Mozafari v Thai Amx Mixer Repairs Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Mozafari v Thai Amx Mixer Repairs Pty Ltd [2022] NSWPICMP 463
APPELLANT:	Mehrzad Mohammad Khan Mozafari
RESPONDENT:	Thai Amx Mixer Repairs Pty Ltd
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	16 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Medical Assessor (MA) assessed 5% whole person impairment (WPI) of the cervical spine; 100% deduction for pre-existing injury on the assumption that because an Approved Medical Assessor had previously assessed the claimant at 5% WPI for an injury in 2004 a 5% deduction was to be made; MA failed to consider whether, and to what extent, the previous injury in 2004 contributed to the current impairment; Held – Panel considered that it was too difficult to determine with any accuracy the correct level of impairment caused by the pre-existing injury in 2004 and made a deduction of 10%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 August 2022 Mehrzad Mohammad Khan Mozafari (Mr Mozafari) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 August 2022.
The respondent to the appeal is Thai Amx Mixer Repairs Pty Ltd (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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 Mozafari sustained an injury to his cervical spine, lumbar spine and left upper extremity on 25 November 2011.
The matter was referred to Medical Assessor Neil Berry, on 16 March 2022 for assessment of whole person impairment (WPI) of the cervical spine, the lumbar spine and left upper extremity (date of injury 25 November 2011).
The MA examined Mr Mozafari on 28 July 2022 and assessed 5% WPI of the cervical spine, and deducted “5” for pre-existing injury, condition and abnormality which resulted in an assessment of 0% WPI of the cervical spine. The MA assessed 6% of the left upper extremity (shoulder) and 7% of the lumbar spine which combined to total 13% WPI in respect of the injury on 25 November 2011.

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 Mozafari did not request that he be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Mozafari to undergo a further medical examination because there was sufficient evidence on which to make a determination.

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.

The MAC

The parts of the medical certificate given by the MA 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 Mozafari‘s submissions include the following:
(a)    Ground 1 – the MAC contained a demonstrable error as the MA assumed that because Mr Mozafari had been assessed at 5% WPI in respect of his neck for a previous injury in 2004, that meant a 100% s 323 deduction was to apply. The MAC contained demonstrable error because the MA failed to engage with the critical question required by s 323 which was whether, and to what extent, the previous injury in 2004 contributed to Mr Mozafari’s current level of impairment.
(b)    Where a worker has suffered a previous injury, and a WPI rating has been assessed for that previous injury, the critical question for the purpose of a s 323 deduction is whether, and to what extent, that previous injury contributed to the worker’s current impairment level as caused by the instant injury. It was incorrect to assume that, because an injury has received a WPI in the past, that it would necessarily contribute in its entirety, or even at all, to an impairment caused by a latter injury (Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole), and Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder)).
(c)    The error was demonstrated at page 5 of the MAC under part 10 where the MA stated:
“I would therefore assess him as DRE Category II which is a 5% Whole Person Impairment. Mr Mozafari had a previous injury in 2004 while working for Matic Furniture. He was assessed in a Medical Assessment Certificate issued by Dr Robert Breit on 1 May 2007 and was assessed as DRE Category II for the cervical spine which is a 5% Whole Person Impairment. This should be deducted from the current assessment and the patient is therefore assessed as a 0% Whole Person Impairment for the cervical spine.”
The above reasoning of the MA demonstrated an incorrect application of s 323 since it rested on the assumption that simply because Dr Breit had previously assessed Mr Mozafari at 5% WPI for an injury in 2004, that would mean 5% WPI must be deducted under s 323 deduction. The MA failed to engage with the critical inquiry required by s 323 which was whether, and to what extent, the previous injury in 2004 contributed to the current impairment found in respect of Mr Mozafari’s cervical spine as a result of the 2011 injury.
(d)    The MA fell into error on page 6 of the MAC under part 10(c) where he stated:
“I have reviewed the Medical Assessment Certificate of Dr Robert Breit dated 1 May 2007 - which reports clinical findings similar to what I found and I would accept that the 2011 injury caused an aggravation of his symptoms but did not increase his Whole Person Impairment.”
(e)    The reasoning of the MA above proceeded on the incorrect premise that the 2011 injury would need to increase Mr Mozafari’s level of impairment for it to have caused an assessable WPI in respect of the neck. Proceeding on this assumption excluded the possibility that Mr Mozafari was caused a “fresh” level of impairment by the 2011 injury which caused impairment and clinical findings similar to those found after the 2004 injury. This was what occurred in this case. Mr Mozafari was unable to return back to work after the 2004 injury until 2011. Thereafter, he was able to work as a welder full time for several months before his second injury. Dr Qidwai in a report dated 22 November 2015 noted Mr Mozafari, after the 2011 injury, felt pain in the neck with stiffness and an inability to work more than a few minutes due neck pain. As Mr Mozafari could work long hours before the 2011 injury, this suggested a fresh or new impairment was caused by the 2011 injury, not present prior to the injury.
(f)    The approach taken by the MA incorrectly excluded the possibility that Mr Mozafari may have been caused a ‘fresh’ or ‘separate’ level of impairment by the second injury, notwithstanding some level of impairment was present from the first injury. Furthermore, it excluded the possibility Mr Mozafari recovered to an extent after the 2004 injury. It was illogical that the 2011 injury could cause an “aggravation of symptoms” and yet be considered to have no contribution to the current level of impairment. A considerable portion of the current impairment level felt in the cervical spine was caused by the 2011 injury. By virtue of the fact Mr Mozafari could work as a welder prior to the injury, but not after due to pain in the neck, this suggested the 2011 injury must have caused a significant degree of impairment in the neck.
(g)    The MA incorrectly stated that similar clinical findings were found by Dr Breit in the MAC dated 1 May 2007 and by the MA in the instant MAC. Dr Breit’s findings in respect of the cervical spine at page 11 of the ARD under part 10b were: “There is asymmetrical loss of movement in the cervical spine as the only clinical feature… Given the minimal findings and the greater than expected complaints of pain as well as the non-organic sensory changes.” The MA in the instant MAC under part 10a found: “The patient presents with an asymmetrical range of movement of the cervical spine, left paraspinal muscle tenderness and no evidence of radiculopathy with normal reflexes, sensation and no evidence of wasting of either upper extremity.” This difference in clinical findings support the proposition that the 2011 injury caused ‘fresh’ cervical spine impairment to the worker in a different way than the 2004 injury. The finding made it inappropriate and incorrect to firstly assume that the totality of the impairment caused by the 2004 injury was present after the 2011 injury and secondly to assume the 2011 did not cause a ‘fresh’ level of impairment in respect of the neck.
(h)    Ground 2 – the MAC contains demonstrable error as the MA’s application of a 100% s 323 deduction was substantially inconsistent with the available evidence and at odds with the intended effect of the provision. The correct deduction to be made was the s 323(2) assumption of 10%, expressed as a fraction.
(i)    The 10% assumption in s 323(2) ought not to be readily departed from. Firstly, the 10% deduction should be applied in the majority of cases and acts almost as a statutory presumption due to the inherent difficulty with determining with any accuracy the correct level of impairment caused by a pre-existing injury or condition as noted by the Schmidt J in Cole at [59] and by Campbell J in Ryder. Secondly, a high threshold of evidence is required before an MA should depart from the 10% assumption (Black Horse Espresso Pty Ltd v Hanna [2022] NSWPICMP 273). Thirdly, reliance on the construction of s 323(2) as evidence for the principle that the 10% assumption ought not be departed from. The intention behind the provision, gleaned from the inclusion of the words “(for the purpose of avoiding disputation)”, was to prevent unnecessary disputes where it is “too difficult or costly” to determine. This was a statutory acknowledgement of the inherent difficulties with determining the contribution of previous injuries or condition to current levels of impairment and therefore allowed assessors to make an assumption. The words “at odds” ought to be read as necessitating that the evidence must be necessarily inconsistent or significantly inconsistent with the assumption for an assessor to depart from the assumption.
(j)    The 100% s 323 deduction was excessive and at odds with the available evidence in the matter. In his statement, Mr Mozafari stated that even after his previous injury, after several years, he was able to work approximately
50-60 hours per week as a welder from February 2011, until he suffered his work injury in November 2011. In paragraph 46 of his statement he said that the injuries sustained in 2004 to his back and cervical spine “improved over time”. These facts suggested that Mr Mozafari had a condition which initially prevented him from working, but over the course of seven years, his condition improved such that he could return to full time work. Therefore, the evidence was inconsistent with the proposition put forward by the MA that the totality of his impairment from his injury in 2004 was present as late as 2011. Hence, the MA in making a deduction of 100% in respect of the cervical spine made a demonstrable error. The relevance of a worker’s ability to return to work and the inference to be drawn from that fact when considered a s 323 deduction was explored in Manildra Meat Company Pty Ltd v L'Estrange [2021] NSWPICMP 42. Applying L’Estrange to the instant case, the fact Mr Mozafari was able to return to physically demanding and arduous work on a full-time basis showed significant improvement in his condition after the 2004 injury. This made it very unlikely that the totality of the cervical spine impairment after the 2004 injury was present several years later in 2011, the time of the instant injury. Therefore, the MA’s failure to consider the importance of this fact led to a 100% deduction being made, demonstrating error.
(k)    The 10% statutory assumption ought to have been made due to the difficulty and cost of ascertaining the contribution of the 2004 injury to Mr Mozafari’s current level of impairment.
(l)    Ground 3 – the MA’s assessment was consequently made on the basis of incorrect criteria in respect of the cervical spine. For the reasons discussed in these submissions above, the MA therefore assessed the appellant’s impairment in respect of the cervical spine on the basis of incorrect criteria.
(m)     Ground 4 – the MA’s assessment of the left upper extremity contained demonstrable error.
(n)    The MA erred in his finding of 6% WPI in respect of Mr Mozafari’s left upper extremity. The MA recorded a WPI for the left upper extremity below the value given by two experts qualified by both the appellant and respondent. Dr Haig, in his report dated 25 May 2011, assessed 9% WPI. Dr Gehr, in his report dated 17 July 2020, assessed 10% WPI. The findings of the MA were manifestly inconsistent with the findings of two experts, who conducted their independent assessments of Mr Mozafari on two different occasions. Therefore, the MAC contains demonstrable error.
(o)    The MA erred under part 10(c) at page 6 of the MAC when making the following observation: “Report of Dr Ron Haig dated 16 July 2021 – Dr Haig provides a detailed history of the patient’s injuries in both accidents. He is uncertain as to the cause of the patient’s ongoing back pain and left shoulder pain and he makes no assessment.” The report of Dr Haig clearly made an assessment of Mr Mozafari’s left shoulder pain as quoted at paragraph 10 of these submissions.
(p)    The MAC should be revoked and the Appeal Panel should issue a MAC either: (a) making no deduction under s 323(2) of the 1998 Act in respect of the cervical spine; or (b) making the s 323(2) assumption of 10% in respect the cervical spine and (c) assessing a WPI of 3% for Activities of Daily Living (ADLs) in respect of the lumbar spine condition.
The respondent’s submissions include the following:
(a)    the MAC did not contain any demonstrable error and the assessment was not made on the basis of incorrect criteria.
(b)    Grounds 1, 2 and 3 – application of a deduction under s 323 of the 1998 Act. Mr Mozafari had a previous injury in 2004 while working for Matic Furniture. He was assessed in a MAC issued by the Approved Medical Specialist (AMS), Dr Robert Breit, on 1 May 2007 and was assessed as having 5% WPI being rated DRE Category II for the cervical spine. The MA deducted this 5% WPI from the current assessment and assessed Mr Mozafari as 0% WPI for the cervical spine.
(c)    The MA was obliged to arrive at his assessment and ultimate conclusion to apply a 5% WPI of the cervical spine, based on the examination carried out on the day, and following his review of the medical evidence before him. Based on his own clinical judgement, reasoning and review of the medical evidence, the MA decided that a 5% WPI deduction under s 323 was warranted and necessary. Just because this did not align with Mr Mozafari’s view of the medical evidence, it did not mean the MA was incorrect in arriving at this conclusion and did not mean that the MA had made an assumption.
(d)    The test for assessing whether a deduction under s 323 applies is whether any pre-existing condition or abnormality contributes to the degree of permanent impairment. If the evidence establishes any proportion the worker’s permanent impairment is due to a previous injury or pre-existing condition or abnormality, a deduction must be made. The use of the word ‘is’ indicates the deduction is mandatory if the evidence establishes any proportion of the permanent impairment is due do pre-existing condition or abnormality.
(e)    It was clear from the MA’s explanation that he considered Mr Mozafari’s pre-existing condition of the cervical spine contributed to his current permanent impairment, to the extent that a deduction under s 323 was warranted. The explanation by the MA that the 2011 injury caused an aggravation of the symptoms but did not increase his WPI supported and justified his reasoning for doing so.
(f)    The MA was required to consider the available evidence and only apply a 1/10^th deduction if such a deduction was not at odds with the available evidence. The MA has appropriately referred to the available evidence of the previous MAC of Dr Breit, and he considered the evidence, and his interview and examination of Mr Mozafari, to conclude that a 5% WPI deduction, which is a 100% deduction, was appropriate.
(g)    In Dr Gehr’s report dated 17 July 2020, he assessed 5% WPI and deducted 5% WPI, that is 100%, for the previous cervical spine injury. This was consistent with the approach taken by the MA. While Dr Gehr, in his subsequent report dated 2 November 2020, amended his assessment of the deduction, this was based on paragraphs 44 to 47 of the appellant’s statement which simply stated that “my back and cervical spine injuries improved over time”. This brief statement was not sufficient to conclude that the cervical spine condition had completely resolved, warranting such a drastic change in the deduction, and as Mr Mozafari did not provide a timeframe for this improvement, this statement could be referring to his condition in the period up to the MAC of Dr Breit in 2007 which found he had 5% WPI of the cervical spine.
(h)    The MA also noted the discrepancy in the s 323 deduction in Dr Gehr’s second report dated 2 November 2020 on page 6 of the MAC where he stated “on this occasion he did not deduct the DRE Category II from the previous injury, and I am uncertain as to why he did not do so”.
(i)    It was acceptable and within jurisdiction to determine that a WPI may have a deduction of 100%; see Treverrow v Registrar of the Workers Compensation Commission [2008] NSWSC 632; Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre & Ors [2007] NSWSC 586 and Zeineddine v Matar [2009] NSWSC 646.
(j)    It was open to the MA not to find that the 2011 injury caused a fresh level of impairment, as Mr Mozafari has not pointed to sufficient medical evidence that would have allowed the MA to so find. The contention that Mr Mozafari was able to work to the extent that he could prior to the 2011 injury was not the determining factor of a fresh or new impairment, or the extent of the impairment of the cervical spine from the 2011 injury. Further, the MAC of Dr Breit noted that Mr Mozafari had continued working after the 2004 injury, and was working normal duties three days a week as a welder and general hand. Accordingly, Mr Mozafari had capacity to work as a welder and general hand when he was assessed as having 5% WPI of the cervical spine by Dr Breit in 2007 and was not prevented from working. It was erroneous for Mr Mozafari to allege that there was significant improvement of the cervical spine after the 2004 injury based on his work capacity, and to suggest that Mr Mozafari’s capacity had improved from being unfit for work to being fit for full time work prior to the 2011 injury. This significantly exaggerated the change in Mr Mozafari’s condition and any alleged improvement in his condition.
(k)    The submission that Mr Mozafari was unable to return to work after the 2004 injury until 2011, was incorrect. The history of employment relied upon by Mr Mozafari was inconsistent with the evidence. The MA took a history from on page 2 of the MAC that Mr Mozafari was unable to return to work until 2009 and that from 2009 to 2011 he worked part time as a welder for various companies and then obtained employment with Thai Amx Mixer Repairs Pty Ltd. The MAC of Dr Breit in 2007 also recorded that Mr Mozafari was working normal duties three days a week as a welder and general hand at that time.
(l)    In his statement on page 3 of the Application to Resolve a Dispute (ARD), Mr Mozafari clearly stated that after the 2011 injury “[a]s a result of the injury to my shoulder I was unable to return to work” and in the statement on page 4, he stated that he attempted to perform contract work as a track welder in 2016 however he had issues with pain in both his shoulders and arms and ceased this work in 2017. Therefore, Mr Mozafari significantly linked his incapacity to work since the 2011 injury to his shoulder condition(s), and not his cervical spine condition which suggested that his cervical spine impairment was not the main cause of his incapacity from 2011.
(m)     The MA clearly set out his assessment of Mr Mozafari’s cervical spine impairment at page 6 of the MAC. The MA properly explained the justification for the deduction under s 323. Ultimately it was a matter of clinical assessment for the MA based upon his assessment of Mr Mozafari, and review of the material available to him. The findings made by the MA were open to him to make.
(n) Accordingly, the first, second and third grounds of appeal cannot succeed because Mr Mozafari has not satisfied the requirements of s 327(3)(c) and (d) to establish a demonstrable error and/or the application of incorrect criteria in relation to the application of a deduction under s 323 of the 1998 Act.
(o)    Ground Four – error in the assessment of the left shoulder – the MA provided a worksheet outlining his assessment using the range of movement model for the left shoulder and found that Mr Mozafari has 6% WPI. The MA's findings were consistent with his own examination and therefore no error existed. The MA provided a thorough assessment and arrived at a position that was open to him. The opinion of the AMS was based upon an appropriate examination of Mr Mozafari and he obtained a range of movement assessment, which he attached to the MAC.
(p)    The MA gave clear and cogent reasons for his opinion before concluding on the appropriate impairment of the left shoulder. He adequately explained his actual path of his reasoning. Dr Haig’s report dated 24 August 2021 was based on an examination on 16 July 2021, and Dr Gehr’s report dated 2 November 2020 is based on an examination on 17 July 2020, (over one and two years ago) and they were therefore outdated and unreliable in any event.
(q)    Further, while the MA may have incorrectly referred to Dr Ron Haig as providing no assessment of impairment under part 10(c) at page 6 of the MAC, given that the MA’s findings were consistent with his own examination, this did not make any difference to the MA’s ultimate assessment of Mr Mozafari’s left shoulder impairment.
(r) Accordingly, the fourth ground of appeal cannot succeed because Mr Mozafari did not satisfy the requirements of s 327(3) (d) to establish a demonstrable error in relation to the left shoulder assessment.
(s)    Mr Mozafari failed to establish the MAC contains a demonstrable error or the assessment was based on incorrect criteria, as there was information or material to support the findings made by the MA. The MA carefully considered the material and arrived at a position that was open to him. The approach taken by the MA was not in error and there was no evidence of incorrect criteria on the MAC.
(t)    The MA was not required to follow the opinions of any of the doctors qualified for the parties. He was not required to refer to each and every piece of evidence filed by the parties and provide reasons as to why he did not agree with it.
(u)    The application for appeal must fail and that the MAC be confirmed.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

The MAC

Under “History relating to the injury”, the MA wrote:
“On the day of injury, the patient recalls that he was working inside the barrel of a cement mixer. He was standing on one of the lower fins when he was overcome by the fumes in the barrel and collapsed to the surface of the barrel and was briefly unconscious. His fall was noted by a fellow worker and he was taken by Ambulance to Fairfield Hospital. Mr Mozafari waited for some two to three hours and when he had not been seen, he self discharged himself and went home and he was subsequently followed up by Dr Khalid Qidwai, his general practitioner.
Mr Mozafari suffered injuries to the left side of his neck, his left shoulder and his low back. Dr Qidwai organised various X-rays and subsequently organised steroid injections which afforded temporary relief. The patient told me that in addition to the injuries nominated to the neck, back and left shoulder he also began to develop pain in the left elbow and some two to three years ago developed pain in the right elbow.
Mr Mozafari was unable to return to his pre-injury duties and remained at home but then for the last year he has worked as an Uber driver which allows him to rest as he needs to and take work as it is offered”.
Under “Details of any previous or subsequent accidents, injuries or conditions” the MA wrote:
“Mr Mozafari told me that he had an injury in a fall in 2004 while working as a welder for Matic Furniture. He suffered injury to his neck, right shoulder and teeth. A claim was made and settled. He was unable to return to work till 2009 and from 2009 to 2011 he worked part-time for various companies as a welder and then obtained employment with Thai AMX(sic) Mixer Repairs Pty Ltd in February 2011”.
Under “Findings on physical examination”, the MA wrote:
“Cervical Spine
The patient had diffused tenderness localised mainly to the left paraspinal muscles. He demonstrated two thirds of the normal range of right and left rotation. Extension was half range and flexion was full range. Lateral flexion to the left and right was half range. There was no muscle spasm, no muscle guarding and no alteration of spinal contour.
Upper Extremities
The patient was not tender in the right shoulder. He was tender in the left shoulder and had a restricted range of movement (please see the attached worksheet). At the elbows, there was pain and tenderness on the medial and lateral sides of the elbows but no evidence of any loss of movement and no sensory changes. Reflexes and sensation were intact and there was no unilateral muscle wasting”.
Under “summary of injuries and diagnoses” on page 5 of the MAC, the MA wrote:
“This is a man who collapsed as a result of fumes in a cement mixer barrel falling injuring his neck, left shoulder and low back. The clinical examination and imaging reveals that the patient has soft tissue injuries to the neck and back and bursitis involving the left shoulder.
• Consistency of presentation
There was no evidence of any exaggeration or illness behaviour that would preclude a proper assessment of the patient’s Whole Person Impairment.”
Under “Reasons for Assessment”, at 10(c) the MA wrote:
“Cervical Spine
The cervical spine is assessed using the DRE methods and I refer you to the AMA 5^th Edition of the Guides to the Evaluation of Permanent Impairment, Table 15-5 on page 392. The patient presents with an asymmetrical range of movement of the cervical spine, left paraspinal muscle tenderness and no evidence of radiculopathy with normal reflexes, sensation and no evidence of wasting of either upper extremity. I would therefore assess him as DRE Category II which is a 5% Whole Person Impairment.
Mr Mozafari had a previous injury in 2004 while working for Matic Furniture. He was assessed in a Medical Assessment Certificate issued by Dr Robert Breit on 1 May 2007 and was assessed as DRE Category II for the cervical spine which is a 5% Whole Person Impairment. This should be deducted from the current assessment and the patient is therefore assessed as a 0% Whole Person Impairment for the cervical spine.
Left Upper extremity (shoulder)
The patient is assessed using the range of movement model for the left shoulder and I refer you to the (attached worksheet) and you will note that the patient is assessed as having a 6% Whole Person Impairment”.
In commenting on the other medical opinions and findings, the MA wrote:
“I have reviewed the Medical Assessment Certificate of Dr Robert Breit dated 1 May 2007 - which reports clinical findings similar to what I found and I would accept that the 2011 injury caused an aggravation of his symptoms but did not increase his Whole Person Impairment.
Report of Dr Eugene Gehr dated 17 July 2020 – Dr Gehr assessed the shoulder at 10% which is slightly higher than my assessment of Whole Person Impairment and the lumbar spine at 7% which I agree with. He also made a deduction of DRE II for the cervical spine.
He then provided a second report dated 2 November 2020, and on this occasion he did not deduct the DRE Category II from the previous injury, and I am uncertain as to why he did not do so.
Report of Dr Sikander Khan dated 23 July 2019 – Dr Khan reports a significantly greater range of movement in the left shoulder, particularly in flexion, however, this can vary. He makes no assessment to the patient’s Total Whole Person Impairment.
Report of Dr Ron Haig dated 16 July 2021 – Dr Haig provides a detailed history of the patient’s injuries in both accidents. He is uncertain as to the cause of the patient’s ongoing back pain and left shoulder pain and he makes no assessment”.
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”. the MA wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Cervical Spine Injury”.
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.

Deduction for previous injury – cervical spine

The Guidelines at Part 2 under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Section 323 of the 1998 Act provides:
“(1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30     Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31     The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine.Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case.An assumption of the kind here made, namely that surgery to the lumber spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.
31     …That is a matter of fact to be assessed on the evidence led in each case.”
In Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Campbell J referred to D'Aelo v Ambulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365, and to Cole. In Clinen Campbell J said:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before
s. 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
Campbell J also noted that it is “... necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case.”
In Ryder Campbell J at [42] said:
“Although s 323(2) does not use the word ‘proportion’ it addresses the idea that in some, perhaps many, if not most, cases it may be ‘difficult or costly to determine’ the relevant proportion. In that event, a rule of thumb (‘assumption’) of 10 per cent is to be adopted.”
And at [54]:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”
Mr Mozafari submitted that the MA incorrectly applied a deduction for previous injury or pre-existing condition or abnormality because the MA assumed that because Mr Mozafari had been assessed at 5% WPI in respect of his neck for a previous injury in 2004, that meant a 100% s 323 deduction was to apply. Mr Mozafari argued that the MAC contains demonstrable error because the MA failed to engage with the critical question required by s 323 which was whether, and to what extent, the previous injury in 2004 contributed to Mr Mozafari’s current level of impairment.
The Appeal Panel accepted that the MA made an error in that he failed to engage with the question required by s 323 of the 1998 Act, that is, whether, and to what extent the previous injury in 2004 contributed to Mr Mozafari’s current level of impairment. The MA simply accepted the assessment of WPI made by the AMS, Dr Breit, in 2007 as being the amount of impairment that was pre-existing and then deducted that amount assuming it to be the pre-existing impairment from the current impairment. The MA made an assumption, even though Mr Mozafari had returned to full time employment as a welder, that the very fact of the existence of that prior injury and an assessment of 5% WPI in 2007, resulted in an impairment of that amount which must have contributed to the impairment that arose after the second injury in 2011. The Appeal Panel considered that the MA failed to follow the steps set out in Cole and determine on the evidence whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.
The Appeal Panel reviewed the evidence in this matter.
Mr Mozafari, in a statement dated 14 September 2020, said that he commenced employment with the respondent on 23 February 2011 as a welder. He stated that he was employed full-time and worked between 50-60 hours a week Monday to Friday and would regularly work overtime on weekends when required.
Mr Mozafari stated that on 7 October 2004 when employed as a welder by Matic Furniture Pty Ltd he was struck in the mouth by the frame of an angle grinder and fell off the ladder he was on, landing on his back on the concrete floor. He stated that he fell 2.5m and injured his back, neck and mouth. He wrote: “The injuries I sustained to my back and cervical spine improved over time.”
In the MAC dated 1 May 2007, the AMS, Dr Breit, noted on examination that axial compression of the skull produced some mild neck pain. The AMS wrote:
“This gentleman was tender throughout most of the trapezius (but no spasm) and the side of the neck extending down to the scapula region. Flexion and extension were normal. There was slight loss of rotation to the left. Lateral flexion was normal. Thoracic rotation to the left was half normal.”
The AMS made a diagnosis of neck pain and back pain. He noted that the arm complaints were referred pain from the neck and there was no evidence of intrinsic pathology. He wrote:
“There is evidence of impairment involving the spinal area. The right upper extremity pain and dysfunction is really right trapezial and related to the cervical pathology. There is no evidence of intrinsic right upper extremity pathology. …There is asymmetrical loss of movement in the cervical spine as the only significant clinical feature and therefore this gentleman has to be classified under DRE Category 5 [sic] which is associated with a 5% baseline WPI. This gentleman says he is able to do everything at home but with some claims of pain. Given the minimal findings and the greater than expected complaints of pain as well as the non-organic sensory changes, I cannot justify an addition for ADLs on the basis of this gentleman’s complaints of pain”.
In a report dated 17 July 2020, Dr E Gehr, orthopaedic surgeon, noted that Mr Mozafari had an injury to his neck, back and face in 2004 and said that at the time of his injury in 2011, he was still having problems with his neck and his back. Dr Gehr noted that following the injury in 2011, Mr Mozafari did not work until 2016 when he did some part time work doing tack welding which was a light job until the end of 2016 for a recruitment agency. Mr Mozafari then started work as an Uber driver in January 2018.
Dr Gehr reported that Mr Mozafari presented with ongoing pain in the cervical spine and on examination he found evidence of dysmetria. Dr Gehr made the following diagnosis: “Cervical spine soft tissue injury, aggravated from the previous accident of 7 October 2004.” Dr Gehr assessed 5% WPI of the cervical spine and deducted “5% for his previous settlement of 2007.” This resulted in an assessment of 0% WPI for the cervical spine.
In a report dated 2 November 2020, Dr Gehr noted that he had read the statement of Mr Mozafari dated 14 September 2020 and reviewed his assessment of permanent impairment. He assessed 5% WPI for the cervical spine and made no deduction for pre-existing injury.
In a report dated 16 July 2021, Dr Ron Haig, orthopaedic surgeon, noted on examination:
“Examination of the cervical spine showed him to have a normal posture. There was a full and equal range of motion in terms of left and right rotation and left and right lateral flexion. There was claimed tenderness in the left paraspinal musculature to minimal palpation. In the upper extremities there was normal power. Sensation was diminished in most of the left upper extremity which was non-anatomic in distribution. I could elicit neither wrist jerk nor biceps jerk on either side. The triceps jerks were symmetrically present.”

Dr Haig was unable to make a diagnosis and recommended radiological investigation of the cervical spine.
In a report dated 24 August 2021, Dr Haig assessed Mr Mozafari as DRE I for the cervical spine “which carries a 0% WPI”.
The Appeal Panel was satisfied that a proportion of the permanent impairment present after the second injury was due to the earlier injury in 2004.
The Appeal Panel noted that there was very little evidence concerning the cervical spine before the injury in 2011 apart from the assessment of the AMS, Dr Breit, in 2007. Dr Breit in the MAC dated 1 May 2007 noted that no investigations had been carried out. Mr Mozafari had managed to go back to work as a full-time welder in February 2011 and the Appeal Panel accepted that such duties would have been physically demanding. Dr Gehr noted that Mr Mozafari had an injury to his neck, back and face in 2004 and said that at the time of his injury in 2011, he was still having problems with his neck and his back. There were no clinical notes from the treating general practitioner for the period 2004 to 2011 and no radiological investigations before 2020. In those circumstances, the Appeal Panel considered that it was too difficult to determine with any accuracy the correct level of impairment caused by the pre-existing injury in 2004. On balance, the Appeal Panel did not consider that a 10% deduction was “at odds” with the available evidence.

Assessment of left upper extremity

Mr Mozafari submitted that the MA erred in his finding of 6% WPI in respect of the left upper extremity. Mr Mozafari argued that the MA recorded a WPI for the left upper extremity below the value given by two experts qualified by both of the parties and his findings were manifestly inconsistent with the findings of two experts, conducting their independent assessments of Mr Mozafari on two different occasions.
The Appeal Panel reviewed the evidence in the matter.
The MA noted that Mr Mozafari was tender in the left shoulder and had a restricted range of movement. He made an assessment using the range of movement model for the left shoulder as set out in the attached worksheet. Mr Mozafari was assessed as having a 6% WPI. In the worksheet dated 28 July 2022, the MA found 110 degrees flexion, 30 degrees extension, 40 degrees adduction, 100 degrees abduction, 90 degrees internal rotation and 90 degrees external rotation. These findings carried an upper extremity impairment of 5%, 1%, 0%, 4%, 0%, 0%, respectively and add up to 10% which converts to 6% WPI.

Dr Gehr, in his report dated 17 July 2020, made the following findings:
“Upper extremities. Rotator cuff muscle wasting behind the left shoulder. Examination of left shoulder. Flexion 100 degrees, extension 40 degrees, abduction 60 degrees, adduction 30degrees, external rotation 40 degrees and internal rotation 40 degrees. Positive impingement left shoulder.
…He has left shoulder pain with a decreased range of motion and muscle wasting. From the WorkCover Guidelines, page 10, Paragraphs 2-3 to 2-8, for loss of range of motion and AMA Fifth Edition, pages 476, 477 and 479, Figures 16-40, 16-43 and 16-46, the upper extremity impairment equals 17%, WPI equals 10%.”
Dr Haig in his report dated 25 May 2011 in respect of the left shoulder were:
“Be that as it may, accepting the range of motion I measured and quoted in my report, namely of flexion to 100°, extension to 30°, abduction to 80°, adduction to 25°, external rotation to 40° and internal rotation to 60°, these carry an upper extremity impairment of 5%, 1%, 5%, 1%, 1%, 1%, 2% respectively These add to 15% which converts to 9% WPI.
Whether he suffered any earlier loss of range of motion as a result of the malunion (shortening) of the clavicular fracture is not known.”
Dr Haig also wrote: “In terms of the left shoulder I have made the point that I do not have a diagnosis and, as such, cannot explain his reduced range of motion”.
The Appeal Panel accepted that the MA was correct in stating that Dr Haig was uncertain as to the cause of left shoulder pain. The Appeal Panel accepted that the MA was correct in stating that Dr Haig made no assessment of the left shoulder in his report of 16 July 2021. Dr Haig did make an assessment of the left shoulder in his report of 24 August 2021, but the MA did not refer to this report. While the MA may not have referred to Dr Haig’s assessment of impairment of the left shoulder, the MA’s findings were consistent with his own examination, and the failure to refer to the report of 24 August 2021 did not, in the view of the Appeal Panel, make any difference to the MA’s actual assessment of Mr Mozafari’s left shoulder impairment.
The Appeal Panel noted that Dr Gehr’s examination of Mr Mozafari was conducted by video link on 17 July 2020. This was nearly two years before the examination by the MA on 28 July 2022. The Appeal Panel considered that given the time that has elapsed since that examination and the method of examination, less weight can be placed on the findings made in the examination. Dr Haig examined Mr Mozafari in person on 9 July 2021, that is nearly a year before the examination by the MA.
The Appeal Panel considered that the MA’s findings were consistent with his examination and he provided a thorough assessment. The opinion of the MA was based upon an appropriate examination of Mr Mozafari and that he obtained a range of movement assessment, which was attached to the MAC. The MA adequately explained his actual path of his reasoning. The MA was not required to follow the opinions of any of the doctors qualified for the parties.
The Appeal Panel found no error in the MA’s assessment of the left upper extremity.
The Appeal Panel noted that in Mr Mozafari’s submissions under “Orders Sought” reference was made to “Assessing a WPI of 3% for ADLs in respect of the appellant’s lumbar spine condition”. However, this reference was the only reference to ADLs in the submissions and the Appeal Panel considered that it was included by mistake since the submissions only addressed the s 323 deduction in respect of the cervical spine and the assessment of the left upper extremity.
In summary, the assessment of the cervical spine was 5% WPI. A deduction of 10% for pre-existing injury resulted in 4.5% WPI which was rounded up to 5% WPI. To this figure 7% WPI was added for the lumbar spine and 6% WPI was added for left upper extremity giving 17% WPI. The final combined WPI was 17% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
3 August 2022 should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W3744/22
Applicant:	Mehrzad Mohammad Khan Mozafari
Respondent:	Thai Amx Mixer Repairs 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 Neil Berry and issues this new Medical Assessment Certificate as to the matters set out in the Table below.

Table - Whole Person Impairment (WPI)

Table 2 - Assessment in accordance with AMA 5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002

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	Sub-total/s % WPI (after any deductions in column 6)
Cervical Spine	25/11/2011	Chapter 15 Page 392 Table 15-5 DRE Category II	5%	1/10^th	5%
Left Upper Extremity	25/11/2011	Chapter 16	6%	0	6%
Lumbar spine	25/11/2011	Chapter 4 Page 28 Paragraphs 4.34 and 4.35	Chapter 15 Page 384 Table 15-3 DRE Category II	7%	0	7%
Total % WPI (the Combined Table values of all sub-totals)					17%

[2022] NSWPICMP 463

16 November 2022