Qantas Airways Limited v Bonser
[2022] NSWPICMP 289
•15 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Limited v Bonser [2022] NSWPICMP 289 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Kathy June Bonser |
| APPEAL PANEL: | Member Deborah Moore Medical Assessor Roger Pillemer Medical Assessor Drew Dixon |
| DATE OF DECISION: | 15 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant appealed on the basis that the MA erred in the deduction he made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Panel agreed; the evidence disclosed significant pre-existing conditions which warranted a much greater deduction than 10%; Held – Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 April 2022 Qantas Airways Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Neil Berry, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 4 March 2022.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, 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 (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 WorkCover Medical Assessment Guidelines 2006.
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 although one was requested, we consider that we have sufficient evidence before us to enable us to determine the appeal for reasons that will be outlined in due course.
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.
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 MA erred in the deduction he made pursuant to s 323 of the 1998 Act.
In reply, 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 MA for assessment of whole person impairment (WPI) in respect of the cervical spine and the right upper extremity resulting from an injury on 4 July 2019.
The MA obtained the following history:
“Ms Bonser told me that she commenced working for Qantas Airways as a bus driver in February 2009…
She told me that on 4 July 2019, she was standing in the doorway of an office holding the door open with her right hand on the handle and her head was turned to the left while speaking to a supervisor. Apparently, a ground staff colleague… pushed the door against her and her right arm was buckled up behind her and impacted her shoulder and she experienced pain in the base of the neck.
She was advised to go to First Aid the put some ice on to her shoulder. Following the incident she had a few days off which were unrelated to her injury and she then returned to work driving buses. However the pain became worse and she therefore saw the company doctor who prescribed medications and he referred her for physiotherapy. When she was examined by the physiotherapist he told her not to do any exercises and advised her to see the doctor. She was then sent for an ultrasound which showed a rotator cuff injury. Accordingly, she was put on light duties and she was subsequently referred to Dr Alan Duo, Orthopaedic Surgeon who recommended surgery. She ceased working early September and has not returned since.
Dr Dao admitted Ms Bonser to Strathfield Private Hospital on 23 September 2019 and performed an arthroscopic repair on her rotator cuff injury. After the surgery, her shoulder was a little better but her range of movement did not improve. She continued to suffer severe pain in the neck and also pins and needles in the right arm and fingers. She was subsequently referred to Dr Simon McKechnie, Neurosurgeon.
Dr McKechnie organised for her to have steroid injections and when these did not help he admitted her to Sydney Southwest Private Hospital and performed a two level microdiscectomy and rhyzilosis. Ms Bonser told me that this eased her symptoms slightly but she was still significantly disabled. She was subsequently reviewed by Dr John Sivewright for a medical fitness assessment which is a requirement for her bus licence and she was told that she failed this examination and her licences to drive a bus, motor vehicle and ride a bike were all withdrawn to her acute distress.”
Present treatment was described as follows:
“Ms Bonser takes medications: Endone; Lyrica; Endep; Panadol Rapid as required. She also attends a physiotherapist on a monthly basis and also attends a psychologist and a psychiatrist.”
Present symptoms were noted as follows:
“Ms Bonser told me that she continues to have headaches. She has a feeling like there is an iceblock at the back of her neck. She has a cold feeling down her right hand and wears a woollen glove on the right hand all the time. She told me that the shoulder remains stiff and painful. She travels only by public transport and she has difficulty sleeping at night.”
In commenting on “Details of any previous or subsequent accidents, injuries or condition” the MA said:
“Ms Bonser told me that she was involved in an accident in 2012 while driving a bus. She had to stop suddenly in order to avoid a collision and she was thrown forward and backwards and she experienced pain in the neck and was off work for 1 ½ weeks.
In 2013, she had rear-end collision while driving a bus. She was off work for 10 months and she stated that her symptoms gradually settled. At the time the neck and left shoulder were involved but at no stage was a claim made for compensation.”
After setting out details of Ms Bonser’s work history and activities of daily living, the MA then described his findings on physical examination.
He assessed 17% WPI in respect of the cervical spine from which he deducted 10% pursuant to s 323, leaving a total of 15% WPI. [This is an error in itself which we will address in due course]. He then assessed 9% WPI in respect of the right upper extremity and made no deduction. The total WPI assessed was 23%.
He set out details of the various radiological reports he had before him, stating:
“Ultrasound Right Shoulder dated 24 July 2019 demonstrates a full thickness tear of the supraspinatus muscle and tendon.
MRI Right Shoulder dated 31 July 2019 shows multiple full thickness tears in the supraspinatus tendon with tendinopathy. There was subscapularis tendinopathy and severe osteoarthritis of the acromioclavicular joint.
X-ray Cervical Spine dated 22 August 2019 reports mild degenerative changes between C3 and C7.
MRI Cervical Spine dated 22 August 2019 reports multilevel spondylosis with facet joint arthrosis on C4/5 and C5/6.
CT Cervical Angiogram dated 13 January 2020 is reported as normal.
MRI Cervical Spine dated 21 September 2020 reports post-operative changes with no other abnormality.”
The MA summarised the injuries and diagnoses as follows:
“From the claimant's history, she has sustained a rotator cuff injury to the right shoulder and aggravation of pre-existing cervical spine degeneration leading to radicular complaints in the right arm.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied: “I would consider that an assessment should be made of impairment due to her pre-existing injuries and pre-existing cervical spondylosis.” He confirmed that it was only the cervical spine that was affected by any previous injury, pre-existing condition or abnormality.
The MA then turned to comment on the other medical opinions and said:
“Dr Sheikh Habib in his report dated 8 December 2020 assesses the claimant for a restricted range of movement in the right shoulder and a cervical disc injury giving rising to persistent radiculopathy and on these grounds he has made an assessment under Table 4.2 which I disagree with and he assessed the claimant as a Whole Person Impairment of 27% which given her clinical sign I do not believe is appropriate.
A/Prof Paul Miniter in his report dated 18 February 2021 takes the view that the claimant has not achieved maximum medical improvement and he indicates that he doubts her ongoing problems are work related.
Dr John Sheehy in his report dated 21 February 2021 does not believe that the claimant requires surgery on the neck and does not believe that the claimant has radiculopathy.
Dr Anthony Smith in his report dated 27 March 2014 reports on the claimant's bus injury and finds no neurological damage as a result of her cervical spine injury.”
The appellant makes the following submissions:
(a) The MA considered that there had not been any subsequent injury following the subject injury. On 2 December 2020, subsequent to the subject injury, the worker was involved in a bus accident which she claims exacerbated her neck and shoulder pain. The MA failed to note this incident in the worker's history and failed to have regard to this incident when providing an assessment of permanent impairment.
(b) The MA applied a 1/10th deduction to the impairment of the worker's cervical spine in accordance with s 323 of the 1998 Act, on the basis that the deduction was difficult or costly to determine. The appellant submits that the deduction is not difficult or costly to determine, and that the 1/10th deduction is insufficient having regard to the extent of the worker's underlying cervical degeneration as well as to the various prior and subsequent injuries to the cervical spine.
(c) The MA failed to apportion the total impairment percentage of the cervical spine to specific events including the two prior work-related injuries to the cervical spine in 2012 and 2013, the subject injury and the subsequent injury in 2020.
(d) The MA failed to have regard to the subsequent injury of 2 December 2020 for the purpose of making any deduction or apportionment.
(e) The MA failed to have regard to and failed to make any deduction on account of pre-existing pathology in the worker's right shoulder.”
The appellant added:
“Had the MA attributed sufficient weight to the worker's prior injuries and the pre-existing cervical spine condition, a more substantial deduction would have been applied.
Further, it is the appellant's submission that the MA should have made an apportionment, expressed as a percentage, between each separate date of injury, and noting whether each gave rise to any different pathology in the cervical spine.”
The appellant then set out details of the evidence regarding the prior (and subsequent) injuries and conditions as follows:
“lnjury of 29 December 2012.
The appellant notes the following to establish the nature and extent of the worker's cervical spine condition following the injury she sustained on 29 December 2012:
(a) The radiological examination report of the cervical spine dated 18 March 2013 demonstrates:
(i) Mild to moderate spondylosis at the C5/6 and C6/7 discs with soft tissue calcification behind the C2 spinous process, likely due to dystrophic calcification.
(ii) Severe narrowing of the left C3/4 neural exit foramen due to uncovertebral osteophytes and mild to moderate narrowing of he left C5/6 neural exit foramen due to uncovertebral and facet joint osteophytes.
(iii) Moderate to severe narrowing of the right C5/6 neural exit foramen due to uncovertebral osteophytes and mild narrowing of the right C3/4 and C4/5 neural exit foramina due to uncovertebral osteophytes.
(b) The progress note of Dr John Sivewright dated 20 March 2013, indicates that the worker had 'pre-existing degenerative changes' and that the work injury had resulted in an 'aggravation of underlying issues'.
lnjury of 27 July 2013.
The appellant also notes the following to establish the nature and extent of the worker's cervical spine condition following the injury she sustained on 27 July 2013:
(a) In the worker's statement dated 25 September 2013, the worker indicated:
(i) She was experiencing pain upon returning to the transport yard and that she could not continue working that day.
(ii) When the worker presented to Dr Gerald Yuen, she reported that she was in 'excruciating pain'.
(iii) A 'specialist at St Vincents' had advised the worker she may not return to work for 4 months.
(b) The IME report of Dr Sheikh Habib dated 8 December 2020 indicates that the worker in fact remained off work for a 10-month period following this incident. According to Dr Paul Miniter in his IME report dated 18 February 2021, this is a 'very significant historic feature'. Accordingly, the Appellant submits that the AMS did not attribute significant weight to the extent of this injury.
(c) The MRI report of the cervical spine dated 30 July 2013 demonstrates generalised spondylitic changes resulting in narrowing of the left C3-4 and right C5-6 intervertebral foramina, potential neural compromise at these sites, no disc protrusion and no canal stenosis.
(d) The progress note of Dr Sivewright dated 5 August 2013 referred to the MRI scan. Dr Sivewright considered it did not show a new injury, but rather, showed an 'old compromise' at left C3-4 neural exit foramen and at right C5-6 neural exit foramen.
(e) The report of Dr Peter Bentivoglio dated 15 August 2013 indicates:
(i) The worker sustained a flexion extension injury to the neck. On examination, Dr Bentivoglio found that her right arm was normal although she had some restriction of neck movement.
(ii) The MRI scan showed some disc deterioration at multiple levels, but there was no significant neurological compression on the left side which would account for her left arm pain.
(iii) Dr Bentivoglio concluded the worker was likely experiencing a partial frozen shoulder on the left side as well as a muscle and soft tissue injury to her neck.
(f) The Certificate of Capacity dated 23 September 2013 provides a diagnosis of 'cervical whiplash with L C7 nerve root injury'.
(g) The report of Dr George Kirsh dated 25 October 2013 indicates that the worker's issues most likely stemmed from her spine.
(h) The x-ray report of the thoracic spine and lumbosacral spine dated 28 October 2013 demonstrates: 'Mild degenerative changes are demonstrated at the intervertebral joints at the mid and lower thoracic spine. Mild degenerative changes are demonstrated at the facet joints at L4/5 and L5/S1 level.'
(i) The report of Dr George Kirsh dated 21 November 2013 indicates the worker was experiencing 'twinges' and a 'click' in her neck upon turning, with severe pain which could go down into her arm. The worker also reported waking with her left hand feeling like 'ice'. Dr Kirsh noted the worker's physiotherapist at the time was of the view that the worker's main issue was her neck which was 'very tight'.
(j) In the IME report of Dr Anthony Smith dated 27 March 2014, the following was noted:
(i) The worker had 'mild global weakness in both upper limbs, which is unphysiological in its distribution'.
(ii) Notwithstanding Dr Smith's view that the worker did not suffer any major injury during this accident, he noted that the worker's history suggested she had cervical degenerative disease which was rendered symptomatic in the motor vehicle accident of 27 July 2013. Dr Smith stated: 'The cervical degenerative process could be rendered symptomatic from quite trivial incidents or no incidents at all. Many people simply have aggravations for no apparent reason. Any aggravation sustained on 27 July 2013 would have resolved after a few days, a few weeks, two or three months at the very most.' 'All the symptoms she describes are easily explicable by the arthritic changes in the neck ... A considerable majority of bus drivers in current employment who are over 50 years of age would have symptoms from their cervical degenerative disease on a regular basis ... '
(k) In the progress note of Dr Sivewright dated 9 January 2014, Dr Sivewright indicated that the worker had neurological symptoms at C7-8, intermittent spasm of the neck muscles despite taking Baclofen with intermittent left sided headache radiating from the neck.
(I) In the progress note dated 1 May 2014, Dr John Sivewright commented on Dr Smith's report, and although he disagreed with Dr Smith's opinion to some extent, he acknowledged the worker had sustained a soft tissue injury, which aggravated an underlying degenerative cervical spine.
(m) Dr Sivewright acknowledged that the 'degenerative changes themselves are significant' but also considered 'it is somewhat fatuous to suggest that a force which aggravated this underlying problem was not significant'. Despite that Dr Smith considered the injury would resolve relatively quickly, the worker continued to experience frequent neck pain and paraesthesia in the middle and ring fingers of the left hand.
(n) In the progress note dated 19 June 2014, Dr Sivewright noted the worker had returned to work 'with difficulty'.
lnjury on 4 July 2019.
The appellant also notes the following to establish the nature and extent of the worker's cervical spine condition following the injury she sustained on 4 July 2019:
(a) An x-ray and MRI report in relation to the cervical spine dated 22 August 2019 demonstrates:
(i)Mild multilevel spondylosis and facet joint arthrosis on the left at C4/5.
(ii)Uncovertebral joint arthrosis with foraminal narrowing on the left at C3/4, on the right at C4/5 and bilaterally at C5/6.
(iii)(iii) Small posterior disc osteophyte complexes between C3 and C6 but no focal disc protrusion or significant canal stenosis.
(iv)A small annual tear at C3/4.
(b) Upon review of the worker, Dr Alan Dao in his report dated 3 September 2019, observed that there was foraminal narrowing particularly from C3-C6 levels due to the uncovertebral joint arthrosis, which he noted could account for some of the radicular pain felt in the workers fingertips.
(c) An MRI scan of the cervical spine was taken following the worker's right C5/6 decompression. The MRI report dated 21 September 2020 demonstrates mild disc bulges and some foraminal narrowing due to disc/osteophyte complexes at various levels.
Failure to Address the Incident of 2 December 2020
The MA indicated that there was no subsequent injury following the subject injury on 4 July 2019. In fact, on 2 December 2020, the worker was involved in a bus accident whilst commuting to her Regain program. She claims this incident exacerbated her neck and shoulder pain.
It is the appellant's submission that the MA failed to note the incident of 2 December 2020 in the worker's history.
The appellant submits that the MA failed to have regard this incident and the consequent exacerbation of the worker's injuries for the purpose of assessing permanent impairment.
The appellant further submits that the MA failed to make an appropriate deduction or apportionment arising from the exacerbation suffered by the worker as a result of this incident.
The appellant notes the following to establish the nature and extent of the exacerbation of the worker's injuries as a result of the accident on 2 December 2020:
(a)In the admission summary section of the ED Discharge Referral dated 2 December 2020, it is noted that the worker sustained 'acute increase of neck and right shoulder pain since MVA'. The referral also indicates that during the accident, the worker was thrown forward, causing her chest to collide with the seat in front of her. This caused her neck to be pushed forward. The worker was then thrown backwards, hitting the seat behind her. The worker subsequently experienced the acute onset of neck pain in the midline lower cervical spine and upper thoracic spine.
(b)On examination in the Emergency Department, the worker was noted to be tender in the lower cervical and upper thoracic spine areas but she did not have an acute increase of upper limb motor or sensory impairment at the time. While no fractures were demonstrated in CT scan of the cervical spine dated 2 December 2020, the following was noted:
'moderate to severe facet joint degenerative changes at the both C7/T1 levels. There is moderate degenerative change at the atlantoaxial articulation. There is severe left C3/4, right C4/5 bilateral C5/6 bony neural exit foraminal narrowing ... There is ossification posterior to the C3 vertebra, presumably an ununited ossification centre.'
(c) In Dr Gerald Yuen's surgery consultation note of 7 December 2020, Dr Yuen indicated that the worker had been involved in an accident which caused right chest and neck pain and which 'aggravated all previous symptoms'.
(d) The worker was subsequently reviewed by Dr Simon McKechnie who provided a report dated 8 December 2020. Dr McKechnie noted the worker had suffered a further injury when she was a passenger on a bus, causing exacerbation of her neck and shoulder pain. As at the date of his report, the worker continued to experience pain.”
The appellant then turned to consider the issue of the MA’s failure to make any deduction in respect of the right shoulder.
The appellant submitted:
“The appellant notes the following to establish the nature and extent of the worker's pre-existing shoulder pathology:
(a) The ultrasound report in respect of the right shoulder and upper arm dated 24 July 2019 did not demonstrate any evidence of sonographic abnormality involving the right biceps muscle and radial nerve. It did demonstrate an 8mm full-thickness anterior supraspinatus tendon tear and subacromial/subdeltoid bursal thickening with bunching consistent with bursitis.
(b) The MRI report of the right shoulder dated 31 July 2019 demonstrates:
'1. Multiple full-thickness tears of the supraspinatus tendon with underlying additional interstitial tears and tendinopathy. Mild atrophy and fatty infiltration of the associated muscle belly.
2. Likely small remnant tears of the infraspinatus tendon with a cyst/ganglion dissecting into the superior half of the muscle belly adjacent to the musculotendinous junction.
3. Subscapularis tendinopathy.
4. Severe degenerative disease of the AC joint.
5. Complex ganglion cyst seen adjacent to the insertion of the short head of the biceps tendon extending superiorly to lie subjacent to the AC joint and proximal tendinopathy of the supraspinatus. Orthopaedic consultation is recommended.'
(c) The IME report of Dr Paul Miniter dated 18 February 2021 refers to the MRI scan, particularly the atrophy of the muscle and the fatty infiltration of the muscle belly which the doctor considered to be 'definite longstanding features'. Accordingly, it is the Appellant's submission that the mechanism of injury, whereby the worker's arm was pushed backwards whilst holding open a door, could not have resulted in the longstanding pathology demonstrated in the MRI report.”
The appellant summarised the submissions as follows:
“(a) The MA appears to have failed to consider crucial facts in the material attached to the Reply and the AALD filed on behalf of the Appellant which, if considered, would in the Appellant's view, have had some impact on the MA's assessment and the deduction applied by the MA.
(b) In particular, the MA appears to have failed to address the subsequent incident of 2 December 2020 and, despite addressing the MRI report dated 31 July 2019, the MA did not comment on the longstanding right shoulder pathology noted in that report, nor the opinions expressed by Dr Miniter as to that pathology in his report dated 18 February 2021.
(c) This material is, in the Appellant's view, material that could not be ignored by the MA and should have been commented on.
(d) The medical records consistently demonstrate a longstanding degenerative condition of the cervical spine which, in the Appellant's view, warrants a deduction in accordance with s 323 of the 1998 Act which is more substantial than the deduction provided by the AMS, being 1/10th.
(e) Further, in the Appellant's view, the MA should have made an apportionment between each of the various dates of injury in respect of the cervical spine.
(f) The Appellant accepts that an MA is not expected to make reference to and comment on each and every document submitted with a referral for assessment. However, the Appellant submits that in a case where there is clearly evidence that would indicate the worker has longstanding pathology, and where there are clearly multiple injuries sustained by the worker, particularly to the cervical spine, that this material would need to be specifically commented on by the MA.”
To begin with, the MA was not asked to apportion “between each of the various dates of injury in respect of the cervical spine.” His task was to assess impairment, if any, in accordance with the terms of the referral which was to assess impairment “in respect of the cervical spine and the right upper extremity resulting from an injury on 4 July 2019.”
In these circumstances, this aspect of the appellant’s submissions must fail.
We also note as a preliminary matter that the MA has correctly placed Ms Bonser in DRE Category III of her cervical spine following her cervical spine surgery with 15% WPI. He then added an additional 2% for interference with activities of daily living, giving a total of 17% WPI and then made a deduction of one-tenth, leaving Ms Bonser with 15% WPI.
There is a demonstrable error in the MA’s calculations as he should have added an additional 1% WPI for the second level operated on in the cervical spine in accordance with the Guidelines at Page 29, Table 4.2. This then gives a total of 18% rather than 17%. Following the one-tenth deduction this would leave Ms Bonser with 16% WPI rather than 15% as indicated in the MAC.
The thrust of the appellant’s submissions is that the MA’s deduction of one-tenth was insufficient in light of the totality of the evidence which the appellant has helpfully set out in considerable detail.
In general, we agree with the thrust of the appellant’s submissions for reasons that follow.
Chapter 1.28 of the Guidelines requires an MA to indicate if there is a deductible proportion due to any pre-existing condition and specifically states: “the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence” (our emphasis).
It is clear that the MA did not take into account any aggravation from the bus accident in December 2020 which he should have done.
Given the obvious long history of problems with Ms Bonser’s cervical spine and the significant radiological changes since 2012, certainly indicates in our view that a deduction of more than one-tenth would be consistent with all the evidence.
In this regard, and of considerable significance in our view, we note that the MA obtained a history that, following the injury in July 2019, Ms Bonser only had a few days off work which were “unrelated to her injury”, and then she returned to work driving buses. This suggests to us that the injury on that occasion was not very significant in the overall history of her cervical spine injuries.
As far as the right shoulder is concerned, it would seem that Ms Bonser was not complaining of any problems with her shoulder prior to her injury in July 2019, but the investigations certainly show a longstanding problem to have been present, and once again the history post-incident in July 2019 suggests only minor aggravation to her right shoulder.
Once again the Panel would agree that an s 323 deduction would need to be made, taking the above into account, but most importantly noting the atrophy and fatty infiltration noted on the MRI which indicates a longstanding lesion.
Having carefully considered all of the evidence, the Panel has concluded that a deduction in respect of the cervical spine of 2/5th would be appropriate.
Given that the primary assessment should be 18% WPI, this then leaves a total of 11% WPI for the cervical spine.
In respect of the right shoulder, noting our comments above, we have concluded that a deduction of 1/5th would be appropriate. This then leaves a total of 7% WPI for the right upper extremity.
The total WPI is then 17%.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 March 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Neil Berry and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | 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) |
| 1. Cervical spine | 4 July 2019 | Chapter 15 Page 392 Table 15-5 DRE Category | 18% | 2/5ths | 11% | |
| 2. Right upper extremity | 4 July 2019 | Chapter 16 | 9% | 1/5th | 7% | |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
Ms Deborah Moore
Member
Dr Roger Pillemer
Medical Assessor
Dr Drew Dixon
Medical Assessor
15 July 2022
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