Nguyen v Real Pet Food Company Pty Ltd; Real Pet Food Company Pty Ltd v Nguyen
[2025] NSWPICMP 262
•15 April 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nguyen v Real Pet Food Company Pty Ltd; Real Pet Food Company Pty Ltd v Nguyen [2025] NSWPICMP 262 |
| APPELLANT: | Van Vuong Nguyen |
| RESPONDENT: | Real Pet Food Company Pty Ltd |
| APPELLANT: | Real Pet Food Company Pty Ltd |
| RESPONDENT: | Van Vuong Nguyen |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Todd Gothelf |
| MEDICAL ASSESSOR: | Tommasino Mastrioanni |
| DATE OF DECISION: | 15 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); time at which pre-existing condition must be present for a disease injury in order that section 323 can be engaged; whether Medical Assessor (MA) was correct to apply section 323; whether MA correctly applied Table 4.2 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); Held – MA erred by applying section 323 because the worker did not have a pre-existing condition; Appeal Panel held MA incorrectly applied Table 4.2 of the Guidelines; MAC revoked and new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 January 2025 Van Vuong Nguyen lodged Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 January 2025. On 7 February 2025 Real Pet Food Company Pty Ltd (Real Pet Food) lodged an application to appeal against the same medical assessment.
Both parties rely on the ground for appeal listed at s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), being the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
From either the age of 23 or 24 years, Mr Nguyen worked as a forklift driver for Real Pet Food. In a statement he signed on 18 May 2021 he described that his work for Real Pet Food required him to lift boxes weighing between 14 and 32 kilograms above his head with his arms extended. He described that at times he had to use a hand trolley to push boxes which required him to lift the boxes in awkward spaces. He described that sometimes the forklifts he drove were old and the suspension on those were poor, which resulted in a lot of jolting of his body. He described that there were uneven areas on the floors over which he drove which resulted in his being thrown up and down and from side to side and his jarring his whole spine as a consequence.
Mr Nguyen experienced occasional back pain over the years after he commenced his employment. In 2016 he consulted his general practitioner regarding his symptoms. In 2020 he started experiencing neck pain and tingling in his hands.
Mr Nguyen ultimately came under the care of neurosurgeon Dr Simon McKechnie, who on 20 November 2020 performed a decompression and T9-T12 laminectomy. On 30 April 2021 Dr McKechnie performed a C4-C6 laminectomy. On 3 July 2023 he carried out a L4-S1 decompression and instrumented fusion.
Mr Nguyen contended he injured his thoracic and cervical spine due to the work he did for Real Pet Food. On 27 May 2021 he instituted proceedings in the Personal Injury Commission (Commission) seeking the Commission determine a claim he made against Real Pet Food for weekly payments of compensation from 10 September 2020 and for compensation for the cost of his thoracic and cervical surgeries he underwent. He claimed he had an incapacity for work from his injury and the surgeries he had were needed to treat his injury.
Real Pet Food disputed liability to pay the compensation Mr Nguyen claimed, asserting that Mr Nguyen had not suffered an injury to his cervical spine and thoracic spine due to the nature of his employment with it and his need for the surgeries he had to his thoracic and cervical spines were not therefore the result of any such injury.
The Commission referred the matter to Member Ms Rachel Homan who conducted an arbitration hearing on 3 August 2021 with the parties. On 9 August 2021 the Commission issued a Certificate of Determination recording the Member’s determination of the dispute between the parties and the order she made consequent upon her determination.[1] The Commission also published a Statement of Reasons Member Homan provided for the determination and order she made. At [132] of her Statement of Reasons Member Homan recorded that she was “satisfied that employment was at least the main contributing factor to an aggravation, acceleration, exacerbation or deterioration in the course of employment of the degenerate disease in the applicant’s spine, if not the contraction of that disease”. At [135] she recorded that she was satisfied that the need for Mr Nguyen to have the surgeries on 20 November 2020 and 30 April 2021 resulted from the injury she found he had suffered. The determination she made was that “[Mr Nguyen] has sustained an injury pursuant to s4(b)(ii) of the Workers Compensation Act 1987 to his thoracic spine and cervical spine as a result of the nature and conditions of his employment [Real Pet Food] from 16 November 1983 to 10 September 2020”.
[1] Nguyen v Real Pet Food Company Pty Ltd [2021] NSWPIC 283.
On 23 September 2022 Mr Nguyen’s solicitors wrote to Real Pet Food’s insurer seeking that it pay for the cost of surgery that was at that stage proposed for Mr Nguyen’s lumbar spine, being the surgery that Dr McKechnie ultimately performed on 3 July 2023 in the form of an L4-S1 instrumented fusion with decompression. The insurer denied liability for that surgery, prompting Mr Nguyen to initiate further proceedings in the Commission on 11 October 2022. That matter was also referred to Member Homan who conducted an arbitration with the parties on 16 January 2023. The Commission issued a Certificate of Determination on 16 February 2023 recording her determination and the consequent orders she made based on her determination.[2] It also published her Statement of Reasons for her determination and order. Member Homan recorded in that Statement of Reasons that as at the time of the arbitration hearing, the insurer was not disputing that Mr Nguyen suffered an injury to his lumbar spine but disputed that the need for Mr Nguyen to have the surgery was reasonably necessary as a result of Mr Nguyen’s injury to his lumbar spine.
[2] Nguyen v Real Pet Food Company Pty Ltd [2023] NSWPIC 63.
Member Homan found that it was and made a determination accordingly and made an order obligating Real Pet Food to pay for the cost of that surgery, which as said preceded on 3 July 2023.
On 24 May 2024 Mr Nguyen’s solicitors wrote to Real Pet Food’s insurer providing it with a “permanent impairment claim form” that Mr Nguyen had signed and by which Mr Nguyen sought compensation from the insurer for permanent impairment from an injury to his thoracic, cervical and lumbar spine or the order of 51% whole person impairment (WPI). Mr Nguyen’s solicitors also provided the insurer with a report of neurosurgeon Dr Timothy Lukins dated 10 April 2024, on which Mr Nguyen relied to support his claim. In his report Dr Lukins advised that he assessed Mr Nguyen had 23% WPI relating to his lumbar spine, 20% WPI relating to his cervical spine and 19% WPI relating to his thoracic spine, which combined to 51% WPI.
On 28 September 2024 the insurer wrote to Mr Nguyen notifying him under s78 of the 1998 Act that it disputed liability to pay him compensation for permanent impairment from his injury. It advised him that it accepted he suffered injury to his lumbar, thoracic and cervical spine. It noted that it had arranged for him to be assessed by Dr Anthony Smith, whom the Appeal Panel notes is an orthopaedic surgeon. Dr Smith had advised the insurer that the pathology present in Mr Nguyen’s spinal column is not the result of his employment but consists of constitutional maladies and that Mr Nguyen’s injury had resulted in a permanent impairment of 2% WPI only, which the Appeal Panel observes is less than the threshold of more than 10% permanent impairment that is required under s66(1) of the Workers Compensation Act 1987 for a worker to be entitled to compensation for permanent impairment.
The insurer provided Mr Nguyen with its correspondence copies of reports of Dr Smith dated 15 August 2024 and 13 September 2024. In his report of 15 August 2024 Dr Smith advised he assessed Mr Nguyen had 17% WPI relating to his cervical spine, 18% WPI relating to his thoracic spine and 24% WPI relating to his lumbar spine (after a rating of 3% WPI had been added for the effects of Mr Nguyen’s lumbar impairment on his activities of daily living). Dr Smith noted this combined to 49% WPI. He said in that report that in his opinion that impairment was not a consequence of Mr Nguyen’s “work incident” and was entirely constitutional. In his report of 13 September 2024, he said that the operations that Mr Nguyen had undergone were for “degenerative constitutional pathologies” and he said that “one can deduct 95% of the 49% whole person impairment, leaving 2% whole person impairment one could attribute to anything that happened on 11 December 2023”.
The receipt of that correspondence from the insurer prompted Mr Nguyen again to initiate proceedings in the Commission, by filing an Application to Resolve a Dispute dated 23 October 2024. By this application he sought the Commission to determine his claim against the insurer for compensation for permanent impairment.
The matter was referred to the Medical Assessor who examined Mr Nguyen on 19 December 2024 and, as said, issued the MAC in response to that referral on 9 January 2025. In that he detailed that he assessed Mr Nguyen has a permanent impairment relating to his cervical spine of 17% WPI. His explanation for that was as follows:
“Mr Nguyen has undergone a C4-C7 decompression in the cervical spine. SIRA, page 29, paragraph 4.37 directs that procedures undertaken for decompression be assessed as DRE Category III. AMA-5, page 392, Table 15-5 assesses 15% whole person impairment for Cervical DRE Category III. SIRA, page 29, paragraph 4.2 assesses additional 1% for each extra surgical level. 15% combined with 2% gives a total of 17% whole person impairment.”
The Medical Assessor also detailed that he assessed Mr Nguyen’s permanent impairment relating to his lumbar spine is 31% WPI. His explanation for that was as follows:
“SIRA, page 29, paragraph 4.37 directs that surgical procedures undertaken for arthrodesis be assessed as DRE Category IV. AMA-5, page 384, Table 15-3 assesses DRE Category IV at 20% whole person impairment. An additional 2% is assessed for restriction of activities of daily living as per SIRA, page 28, paragraph 4.34. SIRA, page 29, paragraph 4.2 assesses an additional 1% for each surgical level. Whilst the fusion was undertaken from L4-S1, the decompression was undertaken from L3-S1. Hence, a further 2% is assessed for additional surgical levels. Mr Nguyen has persistent symptoms into his leg and dorsiflexor weakness satisfying the definition of radiculopathy. A furtehr (sic) 3% is assessed for residual symptoms as per SIRA, page 29, paragraph 4.2. 27% combined with 5% gives 31% whole person impairment for the lumbar spine.”
The Medical Assessor further detailed that he assessed the permanent impairment of Mr Nguyen relating to his thoracic spine is 17% WPI, providing the following explanation for that assessment:
“SIRA, page 29, paragraph 4.37 directs that decompressive procedures in the thoracic spine to be assessed as DRE Category III. According to AMA-5, page 389, Table 15-4, 15% whole person impairment is assessed for the decompression. SIRA, page 29, paragraph 4.2 assesses a further 1% for each additional surgical level. Total whole person impairment for the thoracic spine is 17%.”
The Medical Assessor also detailed that he assessed Mr Nguyen had a degree of permanent impairment of the order of 1% WPI from his injury relating to scarring from his surgeries. No issue has been raised by the parties in their respective appeals against the MAC regarding that assessment or of the assessments the Medical Assessor made of the overall permanent impairment Mr Nguyen had relating to his thoracic spine and cervical spine.
The Medical Assessor certified in the MAC that a proportion of Mr Nguyen’s permanent impairment relating to his cervical, thoracic and lumbar spine was due to a pre-existing condition, which he identified in the MAC as “cervical spondylosis, Scheuermann’s disease and thoracic spondylosis, lumbar spondylosis”. He explained that in his view “injury to each of the regions of the spine represents aggravation of a pre-existing constitutional (in the case of thoracic spine developmental) pathology”. He certified that half of the permanent impairment he assessed Mr Nguyen to have in the cervical, thoracic and lumbar spine was due to the pre-existing conditions providing the following explanation for his assessment of that matter:
“The surgery that has been undertaken on Mr Nguyen’s cervical, thoracic spine and lubmar [sic] spine is on the basis of pre-existing constitutional and developmental pathologies. In the absence of these conditions, it is unlikely that prolonged occupational exposure that Mr Nguyen has had would have led to a condition necessitating the surgery that he has had.”
The Medical Assessor, in Table 2 within the MAC, recorded that when he made a deduction of a half to the permanent impairment he had assessed Mr Nguyen had to his cervical spine the result was 9% WPI. He recorded that when he made a deduction of a half to the 31% WPI he assessed Mr Nguyen relating to his lumbar spine the result was 16% WPI. He recorded that when he made a deduction of a half to the 7% WPI he assessed Mr Nguyen had with respect to his thoracic spine the result was 8% WPI.
The net impairments when combined and then also combined with the 1% WPI the Medical Assessor assessed Mr Nguyen had relating to scarring resulted in 31% WPI and that is what the Medical Assessor certified he assessed is the degree of Mr Nguyen’s permanent impairment from his injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Nguyen to undergo a further medical examination. This is because the Appeal Panel considers that the material before it is sufficient for it to determine the appeals both parties have made against the Medical Assessment Certificate.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Mr Nguyen in his submissions in support of his appeal against the medical assessment noted that before he commenced employment with Real Pet Food he did not have any problems with his spine. He noted that the Medical Assessor had recorded noted he had a constitutional condition, which was spondylosis.
Mr Nguyen noted that the Commission had determined that his need for his surgeries on his cervical, thoracic and lumbar spine was the result of his injury.
As the Appeal Panel understands his written submissions, Mr Nguyen submitted that there is no evidence that his constitutional condition existed prior to the commencement of his employment and, in any event, that there is no evidence that a proportion of his permanent impairment is due to his constitutional condition.
Mr Nguyen submitted that the Medical Assessor relied on the opinion of Dr Smith to conclude that he had Scheuermann’s disease. Mr Nguyen submitted that Member Homan dismissed the opinion of Dr Smith. Mr Nguyen referred to the opinion of Dr McKechnie, expressed in a report of 10 February 2022, that pathology revealed on MRI consisted of multiple disc and osteophyte complexes that compressed the spinal chord and cauda equina at multiple levels and was “not substantially related to Scheuermann’s disease”. Mr Nguyen noted that the Medical Assessor did not comment on this opinion.
Mr Nguyen submitted that it was an error to make a deduction in this case, and in the alternative, he submitted that if a deduction is to be made it should be assumed to be one-tenth in accordance with s 323(2) of the 1998 Act.
In response to Mr Nguyen’s submissions in support of his appeal against the medical assessment, Real Pet Food noted that the Medical Assessor found that a proportion of Mr Nguyen’s permanent impairment was due to pre-existing constitutional pathology and with respect to his thoracic spine a developmental pathology and found that the surgery that Mr Nguyen had was due to those pathologies. Real Pet Food highlighted that the Medical Assessor considered that without the pre-existing constitutional development pathologies it was unlikely that Mr Nguyen’s prolonged occupational exposure would have necessitated the surgeries.
Real Pet Food submitted that the Medical Assessor gave consideration to all of the material before him when concluding that a proportion of Mr Nguyen’s permanent impairment was due to pre-existing conditions. Real Pet Foods submitted that the deduction of 50% that the Medical Assessor made “is entirely appropriate and has been well explained by the MA in the MAC”.
In support of its appeal against the medical assessment, Real Pet Food submitted that, with respect to the deduction the Medical Assessor made for the proportion of Mr Nguyen’s permanent impairment that was due to the pre-existing condition in his thoracic spine, the Medical Assessor wrongly rounded down the result after making a deduction. Real Pet Food submitted it should have been rounded up. Real Pet Food noted that the Medical Assessor had assessed Mr Nguyen to have 17% WPI overall relating to his thoracic spine but after making a deduction of 50% recorded that Mr Nguyen’s degree of permanent impairment relating to his thoracic spine resulting from his injury was 8% WPI. Real Pet Food noted that 50% of 17 is 8.5, which if the Medical Assessor correctly rounded up this figure, would have produced 9% WPI.
With respect to the Medical Assessor’s assessment of Mr Nguyen’s permanent impairment relating to his lumbar spine Real Pet Food submitted that it is unclear how the Medical Assessor applied the modifiers in Table 4.2 of the Guidelines. Real Pet Food submitted that had the Medical Assessor correctly applied the modifiers the result of 25% WPI ought to have been obtained.
In response to Real Pet Food’s submission in support of its appeal against the medical assessment, Mr Nguyen agreed with the submissions it made regarding the rounding error. Mr Nguyen repeated that he relied on his submissions in his appeal against the medical assessment that the deduction under s323 in this case was excessive.
Mr Nguyen submitted that the Medical Assessor correctly applied Table 4.2 of the Guidelines.
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.
Mr Nguyen’s injury to his spine was as a consequence of the work he did as a forklift driver over the course of around 40 years from the age of either 23 or 24. In such circumstance, the pre-existing condition for which a deduction can be made under s 323(1) of the 1998 Act, must be a condition that Mr Nguyen had at the start of his employment as a forklift driver.[3] Section 323(1) cannot be engaged if the condition is a co-existing condition.[4]
[3] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen) at [47]-[58]; Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211; Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 at [85]-[92].
[4] Cullen at [43].
A permanent impairment a worker has may result from more than one cause. That is, more than one factor may combine together to result in the impairment. Hence, the impairment may be caused from both a work injury a worker suffers and which falls within the definition of s 4(b) of the 1987 Act, as is the case here, and also a co-existing condition that the worker develops either over the same course of time or part of that time. Both may contribute materially to the worker’s permanent impairment.[5]
[5] Calman v Commissioner of Police [1999] HCA 60 (Calman) at [38]-[39], which dealt with an incapacity resulting from injury but the principle discussed therein is germane for a permanent impairment resulting from a work injury.
There is no express provision within the 1998 Act that requires, in the circumstance where a worker’s permanent impairment is both the consequence of a work injury and a co-existing condition, an apportionment of impairment be made between the work injury and the co-existing condition when assessing the degree of the worker’s permanent impairment from his or her injury. In such circumstance, common law principles will apply when assessing the degree of permanent impairment that a worker has resulting from the work injury the worker has suffered.[6] Thus where both a work injury and a co-existing condition both combine in an inextricable way to cause the worker’s permanent impairment, there will be no deduction or apportionment on account of the co-existing condition when assessing the degree of the worker’s permanent impairment from the work injury. It is only where a worker’s work injury involves no element of aggravation of the co-existing condition and the worker has a permanent impairment from that co-existing condition unrelated to the work injury that there could be an apportionment between both the pre-existing and the work injury.[7] That is, and to use a worker’s lumbar spine as an example, if the worker had a co-existing condition in his or her lumbar spine that resulted in the worker having a permanent impairment and the worker also suffered a work injury resulting in a separate and unrelated permanent impairment in the worker’s lumbar spine, then there can be an apportionment of the worker’s overall impairment based on common law principles.
[6] Secretary, NSW Department of Education v Johnson [2019] NSWCA 321 at [49]-[55].
[7] Johnson at [70], [126].
In this case, there is no evidence that establishes Mr Nguyen had spondylosis in any region of his spine at the time he commenced his employment with Real Pet Food. The radiological investigations Mr Nguyen had subsequent to his suffering symptoms from 2016 revealed that he had extensive degenerative disease in all areas of his spine. But this evidence does not allow a finding to be made that in all likelihood the process by which that degenerative disease developed had commenced prior to Mr Nguyen starting his employment with Real Pet Food. The Medical Assessor was consequently wrong to find that the spondylosis in Mr Nguyen’s spine was a pre-existing condition and, in turn, the Medical Assessor was wrong to make a deduction under s 323(1) of the 1998 Act for a proportion of any permanent impairment due to that condition.
The degenerative disease in Mr Nguyen’s spine that resulted in spondylosis in all regions of his spine, would have initiated some time after the commenced his employment with Real Pet Food. In other words, it was a co-existing condition, not a pre-existing condition. The condition would have progressed in accordance with its normal pathological process. It was also aggravated by Mr Nguyen’s work with Real Pet Food and the rate of its progress was accelerated by the work he did. Both his co-existing condition of spinal spondylosis and his work injury in the form of an aggravation and acceleration of that degenerative disease resulted in the need for the surgery he has had, and by reference to which his permanent impairment has been rated. Both have materially contributed to his permanent impairment. Consequently, and for the reasons discussed at [44], there can be no apportionment of his permanent impairment between the two causes.
Consequently, and leaving aside for the moment the issue of Scheuermann’s disease in Mr Nguyen’s thoracic spine, the permanent impairment that Mr Nguyen has in his spine due to both his work injury and the degenerative disease in the form of spinal spondylosis is to be attributed to his work injury. There can be no deduction because the degenerative disease was not existing at the commencement of his employment with Real Pet Food, and there can be no apportionment because both his work injury and the spinal spondylosis together have resulted in his impairment.
The Appeal Panel does not accept Mr Nguyen’s submission that the Medical Assessor relied on Dr Smith’s opinion when concluding that Mr Nguyen had Scheuermann’s disease in his thoracic spine. In the Appeal Panel’s view it is apparent that the Medical Assessor read all the material that was before him, which included the reports on the several radiological investigations Mr Nguyen has had done, and specifically the MRI scans of his whole spine done on 29 August 2020 and 19 January 2021. It seems to the Appeal Panel that the Medical Assessor based his conclusion that Mr Nguyen has Scheuermann’s disease in his thoracic spine on those particular investigations.
Scheuermann’s disease is a condition where vertebra in the spine become wedge shaped. This occurs during adolescence. As the Medical Assessor noted it is a developmental condition. It causes a rounding of the upper back, that is a kyphosis. Mr Nguyen would have had this condition prior to the commencement of his employment with Real Pet Food. However, the Medical Assessor was wrong to conclude that a proportion of Mr Nguyen’s permanent impairment relating to his thoracic spine was due to that condition. It did not contribute to his thoracic spondylosis. It did not contribute to Mr Nguyen’s need for surgery on his thoracic spine. Simply put, it did not result in any proportion of Mr Nguyen’s permanent impairment relating to his thoracic spine. Insofar as the deduction the Medical Assessor made when assessing the degree of Mr Nguyen’s permanent impairment from the injury to his thoracic spine under s 323(1) related to Mr Nguyen’s pre-existing Scheuermann’s disease, the Medical Assessor consequently made an error.
In summary, the Medical Assessor erred by engaging s 323(1) because the only pre-existing condition Mr Nguyen had did not contribute any proportion of the permanent impairment Mr Nguyen has as a result of his injury.
As both parties noted the Medical Assessor did make an error by rounding down the deduction he made with respect to the assessment of Mr Nguyen’s permanent impairment relating to his thoracic spine. However, that is otiose given that s 323(1) ought not to have been engaged at all.
Turning now to the Medical Assessor’s explanation for his rating that Mr Nguyen has 31% WPI relating to his lumbar spine, the Appeal Panel agrees with the submissions of Real Pet Food. Mr Nguyen, because he had a spinal fusion of his lumbar spine, is to be rated by reference to diagnostic related estimate (DRE) Category IV in Table 15-3 of AMA 5. That is in accordance with paragraph 4.37 of the Guidelines. That provides for a rating of permanent impairment between 20 and 23% WPI, depending upon the effect Mr Nguyen’s lumbar spine impairment has on his activities of daily living. The Medical Assessor added 2% WPI for that, in accordance with the criteria of paragraphs 4.33-4.35 of the Guidelines. Neither party took issue with that.
Paragraph 4.37 of the Guidelines provide for additional ratings of impairment to be made in accordance with Table 4.2 within that paragraph. That table provides 3% WPI to be combined with the rating made by reference to Table 15-3 of AMA5 and the impact of Mr Nguyen’s impairment on his activities of daily living, provided Mr Nguyen has residual symptoms and radiculopathy after his surgery. The Medical Assessor found he did, and neither party has challenged that.
Table 4.2 also allows for 1% WPI to be added for each additional level of Mr Nguyen’s lumbar spine upon which he had surgery. Here he had surgery at three levels of his lumbar spine, and hence a further 2% WPI is to be added.
The total ratings to be made under Table 4.2 therefore amount to 5% WPI. When that is combined with 22% WPI, which is the rating of Mr Nguyen’s permanent impairment by reference to Table 15-3 of AMA 5 after adding 2% WPI for the impact of his injury on his activities of daily living, the result is 26% WPI, as Real Pet Food submitted.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 January 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W27756/24 |
Applicant: | Van Vuong Nguyen |
Respondent: | Real Pet Food Company Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Rob Kuru 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 10/09/2020 | Paragraphs 4.34 and 4.37 Table 4.2 | Table 15-5 | 17% | - | 17% |
| Thoracic spine | Table 15-4 | 17% | - | 17% | ||
| Lumbar spine | Table 15-3 | 26% | - | 26% | ||
| Scarring | Table 14.2 | 1% | - | 1% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 50% | |||||
0
8
0