Orange City Council v Maric

[2022] NSWPICMP 19

DETERMINATION OF APPEAL PANEL
CITATION:	Orange City Council v Maric [2022] NSWPICMP 19
APPELLANT:	Orange City Council
RESPONDENT:	Joseph Zeiko Maric
APPEAL PANEL:	Member Jane Peacock Dr Brian Noll Dr Gregory McGroder
DATE OF DECISION:	15 February 2022
CATCHWORDS:	WORKERS COMPENSATION- Lumbar spine injury; appeal limited to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; Medical Assessor had deducted one-tenth under section 323 of the 1998 Act to account for the pre-existing injury, abnormality or condition; the employer appealed the extent of the deduction; the Appeal found that the deduction of one-tenth was not at odds with the available evidence and confirmed the Medical Assessment Certificate (MAC); Held- MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 22 November 2021 Orange City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Robert Kuru, a MA, who issued a Medical Assessment Certificate (MAC) on 26 October 2021.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the assessment was made on the basis of incorrect criteria,

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. 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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not, for the reasons set out below find error. Absent a finding of error the Appeal Panel has no power to require that the worker be re-examined: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the MA as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·    Date of injury:   04/04/2017 (deemed)

   ·    Body parts/systems referred:        Cervical spine

   Lumbar spine

   Right lower extremity

   ·    Method of assessment:                  Whole Person Impairment”

4. The MA issued a MAC certifying as follows:

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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Cervical spine	04/04/17 (deemed)	Page 29 Paragraph 4.37 Page 28 Paragraph 4.34	Page 392 Table 15.5	26%	1/10	23%
2. Lumbar spine			Page 384 Table 15.3	22%	1/10	20%
3. Right Lower Extremity	04/04/17 (deemed)	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					38%

1. The employer appealed.

2. There was no complaint on appeal about the overall assessments of permanent impairment.

3. The complaint on appeal is limited to the deductible proportion under s 323 in respect of the lumbar spine. The MA made a deduction of one-tenth. The MA accepted that there had been pre-existing degenerative spine disease but found that the deduction ‘… is difficult or costly to determine’. The appellant submitted that the MA erred by failing to apply a greater deduction than one-tenth. In summary, the appellant submitted that a deduction of one-tenth was at odds with the available evidence which included the following:

   ·        There is evidence of a prior injury to the lumbar spine sustained on or about 3 October 1995 due to ‘nature and conditions’ of his work as a shoe repairer. A CT scan of the lumbar spine on 5 January 1996 was reported to show a severe generalised disc protrusion at L5/S1 and minor degenerative changes at L5/S1.

   ·        In a report dated 20 February 1996 a pain management specialist, Dr Graeme Walmsley, indicated that the worker had chronic low back pain since October 1995 with symptoms referable to the lower extremities.

   ·        In a report dated 28 March 1996 Dr David Meachin, an orthopaedic surgeon reported complaint of lower back pain and a CT scan indicating an L5/S1 disc protrusion.

   ·        Dr Horsley reported on 15 April 1996 and 26 April 1996 a recurrence of chronic low back pain and bilateral sciatica. The worker had an epidural steroid injection on 23 April 1996. This was reported to give two weeks of pain relief but recurrence of symptoms following return to work.

   ·        A physiotherapy report of Kim Murray dated 24 May 1996 referred to ‘back conditioning classes to improve muscle strength’.

   ·        A physiotherapy report on 16 November 1998 (2.5 years later) from Judith Hansen referred to five treatments over a period of one week for back pain and spasm.

   ·        In a report dated 20 November 1998 Dr Cooray, general practitioner (GP), referred to an exacerbation of past lumbar disc lesion; swimming hydrotherapy and supervised exercises recommended.

   ·        On 1 December 1998 Dr Cooray referred to onset of back pain six weeks prior to 6 November 1998 (namely 25 September 1998) after tripping on a concrete footpath and hurting his ankle and back. Following this the worker was reported to have ongoing lower back pain radiating to the right leg.

4. The appellant submitted that the contemporaneous medical evidence reveals the severity of the prior injuries to the lumbar spine which predated the worker’s employment with the appellant employer commencing in 2008. The MA failed to refer to this evidence which would support making a deduction greater than one-tenth.

5. In summary, Joseph Zeilo Maric (the respondent) submitted that the MA did not err or make an assessment on the basis of incorrect criteria and that the MAC should be confirmed. The respondent submitted that the available evidence does not support a deduction greater than one-tenth for any pre-existing condition, injury or abnormality. The respondent submitted that the preponderance of the evidence is that the worker had no impairment prior to commencement of his employment with the appellant or at least none that warrants a deduction of greater than one-tenth. The respondent submitted that the worker was given a full pre-employment clearance following medical examination, had played football in Orange for many years prior to the commencement of employment with the appellant, and had worked unrestricted as a parking attendant for several years prior to the onset of symptoms in his lower back. The respondent referred to the following evidence in support of his submissions:

   ·        pre-employment screening results (Application to Resolve a Dispute (ARD) pages 148-161);

   ·        statement of Benjamin Lee Miller (ARD page 12);

   ·        statement of Zoran Mustac (ARD page 13), and

   ·        statement of worker (ARD page 2 paragraph 9).

6. It is well settled that a deduction under s 323 can only be applied if, on the available evidence, the pre-existing injury, condition, or abnormality has contributed to the overall level of permanent impairment assessed. Here it is accepted that a deduction should be applied. The MA applied a one-tenth deduction on the basis that the deduction was difficult or costly to determine. The appellant submitted that this was at odds with the available evidence. After a thorough review of the evidence, the Appeal Panel is not persuaded by this submission. The respondent commenced working for the appellant in 2008. The respondent gave evidence that he had experienced no low back pain from 1995 through to 2008 when he commenced employment with the appellant. All the medical evidence cited by the appellant related to complaints of back and lower extremity symptoms up to December 1998 and not beyond. The Appeal Panel can discern no error in the application of a deduction of one-tenth by the MA and accordingly the MAC will be confirmed.

7. For these reasons, the Appeal Panel has determined that the MAC issued on 26 October 2021 should be confirmed.