Qantas Airways Limited v Southwell

DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Airways Limited v Southwell [2023] NSWPICMP 95
APPELLANT:	Qantas Airways Limited
RESPONDENT:	John Southwell
Appeal Panel	16 March 2023
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	16 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding respondent had persisting symptoms and radiculopathy; whether MA erred by not making section 323 deduction for previous injury or pre-existing condition or abnormality; whether MA required to explain why his opinion differs from other Independent Medical Examiners’ opinions; Appeal Panel found MA erred by not making section 323 deduction; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 December 2021 Qantas Airways Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 November 2021.
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, 4^th ed
1 March 2021 (the Guideliness) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

John Southwell, the respondent, was employed by the appellant as a long haul flight attendant between 14 October 1985 and 14 February 2021. On 18 August 2017 he was working in the business class galley of an Airbus A330 on a flight from Singapore to Melbourne. That required him to work in a small and cramped area. He was required to bend and lift and drag and push weights in the galley. In a statement he signed on 2 July 2021 he described that he began to suffer pain in his lower back from performing those tasks and that the severity of the pain rapidly increased to an extent that it became difficult for him to perform “the supper service”. He described in that statement that he also began to suffer left leg pain. He also described in his statement that over time his lower back and left leg pain increased and that he also suffered numbness in his left foot and developed a left foot limp.
The Appeal Panel notes that the respondent had suffered an earlier work place injury to his back in 2002. He said in his statement that he recovered from that injury after a period of physiotherapy.
Following his experience of back pain and left leg pain on 18 August 2017, the respondent consulted his general practitioner (GP) on 18 August 2017, 21 August 2017 and
28 August 2017, who issued certificates stating that he was unfit to work until
4 September 2017. His GP also referred him for a CT scan of his lumbar spine, which was done on 1 October 2019. The radiologist who reported on that concluded that the scan revealed mild canal stenosis from L3 to L5.
On 2 October 2019 his GP referred him to neurosurgeon Dr Ali Ghahreman, whom the respondent consulted on 22 October 2019. Dr Ghahreman in a letter to the respondent’s GP on 22 October 2019 noted that the respondent had a history of “lower back pain intermittently” and had developed a “sensation of “locked back” in August 2019 and, subsequent to that, developed severe left side lower limb pain and paraesthesia in the “L5 territory”. Dr Ghahreman referred the respondent for an MRI investigation, which was done on 12 November 2019. Dr Lynette Masters who reported on that concluded it revealed congenital narrowing of the lumbar canal with superimposed multi-level spondylotic change. Dr Masters also concluded that the MRI revealed a left foraminal far left lateral disc protrusion at L3/4 with potential irritation of the left L3 nerve root. She concluded that the MRI revealed at the L4/5 a left sided disc protrusion with inferior migration of the disc material and potential irritation of the left L5 nerve root at the level of the lateral recess and at the L5/S1 foramen. Dr Masters said that there was potential irritation of the left L4 nerve root in the foramen.
On 23 November 2019 Dr Ghahreman performed a micro-disectomy on the respondent at the L4/5 disc. He found during surgery that there was a large left L4/5 disc herniation with inferiorly migrated sequestrum and compression of the traversing L5.
On 8 October 2020 orthopaedic surgeon Dr James Bodel examined the respondent, at the request of the respondent’s solicitors. On 5 March 2021 Dr Bodel produced two reports, one tilted “impairment assessment” in which he advised the respondent’s solicitors that he assessed the respondent had 16% whole person impairment (WPI) from the injury the respondent suffered on 18 August 2017. Dr Bodel explained in that report that his assessment was based on the respondent’s lumbar spine impairment correlating with DRE Lumbar Category 3 for which the “base rating” was 10% WPI. Dr Bodel explained that he also assessed, in accordance with [4.35] of the Guidelines, the respondent had 2% WPI as a consequence of his activities of daily living being moderately compromised. Dr Bodel explained that he also added 3% WPI in accordance with Table 4.2 of the Guidelines as a consequence of his finding the respondent to have persisting clinical signs of radiculopathy involving the L5 nerve root. Dr Bodel explained that he also assessed the respondent to have 1% WPI for scarring.
On 18 March 2021 the respondent’s solicitors wrote to the appellant advising the appellant that the respondent claimed compensation from it in the amount of $40,488, under s 66 of the Workers Compensation Act1987 (the 1987 Act), for 16% WPI from his injury. The respondent’s solicitors enclosed with its letter the report of Dr Bodel and advised that the respondent relied upon that report in support of his claim.
Thereafter the appellant’s solicitors arranged for the respondent to be examined by orthopaedic surgeon Associate Professor Paul Miniter. That occurred on 17 June 2021. In a report dated 16 July 2021 Associate Professor Miniter advised he had assessed the respondent to have 8% WPI from his injury. Associate Professor Miniter explained that he assessed the respondent’s impairment with respect to his lumbar spine in accordance with DRE Lumbar Category 3 for which he said, as had Dr Bodel, that the base rating is 10% WPI. Associate Professor Miniter advised that he considered the respondent’s activities of daily living were only minimally compromised and he allowed only an additional 1% WPI loading for that. Associate Professor Miniter advised that he found no persistent signs of clinical radiculopathy. Associate Professor Miniter said that the altered sensation the respondent experienced of the L5 nerve root was not an indication of radiculopathy but rather a result of the compression which had occurred prior to the surgical release and that he did not consider that there needed to be any allowance for that in the assessment of the respondent’s WPI. Associate Professor Miniter also explained that he considered there was no evidence of scarring and hence he assessed the overall WPI for the respondent to be 11%.
Associate Professor Paul Miniter explained that he was not convinced that the respondent’s employment was “the entire cause of his presentation”. At section 4.7 of his report Associate Professor Miniter said that “approximately 50% of his presentation” related to the injury the respondent suffered on 18 August 2017. At section 4.8 of his report he repeated his opinion that the respondent’s employment was not the entire cause of the respondent’s presentation and “as there is no convincing history of injury per se, other than being present in a slightly confined space, I believe that an appropriate deduction of 25% should apply”. Ultimately, as noted earlier, Associate Professor Miniter advised the respondent’s solicitor that he assessed the respondent’s WPI from the injury the respondent suffered on 18 August 2017 was 8%.
On 20 August 2021 the appellant wrote to the respondent, care of his solicitors, and advised him that “liability re your claim for s66 has been declined”. It advised him of its reasons for making that decision which, in substance were, that it relied upon the report of Associate Professor Miniter who assessed he had 8% WPI from his injury which was less than the threshold of 10% WPI that s 66 of the 1987 Act imposed in order for him to be entitled to compensation.
Thereupon, a medical dispute regarding the degree of the respondent’s permanent impairment resulting from his injury arose between the parties. The respondent then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation under s 66 of the 1987 Act. A delegate of the President of the Commission referred the matter to the Medical Assessor to assess the medical dispute between the parties.
The Medical Assessor examined the respondent on 29 October 2021 and in the MAC issued in response to the referral certified he assessed the respondent had 15% WPI from his injury.

The MAC

The Medical Assessor set out in the MAC the history he obtained relating to the respondent’s injury on 18 August 2017, which broadly corresponded with what the respondent had set out in his statement of 2 July 2021. The Medical Assessor noted the earlier injury the respondent suffered to his back in 2002. The Medical Assessor noted that the respondent was treated with physiotherapy for that injury, that the respondent was off work for one to two months following the injury and that the injury did not result in any other significant problems for the respondent other than “an episode of pain lasting 1-2 days every year or so”.
The Medical Assessor noted that, following the respondent’s injury on 18 August 2017, the respondent had some restriction in his activities of daily living in that the respondent had difficulty doing shopping and was no longer able to run or jog recreationally with his wife.
The Medical Assessor recorded the following findings from his examination of the respondent:
“On examination, he was a well looking man with a slight antalgic gait. Trendelenburg’s test was positive by fatigue. His toe stance demonstrates weakness of great toe dorsiflexion on the left side. Formal neurological examination demonstrates symmetrical knee and ankle reflexes with down going Babinskis. There was grade 2/5 power of extensor hallucis longus on the left. The power was otherwise intact. Straight leg raise was to 90° bilaterally without tension signs. Hip range of motion and FABER test were non-irritable. Peripheral pulses were present.”
The Medical Assessor explained that his assessment of the respondent’s permanent impairment was based on the respondent having a L4/5 disc protrusion with radiculopathy which had only partially resolved. The Medical Assessor explained that in accordance with [4.37] of the Guidelines because the respondent had a decompression procedure on his spine the respondent’s impairment with respect to his lumbar spine was assessed as being DRE Category III, for which the rating is 10% WPI. The Medical Assessor explained that he allowed a further 2% WPI because of the restrictions the respondent’s injury had on his activities of daily living, which the Medical Assessor observed increased the respondent’s WPI to 12%. The Medical Assessor explained that in accordance with Table 4.2 of the Guidelines he assessed the respondent had a further 3% WPI due to the respondent having persistent symptoms and radiculopathy. The Medical Assessor explained that the respondent met the criteria of [4.27] of the Guidelines for a finding of radiculopathy to be made because the respondent had muscle weakness that was anatomically located to an appropriate spinal nerve root distribution, being the weakness he found the respondent to have of his extensor hallucis longus coupled with the findings on imaging studies that were consistent with the respondent’s clinical signs.
The Medical Assessor noted that those components combined to produce a total of 15% WPI. The Medical Assessor also said that he found the respondent’s surgical wound was well healed and without complication and appropriate for the surgery that had been done, and that he accordingly assessed the respondent to have 0% WPI for scarring.
The Medical Assessor also expressed his opinion that the respondent did not have any relevant previous injuries or pre-existing conditions or abnormalities, and hence he did not apply s 323(1) of the 1998 Act.
An Appeal Panel revoked the MAC on 12 April 2022.[1]
[1] Qantas Airways Ltd v Southwell [2022] NSWPICMP.
The Appeal Panel found that the MAC contained a demonstrable error and that the Medical Assessor’s assessment was made on the basis of incorrect criteria. The Appeal Panel considered that the Medical Assessor ought to have made a deduction under s 323(1) of 10% for a proportion of the respondent’s permanent impairment that the Appeal Panel considered was due to a previous injury or pre-existing condition or abnormality. Further, the Appeal Panel considered that the findings the Medical Assessor made from his examination of the respondent did not meet the criteria stipulated in [4.27] of the Guidelines for a finding of radiculopathy to be made. The Appeal Panel said that the findings the Medical Assessor made on examination were insufficient to determine that radiculopathy existed.
Having revoked the MAC the Medical Assessor issued, the Appeal Panel issued a MAC certifying the respondent had 11% WPI from his injury.
The respondent then applied to the Supreme Court for an order setting aside that decision of the Appeal Panel and the MAC it issued. Her Honour Justice Adamson made those orders and remitted the matter to the President for determination by a differently constituted Appeal Panel.[2] Her Honour noted that both the respondent and the appellant agreed that the decision of the Appeal Panel and the MAC it issued ought to be set aside. Her Honour, in her reasons, said that she was satisfied the relief ought to be granted. Essentially this was because the Appeal Panel made an error of law by finding that the respondent did not satisfy the criteria of [4.27] of the Guidelines for a finding that radiculopathy could be made. Her Honour held that the clinical findings the Medical Assessor made from his examination of the respondent, which the Appeal Panel had accepted, were sufficient to satisfy the criteria for radiculopathy.
[2] Southwell v Qantas Airways Ltd [2023] NSWSC 27.
A delegate of the President constituted this Appeal Panel to determine the appellant’s appeal.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. The Appeal Panel notes that neither party requested the respondent be re-examined. In any event, the Appeal Panel considers the material before it is sufficient for it to determine the appeal and that no further useful clinical data would be obtained from examining the respondent.

EVIDENCE

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act for a previous injury or pre-existing condition or abnormality the respondent had. The appellant referred to the report of Dr Ghahreman dated 22 October 2019 addressed to the respondent’s GP in which Dr Ghahreman noted the respondent had a 25 year history of lower back pain. The appellant also referred to the report of Associate Professor Miniter who considered a deduction of 25% ought to be made when assessing the respondent’s permanent impairment for previous injuries or pre-existing conditions or abnormalities. The appellant submitted that the Medical Assessor “did not explain why his opinion differed from that of Associate Professor Miniter”. The appellant submitted that whilst the Medical Assessor referred to the CT scan done on 1 October 2019 and the MRI done on 12 November 2019, which the Medical Assessor noted demonstrated a L4/5 disc protrusion, the Medical Assessor “did not acknowledge that these scans demonstrated any degenerative changes”.
The appellant further noted that Dr Ghahreman in his report of 22 October 2019 referred to the respondent developing a sensation of “locked back” in August 2019 whilst skiing and to the respondent subsequently developing severe left sided lower limb pain and paraesthesia in L5. The appellant noted that the Medical Assessor did not make reference to that incident. The appellant submitted that the Medical Assessor did not explain why “there should be no deduction based on the medical evidence before him indicating the respondent had sustained either a significant non-work related frank injury or a significant aggravation of symptoms in 2019”.
The appellant also submitted that the Medical Assessor did not explain why his opinion differed from Associate Professor Miniter with respect to the Medical Assessor’s assessment that the respondent had 3% WPI for the persistence of symptoms and radiculopathy. The appellant submitted that the Medical Assessor did not consider “on the overall medical evidence” that the respondent had “sustained at least a significant aggravation or radicular symptoms outside the workplace in 2019”. The appellant submitted that the Medical Assessor did not consider Dr Ghahreman’s finding from his examination of the respondent that the respondent had little weakness or dorsiflexion and toe extension.
The appellant submitted that the Medical Assessor’s assessment that the respondent had 2% WPI for compromised activities of daily living was excessive. The appellant referred to Associate Professor Miniter’s assessment on that. The appellant submitted that the Medical Assessor did not provide an explanation why his opinion differed from that of Associate Professor Miniter. The appellant submitted that the respondent’s ability to participate in strenuous sports such as skiing indicates that the respondent’s activities of daily living were only minimally compromised at the time “of the frank injury”. The appellant further submitted that the assessment relating to the respondent’s activities of daily living “should at least consider applying a deductible proportion on the basis of the frank injury or significant aggravation of the subject injury sustained in 2019 whilst skiing”.

In reply, the respondent submitted that the respondent’s statement and the clinical notes of Prime Neurosurgery, which detailed the respondent’s earlier injury, were considered by the Medical Assessor. The respondent submitted that the history Dr Ghahreman set out in his report of 22 October 2019 is not supported by other documentation. The respondent submitted that a deduction cannot be made under s 323 for a post injury “skiing accident”.
The respondent submitted that the Medical Assessor, in not making a deduction under s 323, had access to all medical evidence including the MRIs done on 12 November 2019 and
8 July 2020 and Dr Ghahreman’s report. The respondent submitted that the degeneration revealed in the MRI did not cause symptoms the respondent experienced after his injury. The respondent submitted that it was appropriate that no deduction be made based on the evidence. The respondent submitted that the fact that the Medical Assessor did not engage with Associate Professor Miniter on the issue of s 323 deduction is irrelevant because Associate Professor Miniter had not properly addressed the criteria for determining a s 323 deduction.
The respondent submitted that Dr Ghahreman attached no weight to the skiing accident and that there ought to be no deduction made for the skiing accident.
The respondent submitted that the Medical Assessor was entitled not to agree with Associate Professor Miniter with respect to the issue of radiculopathy. The respondent submitted that the Medical Assessor based his assessment on his findings from clinical examination.
The respondent submitted that the Medical Assessor was entitled to make the assessment he did regarding the effect the injury had on his activities of daily living. The respondent submitted the assessment was based on the evidence and on the Medical Assessor’s clinical examination.

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.

Residual symptoms and radiculopathy

Neither party made any complaint about the manner in which Medical Assessor conducted his examination of the respondent, nor the findings the Medical Assessor recorded based on that examination. The Appeal Panel in any event considers, based on the findings the Medical Assessor recorded in the MAC from that examination, that his examination was thorough in that he examined the respondent with respect to all necessary matters in order to determine the permanent impairment of the respondent from the respondent’s injury. The Appeal Panel considers that the Medical Assessor’s findings are consequently reliable and the Appeal Panel accepts those findings.
Based on those findings, the Appeal Panel concludes that the respondent meets the criteria of [4.27] of the Guidelines and hence the respondent has radiculopathy. The Appeal Panel observes that the Medical Assessor’s examination of the respondent revealed that the respondent has muscle weakness that is anatomically localised to a spinal nerve root distribution. This is because the Medical Assessor found that the respondent exhibited Grade 2/5 power of the extensor hallucis longus on the respondent’s left side. That muscle is supplied by the deep fibular nerve which includes the L4 and L5 spinal nerve roots. Hence the respondent met a major criterion listed in [4.27] of the Guidelines. That finding accords with what the MRI done on 10 July 2020 reveals, which was a disc herniation at L4/5, bilateral facet arthropathy, moderate left subarticular recessed stenosis, and moderate left neural foraminal stenosis. The Medical Assessor also noted that the respondent had symptoms of numbness in the cheek of his left buttock, hamstring and foot. Consequently the Medical Assessor was correct to add 3% WPI, in accordance with Table 4.2 of the Guidelines, to the rating of 10% WPI for which the respondent qualified in accordance with [4.37] of the Guidelines due to his having decompression surgery.
With respect to the appellant’s submission that the Medical Assessor did not engage or explain why his opinion differed from that of Associate Professor Miniter, the Appeal Panel observes that the obligation of a Medical Assessor to explain his or her assessment requires a Medical Assessor to reveal the actual path of reasoning by which the Medical Assessor arrived at his or her opinion in sufficient detail such that an Appeal Panel can ascertain whether there is any error in the Medical Assessor’s reasoning.[3] That obligation does not however require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other examiners.[4] Nor does it require the Medical Assessor to sit as a decision maker choosing between competing medical opinions put forward by the parties.[5]
[3] Wingfoot Aust Partners Pty Ltd v Cocak [2013] HCA 43 (Wingfoot) at [55], applied by Campbell JN in the State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison SJ in Broad Spectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[4] Wingfoot at [56].
[5] Kaur at [26].
In summary, the Appeal Panel discerns no error with respect to the Medical Assessor finding that the respondent had persisting symptoms and radiculopathy following surgery and to the Medical Assessor consequently allowing an additional rating of 3% WPI on account of that. The Appeal Panel considers that the Medical Assessor applied the correct criteria in assessing this issue.

ADLs

The Appeal Panel considers that the MAC does not contain a demonstrable error on account of the Medical Assessor assessing the respondent had 2% WPI due to the impact the respondent’s lumbar spine impairment had on the respondent’s activities of daily living.
The Medical Assessor did not err by not explaining why his opinion of this differed from that of Associate Professor Miniter. For reasons already explained the Medical Assessor’s obligation to provide reasons for his assessment did not require him to explain why his opinion differed from others, but rather to explain his opinion. The Medical Assessor noted in the MAC that the respondent had difficulty shopping and was no longer able to run or jog recreationally. Given that, it was open to the Medical Assessor, in accordance with the criteria set out at [4.33] and [4.34] of the Guidelines, to add 2% WPI for the effect of the respondent’s injury to his lumbar spine on his activities of daily living. This is because the impairment the respondent has of his lumbar spine affects the respondent’s ability to undertake his home care. It limits his ability to shop. The Appeal Panel also observes from the respondent’s statement that the respondent said he has to be careful in using stairs because, when doing so, it may aggravate his lower back pain. The respondent also said that he has limited ability to sit, stand and walk. He said his wife now has to undertake many of their domestic tasks such as heavy cleaning. Those factors also support a rating of 2% WPI for the effect the respondent’s injury to his lumbar spine has on his activities of daily living.
The Appeal Panel also does not accept the appellant’s submission that there ought to have been “a deductable proportion” in the assessment of the respondent’s WPI relating to his activities of daily living on account of “the frank injury, or significant aggravation of the subject injury, sustained in 2019 whilst skiing”. Firstly, the evidence does not substantiate that the respondent suffered an injury whilst skiing in August 2019 or that he had a significant aggravation of the injury he suffered on 18 August 2017. Dr Ghahreman, on whose report of 22 October 2019 the respondent relies to support the submission, said that whilst skiing the respondent felt a sensation of “locked back”. The Appeal Panel does not consider that this represents a separate injury from what the respondent suffered on 18 August 2017, but rather it was likely to be the manifestation of a symptom from his injury of 18 August 2017. In any event, common law principles of causation apply to determine the degree of permanent impairment the respondent has from his injury of 18 August 2017. If the respondent did suffer a separate injury in the skiing incident or suffered a progression of his pathology in his lumbar spine as a consequence of that incident then any impairment arising from such a separate injury or progression of his pathology can be attributed to his injury on
[6] Secretary, NSW Department of Education v Johnson [2019] NSWCA 321 at [55] and [124]; Calman v Commission of Police [1999] HCA 60 at [38]-[40].
18 August 2017 because that separate injury or progression of pathology would not have been occasioned if the injury of 18 August 2017 had not occurred. In other words, even if the skiing incident resulted in the respondent suffering a separate injury or a progression of lumbar degeneration, the worsening of the respondent’s symptoms and function consequent on that was causally connected to the injury he suffered on 18 August 2017.[6]

Section 323

The authorities relating to the requirements of s 323(1) of the 1998 Act are consistent and clear. In substance, a Medical Assessor must follow four steps. Firstly, the Medical Assessor must determine the level of a worker’s post-injury impairment, as at the time of assessment. Secondly, the Medical Assessor must identify whether a worker has suffered an earlier injury or has a pre-existing condition or abnormality. Thirdly, the Medical Assessor must determine whether a proportion of the worker’s post-injury impairment is due to that earlier injury or pre-existing condition, which requires the Medical Assessor to be satisfied that the earlier injury or pre-existing condition makes a difference to the outcome for the worker. Lastly, the extent to which a worker’s post work injury impairment is due to the earlier injury or pre-existing condition or abnormality must be determined.[7]
[7] Cole v Wenaline Pty Ltd [2010] NSWSC78 (Cole); Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254; Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder); and Pereira v Siemens Ltd [2015] NSWSC 1133 (Pereira).
This process must be completed by reference to the evidence and not by reference to assumption or hypothesis.[8] However, with respect to the fourth step, if a deduction is required to be made under s 323(1) and it would be too difficult or costly to determine the extent of the deduction to be made, because of the absence of medical evidence or some other reason, then in that circumstance the deduction to be made under s 323(1) can be assumed, in accordance with s 323(2) of the 1987 Act, to be 10%. However, s 323(2) makes clear that that assumption cannot be made if it is at odds with the evidence. The deduction cannot be arbitrarily determined.[9]
[8] Cole at [30]; Pereira at [87]-[88].
[9] Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
The respondent suffered a back injury in 2002 for which he received conservative treatment in the form of physiotherapy and for which he needed to take one to two months off work and which thereafter resulted only in intermittent back pain which he reported to the Medical Assessor as being an episode of pain lasting one or two days every year or so. After taking one to two months off work following his suffering that injury, the respondent was able to perform his normal duties until he suffered injury again on 18 August 2017. There were no radiological investigations taken at the time he suffered his injury on 18 August 2017. The first investigation done after the respondent suffered that injury was a CT scan on
1 October 2019 which, as said above, revealed canal stenosis from L3 to L5. An MRI examination done shortly after that investigation revealed multi-level spondylotic change in his lumbar spine and disc protrusions at L1/2, L2/3, L3/4 and L4/5 with interior migration of disc material at that level of approximately 16mm. The MRI revealed that at the L5/S1 there was left foraminal stenosis compressing the left L5 nerve root.
That investigation as well as the CT scan indicate substantial degeneration of the respondent’s spine. Whilst they were done approximately two years after the respondent suffered injury, the Appeal Panel considers, given the extent of the degeneration revealed in the investigations, that in all likelihood at the time the respondent suffered injury on
18 August 2017 he had significant degeneration in his lumbar spine. Given that he was only briefly troubled each year by back pain, the degeneration in his spine at the time he suffered injury was essentially asymptomatic. Nevertheless, in the Appeal Panel’s view, the degeneration was such that it contributed to the injury the respondent suffered on
18 August 2017, which was a disc rupture. This is because without the degeneration that was existing in the respondent’s lumbar spine as at 18 August 2017, he would not had suffered injury, and hence the degeneration in his spine as at 18 August 2017 makes a difference to the outcome for the respondent. It contributes to his present impairment.
The Appeal Panel considers that a proportion of the respondent’s post injury impairment is therefore due to the pre-existing degeneration in his lumbar spine because. To repeat, in slightly different words, without the degeneration in his lumbar spine as at 18 August 2017, it is unlikely that he would have suffered the disc rupture or his present impairment. The
pre-existing degeneration in his lumbar spine makes a difference to the respondent’s present impairment.
As the appellant submitted the Medical Assessor did not provide any cogent explanation for his conclusion that no proportion of the respondent’s permanent impairment was due to a pre-existing condition or abnormality. He did not explain his reasons for forming his opinion that the respondent did not have any pre-existing conditions or abnormalities. By not doing so he has erred such that the MAC contains a demonstrable error. Further, he has not based his assessment on the correct criteria because he did not consider s 323.
As the Appeal Panel has just stated the respondent did have a pre-existing condition at the time he suffered injury and that a proportion of his permanent impairment is due to that pre-existing condition. It is near impossible however to determine exactly what that proportion would be. Consequently, the Appeal Panel assumes in accordance with s 323(2) that it is 10% which is not at odds with the available evidence.

Skiing incident

As indicated above, the Appeal Panel considers that the fact that the respondent had a sensation of a locked back whilst he was skiing in August 2019 does not indicate that he suffered a separate injury or a progression of the adverse pathology which he had in his lumbar spine in the form of degeneration. As also said, in arguendo, if he did then that would make no difference to the outcome in this matter because his present impairment would not have occurred without his suffering the injury on 18 August 2017. In other words, any permanent worsening of his symptoms and functions consequent upon the August 2019 skiing incident would not have occurred but for the injury on 18 August 2017, and hence event if there was a separate injury or progression of his adverse pathology due to the skiing incident, his permanent impairment would still be causally connected to the 18 August 2017 injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 November 2021 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

Matter number:	W2770/21
Applicant:	John Southwell
Respondent:	Qantas Airways Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in 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)
Lumbar spine	18/8/2017	Page 29 Para 4.37 Table 4.2 Page 28 Para 4.34 Page 27 Para 4.27	Page 384 Table 15-3	15%	1/10	14%
Scarring	18/8/2017	Page 74 Table 14.1	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					14%

[2023] NSWPICMP 95

16 March 2023