Pearce v Graymont (Australia) Pty Ltd
[2025] NSWPICMP 71
•7 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pearce v Graymont (Australia) Pty Ltd [2025] NSWPICMP 71 |
| APPELLANT: | Ian David Pearce |
| RESPONDENT: | Graymont (Australia) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 7 February 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor erred in allowance for the effect on activities of daily living (ADL’s) and failed to conduct a complete and adequate examination; Held – Appeal Panel agreed; re-examination required; MAC revoked and new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2024 Ian David Pearce (the appellant) lodged an 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 18 June 2024.
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, 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.
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).
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 the worker should undergo a further medical examination because of the issues raised by the appellant regarding the issue of activities of daily living (ADL’s).
EVIDENCE
Documentary 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.
Further medical examination
Dr James Bodel of the Appeal Panel conducted an examination of the worker on 9 January 2025 and reported to the Appeal Panel.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his allowance for the effect on ADL’s and failed to conduct a complete and adequate examination.
In reply, Graymont (Australia) Pty Ltd (the respondent) submits that no errors were made.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of an injury to the lumbar spine and cervical spine resulting from a deemed date of injury of 30 June 2021.
The Medical Assessor obtained the following history:
“Mr Pearce had been working in the mines for years as a Plant Operator. Over years, due to repetitive jarring on rough terrain, he started developing a problem in his neck radiating to his shoulders and then pain in his lower back radiating down his hips. He says his symptoms progressively deteriorated over a 4 or 5 year period.”
The Medical Assessor then set out details of Mr Pearce’s present treatment before noting present symptoms as follows:
“Neck
For the neck, he gets pain along the left hand side of the neck that radiates to the medial half of the trapezius. He will occasionally get pain on the right. He gets flares of neck pain with activity and says his eyesight deteriorates and he gets headaches. This could come on playing with his children or pushing a shopping trolley. He says every now and then he gets uncontrolled jolts through his body particularly at physiotherapy.
Lower Back
He has pain in his lower back which radiates from the midline to the right hand side. His pain is made worse sitting and driving. He notes he feels his hip are stiff and when he tries to abduct his hips, he develops cracking in them.
He tries to walk for exercise. He said he can walk 300m with his back pain being manageable.”
The MA then set out details of the impact of his injury on his social activities and ADL’s and said:
“Mr Pearce previously enjoyed flying which he is no longer able to do. He also enjoyed rebuilding vintage aircraft which he is no longer able to do.”
Findings on examination were reported as follows:
“On examination, he was a well-looking man in no obvious distress.
Romberg’s test is negative. Trendelenlburg’s test is normal. Heel-toe stance is normal. Neurological examination of the upper limbs demonstrated symmetrical reflexes with a negative Hoffman test. Peripheral power was intact. There was no intrinsic fatigue or ulnar escape.
Lower limb reflexes similarly are symmetrical with down going Babinskis. Peripheral power is intact. Straight leg raise is to 90° in the sitting position without tension signs.
Mr Pearce is unwilling to rotate his neck to the left essentially beyond neutral in pain. He has reasonable rotation to the right. Flexion and extension are also reasonable.
The lumbar spine demonstrates flexion to the knees with him having to climb up his thighs. Lateral flexion is to the proximal third of the thigh.”
He then noted the radiological material he had before summarising the injuries and diagnoses as follows:
“Mr Pearce developed neck and back pain in the course of his work as a Plant Operator. Imaging has demonstrated some minor background degenerative change in his cervical and lumbar spine without evidence of acute injury.”
The Medical Assessor assessed 6% WPI in respect of the cervical spine and 5% of the lumbar spine, from which he deducted 10% in respect of a pre-existing condition, leaving a total WPI of 10%.
He explained his calculations as follows:
“The cervical spine is assessed according to AMA-5, page 392, Table 15.5. On the basis of there being asymmetrical range of motion and dysmetria the cervical spine is assessed as DRE Cervical Category II (5% whole person impairment).
According to SIRA, page 28, paragraph 4.34, a further 1% is added for restriction of activities of daily living.
The lumbar spine is assessed according to AMA-5, page 384, Table 15.3. Again, finding clinical evidence of dysmetria in flexion and extension, the lumbar spine is assessed as DRE Category II (5% whole person impairment).”
He then turned to consider the other medical opinions and evidence and said:
“With respect to the report by Dr New dated 10/08/2022, I disagree with the assessment of the lumbar spine as DRE Lumbar Category III. Dr New in his clinical health history does state ‘he has had no radicular pain per se.’ His imaging does not demonstrate compressive pathology. Mr Pearce does not meet the diagnostic criteria for radiculopathy as per SIRA, page 27, paragraph 4.27.
With respect to the cervical spine, again Dr New has assessed Mr Pearce as DRE Cervical Category III where there is no evidence of radiculopathy. I have assessed 1% rather than 2% for restriction of activities of daily living.
With respect to the report by Dr Hughes dated 16/01/2023, I note Dr Hughes has not assessed whole person impairment on the basis that the findings on imaging have been attributed to a degenerative condition unrelated to work.”
Although stating that he had allowed 1% “for restriction of activities of daily living” there is no reference to that in his final assessment.
The appellant’s submissions
These are as follows:
(a) the only reasons given by the Medical Assessor were not reasons at all.
(b) They do no more than state the Medical Assessor’s conclusion without exposing the path of reasoning, nor the basis upon which the Medical Assessor chose 1% rather than 2% or 3%. The reader cannot be satisfied that the Medical Assessor had proper regard to the requirements of Clauses 4.33 to 4.35 of the Guidelines because he did not refer to their requirements at all. It was not sufficient for the Medical Assessor to simply say he applied Clause 4.34 without providing any reason explaining why.
(c) His record of the respondent’s restrictions was entirely at odds with the information contained the respondent’s statement, which was before the Medical Assessor, and which evidenced far greater impacts on ADL’s than these two sentences.
(d) The respondent’s statement of 25 March 2024 clearly outlined the numerous impacts of his spinal injuries upon his ADL’s which included restrictions of homecare (Stage 2 – 2% WPI) and self-care (Stage 3 – 3% WPI).
(e) These restrictions recorded in the respondent’s statement clearly exceed the 1% category for ADL’s. They plainly put the respondent in the 3% category. They are completely at-odds with the two sentences recorded by the Medical Assessor.
(f) It may be accepted that the Medical Assessor was not bound to accept the history given in the respondent’s statement, but if he did not accept it, he was bound to say so and why. Not only did he not reject anything contained in the statement, he failed to refer to it at all, and the reader could not be satisfied that the Medical Assessor actually read it. Given the Medical Assessor’s record of the impact on ADL’s was starkly at odds with the information contained in the respondent’s statement, the only available inference is that he did not read the statement.
(g) The duty to provide reasons in support of a determination of injury is mandated by s 325(2)(c) and (d) of the 1998 Act which provides that the certificate (c) must set out the Medical Assessor’s reasons for that assessment, and (d) set out the facts on which that assessment is based.
(h) In light of the respondent’s statement which plainly does not accord with an allowance of 1% for impact on ADL’s, it is impossible to make sense of the Medical Assessor’s determination without “filling the gaps” in his expressed path of reasoning.
(i) The Medical Assessor stated that the respondent did not satisfy the criteria for radiculopathy in respect of the cervical spine and lumbar spine, however his examination findings demonstrate that he did not test for all of these required criteria.
(j) In respect of cervical radiculopathy, there is no evidence that the Medical Assessor measured the upper limbs for muscle wasting, nor that he tested for reproducible impairment of sensation anatomically localised to an appropriate nerve root distribution. He also failed to consider whether findings on an imaging study were consistent with clinical signs.
(k) Similarly, in respect of the lumbar spine: the Medical Assessor failed to measure the lower limbs to test for muscle wasting – atrophy. He similarly failed to consider whether there was reproducible impairment of sensation anatomically localised to an appropriate spinal nerve root distribution, and he did not state whether findings on an imaging study were consistent with the clinical signs.
As indicated earlier, the respondent submitted that no errors were made.
We have carefully considered those submissions and do not intend to set them out in detail here.
In summary, the Appeal Panel agreed with the thrust of the appellant’s submissions such that we concluded that a re-examination was required.
Discussion
Dr Bodel of the Appeal Panel re-examined Mr Pearce on 9 January 2025 and reported to us as follows:
“1. The workers medical history, where it differs from previous records
The previous record as recorded is accurate. A signed and dated Statement from 25 March 2024 embellishes that somewhat.
The essence of the injury that he suffered occurred as a consequence of the heavy nature of the work that he did at ‘Sibelco Australia Pty Limited’ and ‘Graymont (Australia) Pty Ltd’. I understand that the second company took over the first company at this limestone quarry, which is near Kandos, near Bathurst.
He had worked for the two companies over a period of about four years from 2017 through until the injury, which is deemed to have occurred on 30 June 2021.
He also indicates that he had begun to develop a gradual onset of neck and back pain some considerable period of time prior to that deemed date of injury, and this was associated with the nature of his work, driving various pieces of machinery and running the whole quarry. He worked very long hours, at least four full days a week, and he estimates anywhere between 60 – 84 hours per week when he had to do overtime and weekend work as well.
In addition to driving the machinery, he had to maintain the crusher plant, which is also part of that quarry.
Dr Kuru in his history indicates his neck and back pain radiated into the shoulders from the neck, and into the hips from the back, and came on progressively over a four or five year period.
2. Additional history since the original Medical Assessment Certificate was performed
Nil.
3. Findings on clinical examination
The claimant is 52 years of age. He is 193cm tall and weighs 90kg.
There is no spinal deformity and no leg length inequality.
I observed tenderness in the trapezius muscle at the base of the neck on both sides, the right side greater than the left, with a reduced range of neck flexion, extension and rotation in all directions, which is most restricted on rotation to the left.
He has full shoulder abduction and rotation with no impingement or instability in the shoulders. He complains of discomfort in the trapezius muscles on resisted shoulder movement. There was no restriction of elbow, wrist or hand movement, and no clinical sign of radiculopathy. The reflexes are present and equal and there was no sensory loss in a dermatomal distribution, nor is there any evidence of median or ulnar nerve pathology in either upper limb.
There is tenderness on palpation of the lumbosacral junction. There is guarding on the right side. He reaches forward in flexion with his hands to the knees and there is backache at this point and also on extension, with a restricted range of lateral bending primarily to the left. There is dysmetria with 50% of the expected range of lateral bending to the left and 80% of the expected range of lateral bending to the right, as is the case in the cervical spine.
Straight leg raising is 70° on each side and limited by hamstring tightness. There was no reflex abnormality or sign of sensory impairment in the lower limbs. There are no clinical signs of radiculopathy. In particular, there is only a few millimetres of wasting in the left leg when compared with the right. The reflexes are all present and equal. There is no sensory loss in a dermatomal distribution and no weakness in ankle or knee movement.
There are no clinical signs of reflex abnormality or sensory impairment in the upper limbs.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
5. Opinion
Mr Pearce has suffered injury to the neck and the back in the manner described above. This is a nature and conditions type claim with aggravation, acceleration, exacerbation and deterioration to a disease process, being degenerative disc disease in the cervical and lumbar spines caused by the nature and conditions of his work while driving pieces of plant machinery in a limestone quarry.
I note in the documentation, and in particular his Statement, that in regards to his interference in activities of daily living that there are a number of items not taken into consideration by Dr Kuru in accordance to the appeal documents.
Dr Kuru observed that from the point of view of social activities and ADLs, that the claimant enjoyed flying, which he is no longer able to do. He also enjoyed rebuilding vintage aircraft, which he is no longer able to do.
In addition to that, his Statement confirmed that he did spend time in the Royal Australian Navy, where he gained his pilot’s licence. He also trained as an aircraft engineer and did that role as an aircraft engineer and as a line pilot for Hazelton Airlines, and his own business, Forbes Aviation, from 1992 until 2002.
From 2002 onwards, he ceased commercial flying work or work as an aircraft engineer, although he maintained his private pilot’s licence, but went to work in various mines including Clough for Seymore White, then Lake Col Gold Mine, then Holcombe, then based in Sands Logistics, and then Sibelco and Graymont. He therefore has done the plant operator work since about 2002 until 2021.
In addition to that, his mother and his stepfather, who are in their late eighties and early nineties, have a property near Temora (Morangarell) and he and his wife are now living back at that property, trying to help maintain the property for his parents.
Up until the time of his injury, he had lived nearer to the workplace in the Bathurst area, but now lives near Temora. The property is quite a large property of 2800 acres on six different titles. It has about 150 goats on it, but otherwise it has been leased out as a cropping farm. He can’t maintain it. He can’t do fencing. He can’t look after the animals because of his injury.
As a result of his clinical circumstance, I will indicate that he has a 2% loading for interference in activities of daily living on the basis of his history of incapacity associated with this injury. This attracts a 2% additional loading for interference in activities of daily living, which I would apply to the lumbar spine rating.
I also refer to the reports from Professor Charles New. Dr New found evidence of radiculopathy in the arms and in the legs at the time of his assessment clinically on 10 August 2022. I was unable to identify any sign of reflex abnormality, sensory loss in a dermatomal distribution, weakness or wasting indicative of any neurological compromise in either arm or either leg at the time of review here today.
The level of Whole Person Impairment therefore is a 5% Whole Person Impairment for the cervical spine with no additional loading for interference in activities of daily living, because of the DRE Cervical Category II level of assessable impairment, and a 7% Whole Person Impairment for the lumbar spine as a DRE Lumbar Category 2% level of assessable impairment in Table 15-3 on Page 384 of AMA5. There is the 2% loading for the interference in activities of daily living, as has been provided by others including Dr New.
I see no indication clinically for any pre-existing abnormality or condition, but I note that this has not been appealed. A one-tenth deduction therefore does apply. The one-tenth from 5% leaves a 4.5% Whole Person Impairment and that rounds back to a 5% Whole Person Impairment for the cervical spine.
A one-tenth deduction in the lumbar spine is 6.3% Whole Person Impairment and after rounding, a 6% Whole Person Impairment.
The final level of Whole Person Impairment is determined by combining the 6% for the lumbar spine and the 5% for the cervical spine, which gives an 11% WPI in this case.”
The Appeal Panel agrees with the detailed examination report and the findings and assessments of Dr Bodel. He obtained a far more detail regarding the nature and extent of Mr Pearce’s duties, and clearly explained why the impact on Mr Pearce’s ADL’s was greater than that found by Dr Kuru, having taken a much more detailed history regarding this issue.
Similarly, he clearly explained his findings and reasons regarding the issue of radiculopathy and his examination was more thorough than that of Dr Kuru.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 June 2024 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: | W3239/24 |
Applicant: | Ian David Pearce |
Respondent: | Graymont (Australia) Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
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 | 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 s 323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical Spine | 30/06/2021 (deemed) | Page 28, | P 392 | 5% | 1/10th | 5% |
| Lumbar spine | 30/06/2021 (deemed) | P 384 | 7% | 1/10th | 6% | |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
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