Otis Elevator Company Pty Ltd v Leon Michael Krajewski
[2022] NSWPICMP 379
•4 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Otis Elevator Company Pty Ltd v Leon Michael Krajewski [2022] NSWPICMP 379 |
| APPELLANT: | Craig Edward McInerney |
| RESPONDENT: | Glasson Body Works Pty Ltd |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| MEDICAL ASSESSOR: | Dr Roger Pillemer |
| DATE OF DECISION: | 4 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant submits that the Medical Assessor (MA) erred in two respects, namely in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of the lumbar spine and the left upper extremity (shoulder) and included in his assessment of the left upper extremity (shoulder) a non-work-related injury; Held – the Panel accepted that some deductions were warranted given the evidence of pre-existing conditions; the Panel also agreed that the MA incorrectly included in his assessment of the left upper extremity (shoulder) a non-work-related injury; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 June 2022 Craig Edward McInerney (Mr McInerney) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 June 2022.
The respondent to the appeal is Glassons Body Works 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, 4th ed
1 April 2016 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr McInerney sustained an injury to his left lower extremity, lumbar spine and scarring (TEMSKI) on 7 August 2019.
The matter was referred to the MA, Dr Todd Gothelf, on 16 March 2022 for assessment of whole person impairment (WPI) of the left lower extremity, the lumbar spine and scarring (date of injury 7 August 2019).
The MA examined Mr McInerney on 26 May 2022 and assessed 0% WPI of the left lower extremity, 6% of the lumbar spine and 0% for the skin/scarring in respect of the injury on 7 August 2019.
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 McInerney requested 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 McInerney 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.
Medical Assessment Certificate
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 McInerney’s submissions include the following:
(a) The MAC contained demonstrable error and was made on the basis of incorrect criteria.
(b) The MA incorrectly applied a deduction for previous injury or pre-existing condition or abnormality (s 323 (2) of the 1998 Act and s 1.28 of the Guidelines).
(c) The task of the MA was, first to examine all medical evidence available to him and second to examine Mr McInerney and determine the degree of permanent impairment and make an appropriate deduction (which is not conceded) where required.
(d) Dr James Bodel, in his medical report dated 21 May 2021, determined that Mr McInerney had a good recovery and did not have any residual impairment as a result of the original injury. Dr Bodel, therefore, did not apply a deduction.
(e) The MA in his MAC acknowledged that Mr McInerney “made a complete recovery from surgery and returned to full duty truck driving without experiencing lower back or leg pain”. Furthermore, in his examination, the MA noted that the previous injury caused right sided back pain with pain down the right leg. The MA noted that as a result of the subject injury Mr McInerney suffers lower back pain and “occasional pain down the left leg’ and ‘some numbness in the left leg.”
(f) At page 6 of the MAC, under “Deductions”, the MA opined: “For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.” Then at paragraph 2, under the same subheading, the MA stated: “Thus a 10% WPI applies. 10% subtracted from 16% yields 6% WPI.” The MA failed to apply the 1/10th deduction correctly.
(g) Despite acknowledging that the appropriate deduction for the subject injury is 1/10th the MA proceeded to subtract a total of 10% WPI from the 16% WPI resulting in a final WPI of 6%. Furthermore, the MA did does not provide valid or adequate reasoning for his conclusions.
(h) The MA has a statutory obligation to provide reasons pursuant to s 325 of the 1998 Act. These principals were discussed in El Masri v Woolworths Ltd [2014] NSWSC 1344 where Campbell J held at [50]:
“As I have said, and at the risk of repeating myself unduly, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. Although, as Ms Allars reminded me, Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, especially if one has regard to what was said by the Panel at paragraph 18 which I will not further set out.”
(i) The failure to provide valid reasoning as to why the MA came to the conclusion that was contrary to the correct application of a deduction of WPI due to a previous injury constitutes a demonstrable error.
(j) The matter should be referred to a Medical Appeal Panel for assessment of WPI in accordance with the AMA 5 and the Guidelines.
The respondent’s submissions include the following:
(a) The MA “devoted significant time” in assessing the appropriate deduction to be applied pursuant to s 323 of the 1998 Act having regard to Mr McInerney’s history of previous injury to the lumbar spine by way of an L4/5 disc protrusion and nerve root irritation / impingement bilaterally, for which Mr McInerney underwent surgery in or about 2014.
(b) Mr McInerney erroneously submitted that the MA “failed to apply the 1/10th deduction correctly”. In relation to the issue as to the relevant deduction pursuant to s 323 of the 1998 Act, the MA noted as follows:
“Deductions
According to the Guidelines 4th edition, section 1.27 and 1.28, page 6, 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.
In this case, there was a pre-existing L4/5 disc herniation with a surgery performed for a disc herniation. The pre-existing impairment can therefore be calculated. Section 4.34 the Guides indicates a DRE III. Table 15-3 p. 384 AMA5 is used to indicate a 10-13% WPI. From information provided to me, I consider that ADLs were not effected (sic) preinjury and thus no loading applies. Considering Table 4.2 modifiers, there was no residual radiculopathy and only one surgery and one level, so no further impairment applies. Thus a 10% WPI applies. 10% subtracted from 16% yields 6% WPI.”
(c) Accordingly, the MA determined that he was in a position to calculate the level of pre-existing impairment and did so. In other words, he considered it was “at odds with the available evidence” to apply the 1/10th deduction and clearly laid out his path of reasoning in doing so.
(d) The second ground of Mr McInerney’s submissions relates to an assertion that the MA failed to provide reasons pursuant to s 325 of the 1998 Act by reference to the principles in El Masri v Woolworths Limited [2014] NSWSC 1344.
(e) The principles in El Masri were also considered by the High Court in Wingfoot Australia Partners Pty Limited v Kochak [2013] HCA 43. The High Court determined that the MA must “explain the actual path of reasoning” which formed the basis of the deduction applied.
(f) Accordingly, the MA provided ample and very specific reasoning as to the basis upon which he considered the 1/10th deduction was “at odds with the available evidence” and specifically laid out and explained the “actual path of reasoning” in deducting 10% WPI from the overall assessment of 16% WPI, to yield his final assessment of 6% WPI.
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:
“Mr McInerney indicated that he reported the injury 7 August 2019. Mr McInerney stated that the seat in his truck was faulty and lopsided. The pain was present for two months prior to the subject injury and gradually worsened. He started to experience pain in his lower back radiating down his left leg.
Mr McInerney consulted his GP 19 August 2019 at Peter Street Medical Centre and was referred for an MRI and was prescribed pain relief medication. The MRI was performed 29 August 2019 which revealed a L4/5 disc protrusion compressing the nerve root. He was prescribed Targin and Endone for pain relief. Mr McInerney was referred to Dr Jacob Fairhall, Neurosurgeon. Surgery was performed 11 December 2019 for a microdiscectomy followed by physiotherapy”.
Under “Details of any previous or subsequent accidents, injuries or conditions” the MA wrote:
“Mr McInerney stated that prior to his position at Glasson’s Smash Repairs he worked at P & N Logistics as a truck driver. Around 16 January 2014 he slipped when getting out of the truck and felt immediate pain in his lower back. Mr McInerney had a history of back surgery in 2014 for an L4-L5 disc protrusion. He stated that the problem was on the right side and down the right leg. He made a complete recovery from surgery and returned to full duty truck driving without experiencing lower back pain or leg pain.
Mr McInerney denied any other previous work related injuries and denied any major motor accidents resulting in injury. He denied any symptoms with his lower back prior to the subject injury 7 August 2019.”
Under “Work History”, the MA wrote:
“Mr McInerney was born in Wagga Wagga. He completed high school to year 10. Mr McInerney undertook various jobs with interstate driving for Days Logistics for approximately 12 months. He commenced employment with Glasson’s Smash Repairs as a truck driver in approximately May 2019, four months prior to the subject injury. His hours were forty hours a week. His position involved local truck driving. Daily tasks were essentially driving trucks and towing vehicles.
After the subject injury 7 August 2019 he had to stop work. He returned to work after surgery March 2020 and continued to work until June 2020 when he resigned as he could no longer handle the workload. Mr McInerney then worked for Steel Line as a truck driver. He commenced employment 16 March 2021. Mr McInerney is still at the same job working full hours. He is tolerating the position well.
Mr McInerney feels he is unable to return to his pre-injury job as the position was more physical and the back hurts too much with activities.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Lumbar Spine Strain, L4/5 disc herniation with L5 nerve root impingement, aggravation of a pre-existing L4/5 disc protrusion. Surgery was performed 11 December 2019 for a microdiscectomy”.
Under “Reasons for Assessment”, at 10(c) the MA wrote:
“Lumbar Spine
Section 4.37 p. 29 the Guides is used. Operations for radiculopathy are considered a DRE III category. Table 15-3 p. 384 AMA5 is used to indicate a DRE III is 10-13% WPI. Section 4.34 p. 28 the Guides is used to assess ADLs. The injury has affected home care and thus a 2% loading is reasonable, resulting in a 12% WPI. Table 4.2 modifiers are considered. With physical findings of a weak EHL and sensation loss and reticular radiculopathy is present that satisfies section 4.27 criteria. Thus a 3% applies. There were two surgeries included the pre-existing surgery, thus a 2% also applies. 5% is combined with 12% to yield 16% WPI.
Deductions
According to the Guidelines 4th edition, section 1.27 and 1.28, page 6, 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 portion” 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.
In this case, there was a pre-existing L4/5 disc herniation with a surgery performed for a disc herniation. The pre-existing impairment can therefore be calculated. Section 4.34 the Guides indicates a DRE III. Table 15-3 p. 384 AMA5 is used to indicate a 10-13% WPI. From information provided to me, I consider that ADLs were not effected pre-injury and thus no loading applies. Considering Table 4.2 modifiers, there was no residual radiculopathy and only one surgery and one level, so no further impairment applies. Thus a 10% WPI applies. 10% subtracted from 16% yields 6% WPI.”
In commenting on the other medical opinions and findings, the MA wrote:
“I have reviewed the report of Dr James Bodel 21 May 2021. I agree with a DRE III category and with 2% loading for ADLs. I agree with a persistent radiculopathy to apply 3%. Our calculations differ at this stage. Dr Bodel is of the opinion that the previous lumbar spine surgery recovered and therefore no deduction is applicable. I disagree with this line of thinking. The calculation of impairment for the lumbar spine after surgery does not rely on the presence of symptoms or recovery of function. A pre-existing surgery was performed and therefore there is a pre-existing impairment as per the SIRA Guides.
I have reviewed the report of Dr Vidyasagar Casikar dated 1 December 2021. I agree with Dr Casikar with a DRE III and 2% loading and 3% for residual radiculopathy. I also agreed with Dr Casikar with 0% for scarring. Dr Casikar was of the opinion that a deduction was reasonable for a pre-existing rateable laminectomy, and determined a 50% deduction without an explanation of determining this amount. This approach was different to my approach in that I chose to calculate the impairment that was pre-existing and then deducted the pre-existing impairment from the current impairment. As per section 1.27 the SIRA Guides, ‘the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition.’ The Guides also states ‘The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existing the injury.’ According with these guides, I chose to calculate the preexisting impairment and then deduct this from the current impairment”.
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) Lumbar Spine
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Previous L4/5 discectomy
c. In my opinion the deductible proportion is 5/8 for the following reasons:
(i) According to the Guidelines 4th edition, section 1.27 and 1.28, page 6, 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 portion’ 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.
In this case, there was a pre-existing L4/5 disc herniation with a surgery performed for a disc herniation. The pre-existing impairment can therefore be calculated. Section 4.34 the Guides indicates a DRE III. Table 15-3 p. 384 AMA5 is used to indicate a 10-13% WPI. I consider that ADLs were not effected pre-injury and thus no loading applies. Considering Table 4.2 modifiers, there was no residual radiculopathy and only one surgery and one level, so no further impairment applies.
Thus a 10% WPI applies. As per the guides, this impairment is to be deducted from the impairment. 10% subtracted from 16% yields 6% WPI.”
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
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 v Wenaline Pty Ltd (2010) NSWSC 78 (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.”
The appellant submitted that the MA incorrectly applied a deduction for previous injury or pre-existing condition or abnormality (s 323 (2) of the 1998 Act and s1.28 of the Guidelines).
The Appeal Panel accepted that the MA made an error in that he chose to calculate the impairment that was pre-existing and then deducted the pre-existing impairment from the current impairment. The MA made an assumption that even though the treatment of the first injury on 16 January 2014 to Mr McInerney’s spine had succeeded, the very fact of the existence of that prior injury, ‘irrespective of outcome’, resulted in an impairment which must have contributed to the impairment which arose after the second injury on 7 August 2019. 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.
Further, in Table 2 under “WPI deduction pursuant to s323 for pre-existing injury, condition or abnormality (expressed as a fraction)”, the MA inserted 10% into the Table but stated in Part 11 of the MAC that the deductible proportion was 5/8ths. The MA did not explain this inconsistency. The Appeal Panel was satisfied that the MA failed to apply the deductable proportion correctly.
The Appeal Panel reviewed the evidence in this matter.
Mr McInerney, in a statement dated 7 February 2022, said that on 16 January 2014 he slipped when getting out of a truck at work and felt immediate pain in his lower back. He said that he then underwent surgery in 2014 for a right L4-S1 disc protrusion. He stated that he made a full recovery from this surgery and in fact undertook a lot of interstate truck driving without experiencing symptoms in his lower back.
Mr McInerney stated that he commenced employment with the respondent in about May 2019 performing local truck driving. He stated that in about June 2019 he informed the respondent that the seat in the truck was faulty and lopsided and requested it be fixed as he had undergone back surgery in 2014. He stated that the seat was not fixed and on 7 August 2019 he began to experience pain in the low back radiating down his left leg when at work.
In a report dated 21 May 2021 Dr James Bodel, Orthopaedic Surgeon, wrote:
“Mr McInerney has suffered a recurrence of his disc injury at the L4/5 level as a result of the incident that occurred at work on 07 August 2019. He had previously ruptured the disc at that level in 2014 but he had recovered completely and returned to his truck driving work before the new injury.
Clearly this gentleman has had previous injury at the same level at the L4/5 level. He had a good recovery from that surgical procedure and came to his current place of employment without any residual impairment as a result of the original injury.
…
In accordance with Section 323 therefore, he has no basis for a deduction for pre-existing impairment”.
In a report dated 1 December 2021, Dr Vidyasagar Casikar, Neurosurgeon, noted that in January 2014, Dr Pell performed an L4/5 laminectomy and that the outcome of the surgery was good. Dr Casikar wrote:
Dr Bodel in his assessment for the Plaintiff's lawyers has given a total impairment of
16%. I agree with his basic impairment of 10% and 2% for the absent activities of daily living and the 3% for the radiculopathy because he has hypoaesthesia over the left S1 dermatome. He has given 1 % for scar tissue which I am not sure is acceptable because the scar formation is normal for the couple of surgeries he had therefore I do not believe the TEMSKI scale impairment is acceptable.
My major concern about Dr Bodel's assessment is that he has not made any deduction for the previous surgery. A previous laminectomy is rateable and therefore requires a deduction. In my opinion, at least 50% of his impairment should be deducted because of the pre-existing rateable laminectomy. In my opinion this is the major difference of opinion.
….
I have made a 50% apportionment for the previous spinal surgery.
Permanent impairment arising from the pre-existing condition, namely the pre-existing surgery, is in my opinion at least 50%. I have made this deduction in my assessment of permanent impairment.
I cannot comment further about the existence of degenerative disease because I have no information about the radiological findings”.
The Appeal Panel was satisfied that a proportion of the permanent impairment present after the second injury was due to the earlier injury in 2014. The Appeal Panel noted that Mr McInerney underwent surgery in 2014 following the earlier injury at the L4/5 level which was the same level that was injured in August 2019. The outcome of the L4/5 laminectomy was good and Mr McInerney was able to return to truck driving including interstate driving. From the clinical notes of the general practitioner, Dr Antoun, it appeared that although Mr McInerney has some “flare ups” of pain following the surgery in 2014 during 2015, there were no clinical entries relating to pain in the lumbar spine between 13 April 2016 and 19 August 2019 when Mr McInerney presented with lower back pain going to the left leg. However, the injury on 7 August 2019 was a recurrent disc protrusion at L4/5 and the Appeal Panel was satisfied that the L4/5 disc was already weakened following the surgery in 2014 at that level. Further, the driving of the truck on 7 August 2019 involved sitting is a defective seat as such was not a high impact injury.
After considering all the factors, the Appeal Panel considered that a deduction of 1/5th was appropriate. A deduction of 1/10th would be at odds with the evidence.
The Appeal Panel noted a further error in the MAC. The Appeal Panel in assessing permanent impairment and issuing a new certificate must have regard to all of the applicable Guidelines. InRoads and Maritime Services v Rodger Wilson 2016] NSWSC 1499, Fagan J said that if a ground of appeal raised by an appellant has been made out, error having been identified which has had an impact on the proper assessment of the impairment, in issuing its new certificate the Panel must have regard to all of the applicable Guides, in arriving at a basis for that certificate, which will stand in place of that issued by the medical specialist. The MA had added an extra 2% WPI for the” two surgeries including the pre-existing surgery”. No addition should have been made for the surgery following the injury in 2014.
Therefore, as Mr McInerney was placed in DRE Category III, the assessment of the lumbar spine with the addition of 2% WPI for activities of daily living gives a total of 12% WPI. To this an additional 3% should be added for residual radiculopathy which results in a total of 15% WPI. A deduction of 1/5th for the pre-existing injury results in aa assessment of 12% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
3 June 2022 should be revoked.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W929/22 |
Applicant: | Craig Edward McInerney |
Respondent: | Glassons Body Works 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 Todd Gothelf 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) |
| Lumbar Spine | 7/8/19 | 4.34, 4.37 Table 4.2, 4.27 | 15.3 | 15% | 1/5th | 12% |
| Left Lower Extremity | 7/8/19 | 0% | 0% | |||
| Skin/Scarring | 7/8/19 | 14.1 | 0% | 0% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
0
4
0