioration of left upper extremity or right upper extremity identified by Dr Giblin.
Dr Giblin in a report dated 10 December 2018 wrote:
“He could actively rotate his chin 30º toward the right and 10º towards the left, two finger breadths off his chest and extension of his neck is a quarter normal. Lateral flexion was 30° towards the right and 30º towards the left.
In the erect position with his feet together, he could bend over and touch his knees and then had to climb back up his legs, lateral flexion was to the middle third of the thigh on either side and extension of his lumbar spine was no more than a fifth normal. He had a back brace on which was quite new and in good order and this was removed. He was tender in the midline at L4.
In the seated position he could fully extend both knees.
The deep tendon reflexes are preserved and equal in both knees, medial hamstrings and ankles.

Measured in the supine position	Right	Left
Calf circumference	37cm	37cm
Thigh circumference - measured at 10cm mark	44cm	43cm

There is no significant leg length discrepancy.
Passive range of motion of hips, knees, ankles and subtalar joints is normal.
The motor strength of the muscle groups supplied by L4, L5 and S1 around the feet and ankle are normal.
Straight leg raising was resisted at 50°bilaterally.”

Dr Giblin then wrote:
“Referring to AMA 5 Edition Guideline methodology, in relation to his lumbar spine injury, I assign him a DRE 2 category injury equating to 5% Whole Person Impairment with a further 2% WPI in terms of Activities of Daily Living.
In relation to his cervical spine injury, I assign him a DRE 2 category equating 5% Whole Person Impairment.
In the assessment of his right upper extremity (wrist), I assign him 4% Whole Person Impairment.
In the assessment of the left upper extremity (wrist), I assign him l % Whole Person Impairment.
I can find no rateable impairment in his right or left lower extremities.
Using the combined Tables this produces a total 17% Whole Person Impairment. This is permanent.”
Dr Hamid, treating general practitioner, in a Centrelink Medical Certificate dated
14 October 2018 made a diagnosis of “discogenic lower back” noting that the condition was an exacerbation of a pre-existing condition. Symptoms included “Chronic lower back pain, the pain radiates to legs”. Dr Hamid considered that the symptoms were likely to persist.
In a statement dated 15 October 2019, Mr Mohseni stated that he broke both wrists, hurt both arms, his head, his neck and his back in the fall on 4 July 2002. Mr Mohseni wrote, “Following my assessment with Dr Breit my neck, back, and both arms deteriorated. I am in a lot of pain in my back, neck and both shoulders”.
In a report of an MRI scan of the lumbar spine dated 16 November 2018, Dr Murray Bartlett, radiologist, wrote:
“FINDINGS
No major alignment abnormality. No compression fracture and no destructive lesion. Scanning through the disc level demonstrates no disc bulge in the upper lumbar spine although there is very minimal disc bulge L4/5 contacting the LS nerve roots without displacement. At the L5/SI level there is a small disc bulge just contacting the S 1 nerve roots. When compared to previous study changes this is stable although the annular tear is a little less pronounced at L4/5.
CONCLUSION
Small disc bulges at L5/S1 and L4/5.”
In a recurrence form dated 14 November 2017 Mr Mohseni made a claim for a recurrence of “the pain of my wrists, shoulders and neck and my back”.
In a General Examination Note dated 5 October 2018, Dr Shinwari from the Emergency Department at Blacktown Hospital noted:
“Presenting complaint lower back pain for past 4/7 on background of previous L4/5 injury diagnosed in 2002 post fall from scaffold.
Lower back pain for past 4/7 as patient was walking downstairs.
Describes pain as similar to past flareups, but worse in intensity and no relief since Tuesday.
There is radiation or pain down posterior of R leg more than L
Patient reports numbness in lower limbs. R>L, however this is chronic and associated with chronic back pain
Patient has not taken any medication for pain relief as cites none left at home.”
In a MAC for a General Medical Dispute, issued on 6 November 2020, the AMS noted that the issue in dispute was whether the combined assessments in the two Complying Agreements reached the relevant threshold for a claim for work injury damages. On physical examination, the AMS noted:
“There was global tenderness around the neck, tenderness in the mid thoracic andmost of the lumbar spine. There was no spinal spasm but there was cutaneous
hypersensitivity in the left low back. He was able to walk on heel and tip toes and he
took quite small strides but the gait was otherwise normal.
From the near full flexed posture he was able to bring the neck up to a neutral position
but there was no extension, other movements were symmetrically restricted at less
than a quarter normal. However, with arms crossed and fully rotating the thoracic
spine (which did not move in either direction), there was a greater degree of cervical
rotation as was noted when he was dressing and looking for his shirt sleeve while
dressing.
In the low back he was able to forward flex three quarters of the way down the thighs
with symmetrical extension and lateral flexion. In a seated position both legs lacked
10 degrees to full extension claiming pain in the buttocks. Testing the power of hip
flexion, knee flexion and extension revealed such weakness that he should not be
able to stand upright. Formal straight leg raising was ten degrees bilaterally with no
evidence of sciatic nerve root irritability.
Neurologically besides the marked weakness there was global sensory diminution in the left leg. Tone and reflexes were normal as was sensation in other areas.”
Under “Consistency of presentation”, the AMS expressed the view that Mr Mohseni’s presentation was of gross inconsistency with respect to shoulder movement and neck movement. He considered that the degree of claimed pain and disability was inconsistent with the mechanism of injury, the passage of time and the available investigations. He did not consider that any body part was affected by a previous injury, pre-existing condition or abnormality or that there had been any further injury subsequent to the work injury. The AMS noted that he had assessed the lumbar spine under DRE1 in 2005 and said that he would not accept the complaints of bilateral leg pain without a review of the general practice notes. The AMS considered that the question he was asked to address related to causation in respect of the current lumbar spine complaints and whether they related to an injury 18 years ago and he could not decide causation. The Appeal Panel did not consider that the AMS actually concluded that there had not been any further deterioration in this MAC dated
6 November 2020.
Mr Mohseni relied on the assessment by Dr Giblin dated 10 December 2018 as evidence of deterioration. The assessment by Dr Giblin was evidence of deterioration in the cervical spine and lumbar spine but not in either upper extremity because Dr Giblin assessed 4% WPI for the right upper extremity (wrist) and 1% WPI for the left upper extremity (wrist). The AMS had assessed 8% WPI of the right upper extremity (wrist) and 4% WPI of the left upper extremity (wrist) in the MAC dated 22 November 2005. The Appeal Panel considered that there was no basis to revisit the assessment in respect of the right upper extremity (wrist) and the left upper extremity (wrist) in the absence of evidence of deterioration.
The respondent submitted that Mr Mohseni did not sustain an injury to the cervical spine and alternatively, any injury sustained to the cervical spine has long since resolved. The Appeal Panel noted that the matter had been referred to the AMS for assessment of WPI in 2005 and the body parts to be assessed included the cervical spine. The question of whether
Mr Mohseni sustained an injury to the cervical spine and to the lumbar spine was not a matter for the Appeal Panel to determine and such any issue should have been raised before the matter was referred to the AMS in 2005 or before Member Homan in the telephone conference on 2 December 2021.
The respondent submitted that Dr Giblin had not performed a clinical examination of
Mr Mohseni’s cervical spine and lumbar spine in his report of 10 December 2018 and therefore the recent evidence of the AMS in the MAC dated 6 November 2020 should be preferred.
The respondent appeared to have relied on the incomplete copy of Dr Giblin’s report dated 10 December 2018 and not on the full copy. It was clear from the full copy that Dr Giblin did perform a clinical examination of Mr Mohseni’s cervical spine and lumbar spine and was able to make an assessment of WPI of the cervical spine and lumbar spine.
On balance, the Appeal Panel concluded that there was evidence of deterioration in the lumbar spine and cervical spine.
As the Appeal Panel considered that there was insufficient evidence of any deterioration in the upper extremities since the examination by the AMS on 22 November 2005, the Appeal Panel limited re-examination to cervical spine and lumbar spine.
The Appeal Panel concluded that it was necessary for Mr Mohseni to undergo a further medical examination because there was insufficient evidence on which to make a determination of whether the deterioration in the lumbar spine and cervical spine had resulted in any increase in WPI since the assessment by the AMS on 22 November 2005.
As noted above, Dr Bodel re-examined Mr Mohseni on 1 September 2022. Dr Bodel provided the following report:
1.     “The workers medical history, where it differs from previous records.
I have reviewed the history of Mr Mohseni as recorded by Dr Robert Breit in his Medical Assessment Certificate issued on 22 November 2005. That is the Medical Assessment Certificate being reviewed for the legal reasons outlined during the preliminary assessment of the Medical Appeal Panel.
That report was prepared nearly 17 years ago and I have carefully been through the history with Mr Mohseni to confirm the circumstances. He does confirm that he did fall from a height of about three metres. He was at the time working as a painter for Gloss Painting (Abadollah Sharifpour) and they were doing painting work at a ‘Good Guys store’ which was being built in Castle Hill at that time. He fell awkwardly, injuring both shoulders, both wrists and the neck and back.
I am assigned to assess the neck and back only in this circumstance.
The history indicates that he has had various treatments for the injuries, including treatment from a specialist, Dr Ian Edmunds, upper limb surgeon, and the left wrist was treated in a cast and the right one required manipulation and then fixation in a cast, but prior to that percutaneous wires were inserted. Both wrists were treated conservatively and the wires were later removed and extensive hand therapy was undertaken.
For the shoulders, he had minimal treatment initially but that was a later development.
As a result of his upper limb injuries, he was re-trained and did computer courses and other courses to try and return him to the workforce.
He also had specialist opinions from Dr Andrew Kam and Dr Gordon Dandie, neurosurgeons, about his spinal complaints involving the neck and the back, and various treatments were offered.
In June 2005, it is recorded that he was on his way to a computer course, which had been arranged by the insurer, when he developed severe lower back pain. He was seen by the GP and taken by ambulance to Westmead Hospital, where he was admitted under the care of Dr Dandie. He had acute urinary retention and after catheterisation he settled. His back pain had been very severe at that time but it slowly settled down.
Surgery has not been offered for the neck or the back.
He indicates that in the 17 years since that report, he has continued to have neck and back pain which have been managed conservatively. He has done some sales work. He received wages up until 2013 as part of his Workers Compensation claim. He receives the Disability Support Pension and he works about 10-12 hours doing part-time ‘sales work in a meat shop.’ He does not do any of the butchering work or preparing the meats, but he wraps and packs and serves the customers.
He sees his GP from time to time and is having no other treatments. He did, however, have MRI scans to the cervical spine and the lumbar spine on
22 August 2021 confirming some degenerative disc disease at L3/4 in the lumbar spine and minor degenerative change at C4/5 and more marked degenerative change with sclerosis at the C5/6 level. He also is noted to have an upper thoracic kyphosis.
The only other matter of relevance is that he contracted COVID-19 in September 2021 and he has recovered from that. This has allowed him to return to his part-time work.
2.     Additional history since the original Medical Assessment Certificate was performed.
There is no additional history of injury or accident involving the neck or the back. He has had repeat MRI scans done in August 2021, specifically for updating his medical situation and no further recommendations or treatment were forthcoming.
3.     Findings on clinical examination
Mr Mohseni is 55 years of age. He rises slowly. He walks without a limp. He complains of tenderness in the trapezius muscle at the base of the neck on the right-hand side. He has a reduced range of neck flexion, extension and rotation in all directions and this is most restricted in rotation to the left.
The clinical findings in the upper limbs are as recorded previously and I have not re-examined this area, apart from testing for wasting or weakness, reflex abnormality or sensory loss, to exclude radiculopathy in the upper limbs and there is none evident.
In the lower part of the back, there was tenderness on palpation of the lumbosacral junction on the right side and guarding in that area, and he reaches forward in flexion with his hands to the knees. Again, there is increasing backache at this point and also on extension with a restricted range of lateral bending to the left.
He therefore has asymmetry of movement in the neck and in the back. There are no signs of radiculopathy in the legs. The reflexes are present and equal. There is no wasting in either thigh or calf and there is no weakness in either knee or ankle. There are no clinical signs of radiculopathy there in the upper limbs or the lower limbs.
4.     Results of any additional investigations since the original Medical Assessment Certificate
This patient has had MRI scans of the cervical and lumbar spines on 22 August 2021.
In the cervical spine, there is definite disc pathology at the C4/5 level and C5/6 level, with the most marked pathology at the C5/6 level. This is not inconsistent with the injuries that he suffered all those years ago and his age of 55 years with some associated degenerative change.
There is also the upper thoracic kyphosis which is a constitutional ailment.
In the lumbar spine, he has the central bulging and dehydration at the L3/4 level. The pathology is more marked in the cervical spine than in the lumbar spine.
5.     Opinion
Mr Mohseni has clinical evidence of asymmetry of neck movement and back movement, attracting a DRE Cervicothoracic Category II level of assessable impairment in each area. This confirms the clinical findings reported by Dr Peter Giblin in his report dated 10 December 2018, where he has awarded a 7% Whole Person Impairment for the lumbar spine injury (5% base rating and 2% for ADLs) and a 5% rating for the Cervical Spine, and I agree with that.”
The Appeal Panel has adopted the report and findings of Dr Bodel.
The Appeal Panel was satisfied that Dr Bodel found clinical evidence of asymmetry of neck movement and back movement, attracting a DRE Category II level of assessable impairment in each area. The Appeal Panel assessed 7% WPI for the lumbar spine injury (5% base rating and 2% for ADLs) and a 5% rating for the cervical spine.
The Appeal Panel has therefore assessed 7% WPI for the lumbar spine, 5% WPI for the cervical spine and added 8% WPI for the right upper extremity as assessed by the AMS and 4% WPI of the left upper extremity as assessed by the AMS. The total WPI is 21% WPI as a result of the injury on 17 August 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 November 2005 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:	9789/05
Applicant:	Gholam Mohseni
Respondent:	Abadollah Sharifpour

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 Robert Breit 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)
1.cervical spine	4/7/2002	Chapter 4 Table 4.1 Page 25	Chapter 15 Paragraphs 15.6 Page 392 Table 15-5	5%	Nil	5%
2.lumbar spine	4/7/2002	Chapter 4 Table 4.1 Page 25	Chapter 15 Paragraphs 15.4 Page 384 Table 15-3	7%	Nil	7%
3.right upper extremity	4/7/2002	Chapter 2 Page 13 Paragraphs 2.1-2.13	Chapter 16 Paragraph 16.4g Page 455 Paragraph 16.4h Page 470	8%	Nil	8%
4.left upper extremity	4/7/2002	Chapter 2 Page 13 Paragraphs 2.1-2.13	Chapter 16 Paragraph 16.4g Page 455 Paragraph 16.4h Page 470	4%	Nil	4%
Total % WPI (the Combined Table values of all sub-totals)					21% WPI

Name of Producer	Document name and/or type
Dr K Hamid	Clinical records

[2022] NSWPICMP 438

2 November 2022