Qantas Airways Limited v Southwell

DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Airways Limited v Southwell [2022] NSWPICMP 84
APPELLANT:	Qantas Airways Limited
RESPONDENT:	John Southwell
APPEAL PANEL:	Member Brett Batchelor Dr Drew Dixon Dr Margaret Gibson
DATE OF DECISION:	12 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal by employer against Medical Assessment Certificate (MAC) of Dr R Kuru on the basis of demonstrable error and assessment made on the basis of incorrect criteria; the principal ground of appeal was that the Medical Assessor failed to make a deduction for previous injury, condition or abnormality in accordance with section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in the face of evidence of a previous injury to the lumbar spine and a 25 year history of intermittent lower back pain; finding that such a deduction should have been made, and that it should be 10% of the whole person impairment assessed as a result of the subject injury to the lumbar spine; Held- MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 December 2021 Qantas Airways Limited (the appellant/Qantas) 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 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

On 18 August 2017 the respondent John Southwell (the respondent/Mr Southwell) was working as a flight attendant for Qantas on a flight from Singapore to Melbourne. During the course of preparing the supper service, he began to suffer pain in his lower back. Shortly thereafter, whilst still at work, his back pain increased and he began to suffer leg pain.
Mr Southwell submitted a workers compensation claim to Qantas, liability for which was accepted. He came under the care of general practitioner, Dr Lau, who certified unfitness for work until 4 September 2017. Mr Southwell returned to work on that day, and was referred to Dr Ghahreman, neurosurgeon, in 2018. On 23 November 2019 Dr Ghahreman carried out a discectomy on the lumbar spine.
In respect of previous or subsequent accidents, Mr Southwell injured his back in 2002 when he was signing on for a trip and lifting baggage in the crew check in area. He was treated with physiotherapy at the time and was off work for about one to two months. He says that he has not had any significant problems with his back since then beyond an episode of pain lasting one to two days every year or so.
Prior to the surgery on 23 November 2019, Mr Southwell presented to Dr Ghahreman on 22 October 2019 with a 25 year history of having had lower back pain intermittently. He reported to Dr Ghahreman that he developed the sensation of “locked back” in August that year whilst skiing, and since that time had developed severe left sided lower limb pain and paraesthesia in the L5 territory. A CT scan showed some general bulging at L4/5 and L5-S1, and a sacral Tarlov cyst of no significance.
On 27 July 2020 Mr Southwell was reviewed by Dr Ghahreman who reported to his general practitioner, Dr Loxley, that Mr Southwell had a good result from his operation in November the previous year. About six weeks prior to the consultation, Mr Southwell was doing some exercise physiology when he developed some left lower back pain with some latissimus pain. He also had had some pain in the thigh and the shin, and was feeling the symptoms more regularly. He had some numbness and paraesthesia in the L5 or L4 distribution. A repeat MRI showed a diffuse bulge with prominence in a right paramedial location. There was no significant recurrent fragment. Dr Ghahreman said that there may be a foraminal prominence as preop at L4/5 as well, and recommended ongoing physiotherapy. He thought the symptoms were likely to be temporary.
The Medical Assessor, Dr Kuru, examined the respondent on 29 October 2021 and issued the MAC on 22 November 2021[1]. He assessed him as having sustained an L4/5 disc protrusion with radiculopathy which has partially resolved. According to the Guidelines and AMA 5, Dr Kuru assessed the spine using the diagnosis-related estimates (DRE) as in category III, which in accordance with Table 15-3 on p 384 of AMA 5 would result on 10% whole person impairment (WPI). He added 2% WPI on the basis of interference with activities of daily living (ADL) in accordance with [4.34] on p 28 of the Guidelines and a further 3% WPI in accordance with Table 4.2 of the Guidelines for persistence of symptoms and radiculopathy. Dr Kuru assessed 0% WPI for scarring according to the TEMSKI (table for the evaluation of minor skin impairment) scale (Guidelines p 74). He made no deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act, resulting in a final WPI of 15%.
[1] Appeal Papers p 20.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
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 neither the appellant nor the respondent requested a further medical examination by a Medical Assessor who is a member of the appeal panel, and the panel considers that there is sufficient information in the appeal papers with which to make its decision.

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.

Medical Assessment Certificate

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

SUBMISSIONS

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

Appellant

In summary, the appellant submits that the evidence before the Medical Assessor warranted a deduction pursuant to s 323 of the 1998 Act from the final WPI assessed by him on the following bases:
(a)    the respondent presented with a 25 year history of intermittent lower back pain;
(b)    the respondent had an earlier injury to his back in 2002 which was not considered;
(c)    the respondent presented with significant degenerative changes that were not considered by the Medical Assessor;
(d)    the respondent sustained either a frank injury, or a significant aggravation of the subject injury, in August 2019 when he was skiing;
(e)    the Medical Assessor made an excessive assessment with respect to radiculopathy and persistence of symptoms given the evidence before him, and
(f)    the Medical Assessor made an excessive assessment with respect to activities of daily living given the evidence before him.
The appellant submits that the Medical Assessor had available to him the respondent’s statement attached to the Application to Resolve a Dispute (ARD). That statement referred to an earlier injury to the lumbar spine in 2002 which required physiotherapy. The Medical Assessor also had available to him the clinical notes of Prime Neurosurgery.
The appellant quotes from the report of Dr Ghahreman dated 22 October 2019[2], included in his clinical notes, the reference to the 25 year history of intermittent lower back pain, and the reference to the skiing incident causing the sensation of “locked back”, following which the respondent developed severe left sided lower limb pain and paraesthesia in the L5 territory. The appellant submits that the Medical Assessor did not refer to the report of Dr Ghahreman dated 22 October 2019 in the MAC and does not appear to have considered this treating evidence.
[2] Appeal Papers p 88
The appellant submits that the Medical Assessor does not explain why there should be no deduction pursuant to s 323 in the face of medical evidence indicating that the respondent had a 25 year history of intermittent lower back pain.
The appellant submits that the Medical Assessor did not take into account the injury that the respondent sustained to his back in 2002, referred to in his statement, when considering previous injury or pathology. This would constitute a demonstrable error.
In respect of degenerative changes, the appellant relies on the opinion of
Associate Professor Miniter (Dr Miniter), and the deduction he made from his assessment to account for previous injury, pre-existing condition or abnormality. Dr Miniter refers to the CT scan dated 1 October 2019 which he said demonstrated a significant degree of degenerative change at the L4/5 and L5/S1 levels. Dr Miniter also noted that the MRI imaging dated 12 November 2019 similarly demonstrated degenerative change. The appellant submits that the Medical Assessor did not explain why his opinion differed from that of Dr Miniter, and that the assessment of the Medical Assessor with respect to degenerative change was made on the basis of incorrect criteria.
The appellant submits that the Medical Assessor did not make reference to the skiing incident in which the respondent was involved in 2019, and that it is unclear whether he suffered a frank injury at the time, or an aggravation of symptoms referable to the subject injury. The appellant submits that it was appropriate that a deduction be made from the assessment of WPI to account for the non-work related injury and/or aggravation sustained out of the workplace in 2019. This constitutes a demonstrable error.
The appellant refers to the findings of the Medical Assessor on examination of the respondent in respect of radiculopathy, noting that he agreed with the findings of
Dr Bodel, who carried out an independent medical examination at the request of the respondent’s solicitor. However the appellant submits that the Medical Assessor did not engage with the opinion of Dr Miniter, who made no assessment for radiculopathy on the grounds that altered sensation of the L5 nerve root is not an indication of radiculopathy, but rather a result of the compression which occurred prior to surgical release.
The appellant submits that the Medical Assessor did not consider the report of
Dr Ghahreman dated 22 October 2019 when assessing for persistence symptoms and radiculopathy. The assessment of the Medical Assessor of 3% WPI for such persistence and symptoms was excessive.
The appellant submits that the assessment of the Medical Assessor for the impact of ADL of 2% WPI was excessive, having regard to the ability of the respondent to participate in strenuous sports such as skiing. The respondent’s ADL were only minimally compromised, and submits that the assessment of Dr Miniter of 1% WPI for the impact of ADL was appropriate. The Medical Assessor does not provide an explanation as to why his assessment differs from that of Dr Miniter.
The appellant submits that the assessment of the Medical Assessor in respect of the impact of ADL constitutes a demonstrable error.
The appellant seeks orders that:
(a) the MAC dated 22 November 2021 be revoked;
(b) the Appeal Panel determine that a deduction pursuant to s 323 of the 1998 Act is required to be made to account for the matters summarised above, and
(c) that the Appeal Panel determine WPI in accordance with the appellant’s submissions.

Respondent

In reply, the respondent submits that the assessment of 15% WPI is correct.
The respondent submits that the Medical Assessor had available to him his statement, attached to the ARD, and the clinical notes of Prime Neurosurgery, also so attached.
The respondent submits that it is important to note that the history in the report of
Dr Ghahreman dated 22 October 2019 is not supported by any other documentation, and that as far as an assessment under s 323 of the 1998 Act is concerned, the post injury dated “ski accident” is not relevant. Section 323 only deals with pre-injury conditions. Of more relevance is Dr Ghahreman’s report dated 22 September 2020 [sic] (ARD p 49), which contained a statement that after the L4/5 laminectomy, the symptoms which had been present since injury had abated but not disappeared.
The respondent submits that the two MRIs of 12 November 2019 and 8 July 2020 do not in Dr Ghahreman’s opinion show any significant differences in the pathology noted in the back, and refers to Dr Ghahreman’s report dated 26 September 2020 [sic], again said by the respondent to be at p 49 of the ARD.
The Appeal Panel notes at this stage that there are no reports of Dr Ghahreman dated either 22 or 26 September 2020 at p 49 of the ARD. It may be that these dates are typographical errors, and that the respondent is referring to the report of Dr Ghahreman dated 21 January 2020 which is at p 49 of the ARD[3]. In any event, there are no reports of Dr Ghahreman dated 22 or 26 September 2020 in the Appeal Papers.
[3] Appeal Papers p 85.
In respect of the deduction to be made pursuant to s 323, the respondent refers to the decision of Schmidt J in Cole v Wenaline Pty Limited[4] to the effect that it is appropriate to first determine the degree of WPI (which was done), and then determine what part the pre-existing condition played (that is the degeneration at L4/5) was playing in the assessment of the current WPI.
[4] [2010] NSWSC 78 (Cole).
The respondent submits that the Medical Assessor had access to all of the medical evidence, in particular the MRIs and Dr Ghahreman’s reports. Clearly according to the respondent, the degeneration seen in the MRIs did not cause the symptoms experienced by the respondent after his injury, and the treatment by Dr Ghahreman was responsible for their partial resolution. It was appropriate that, on the evidence, no deduction be made pursuant to s 323 of the 1998 Act.
The respondent submits that the whole of the medical evidence must be considered, and that the history of Dr Ghahreman’s report dated 22 October 2019 of the “ski accident” is not referred to in any other material, and the Medical Assessor was entitled to not base his decision on this one piece of evidence.
The respondent submits that the Medical Assessor specifically refers to the 2002 injury (at [4], dot point four of the MAC), and has considered this evidence.
The respondent submits that there is no demonstrable error in relation to the s 323 deduction.
In respect of degenerative changes, the respondent refers to the evidence of Dr Miniter who, it is submitted, uses the degenerative changes noted MRI evidence as a basis for making a deduction. The respondent submits that this is an incorrect approach having regard to the principles set out in Cole. The respondent submits that the findings in the MRIs did not change between the dates on which they were taken, and yet after the laminectomy carried out, the symptoms he experienced did lessen.
The respondent submits that the fact that the Medical Assessor did not engage with the opinion of Dr Miniter is irrelevant as the doctor has not properly addressed the proper exercise for determining the s 323 deduction in accordance with the principles set out in Cole.
The respondent submits that no deduction should be made from the assessment of WPI in respect of the “skiing accident”, and not to do so was not a demonstrable error.
The respondent submits that the Medical Assessor was entitled to differ in his opinion from that of Dr Miniter in respect of radiculopathy and persistence of symptoms. The respondent submits that Dr Miniter’s failure to consider the 3% modifier for persisting symptoms because he considered that altered sensation is not an indication of radiculopathy, was not the reason the Medical Assessor found the 3% modifier warranted. The Medical Assessor did find a weakness of the “extensor hallucis longus” which Dr Miniter did not find (MAC Paragraph 10.c.) and bases the modifier on this finding as he is entitled to do.
The respondent submits that the Medical Assessor made his findings on persisting symptoms on his clinical examination, and that they are justified on this basis alone. There is no demonstrable error.
In respect of ADLs, the respondent submits that the Medical Assessor based his assessment on all the matters and evidence before him, including all of Dr Ghahreman’s reports, considered Dr Miniter’s finding, and was entitled on the evidence and clinical examination to come to the conclusion that he did.
The respondent submits that no demonstrable error has been made out and that the MAC should be confirmed.

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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC, (see Siddik v Workcover Authority of NSW[5]and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[6]).
[5] [2008] NSWCA 116.
[6] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[7] 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.
[7] [2006] NSWCA 284.

DRE assessment of the lumbar spine

The assessment of the Medical Assessor is set out at [11] above. Neither the appellant nor the respondent takes issue with the assessment of the lumbar spine in accordance with DRE III, on the basis of the respondent having sustained an L4/5 disc protrusion with radiculopathy which has partially resolved, as a result of the subject injury on 18 August 2017. The Medical Assessor assessed 10% WPI as a result of this finding. The Appeal Panel agrees with this assessment.
The Medical Assessor assessed a further 2% WPI on the basis of restrictions of ADL and 3% WPI for radiculopathy, for a total WPI of 15%. No deduction was made therefrom pursuant to s 323 of the 1998 Act for any previous injury, condition or abnormality. The primary submission of the appellant is that there should have been such a deduction.

Section 323 deduction

Mr Southwell’s treating general practitioner in 2019 was Dr Phil Loxley, to whom the report of Dr Ghahreman dated 22 October 2019 is addressed. In that report Dr Ghahreman records that Mr Southwell presented with a 25 year history of intermittent lower back pain. In his statement dated 2 July 2021[8] the respondent notes he suffered an injury to his lower back in 2002 lifting a luggage bag. He submitted a workers compensation claim to Qantas, liability for which was accepted. He said that he had physiotherapy and fully recovered. In the MAC the Medical Assessor refers to this injury at [4], refers to the physiotherapy treatment and notes that the respondent was off work for one to two months. Beyond an episode of pain lasting one to two days every year or so, no significant back problems are recorded.
[8] Appeal Papers p 37.

In the report dated 22 October 2019 Dr Ghahreman also records that Mr Southwell reported that while skiing in August 2019 he developed a sensation of “locked back”, and that since then had developed severe left sided lower limb pain and paraesthesia in L5 territory.
Dr Ghahreman refers to a CT scan showing some general bulging discs at L4/5 and L5-S1 and a sacral Tarlov disc of no significance. That is the CT scan dated 1 October 2019 addressed to Dr Loxley[9]. Dr Ghahreman recommended an MRI scan which was carried out on 12 November 2019[10].
[9] Appeal Papers p 89.
[10] Appeal Papers pp 87 and 86.
Dr Ghahreman operated on the respondent’s lumbar spine on 23 November 2019[11] and found “Large left L4/5 disc herniation with inferiorly migrated sequestrum and compression of the traversing L5. Inferiorly facing moderate tear”. The next report of Dr Ghahreman in evidence is that dated 21 January 2020[12] in which significant improvement in pain is recorded after the surgery. In that report, Dr Ghahreman also records, after referring to the subject work related injury in 2017:
“He developed some lower back pain at the time and this escalated in 2019 into severe left sided lower limb pain and weakness and sensory changes with paraesthesia down the leg which became gradually intolerable.”
[11] Appeal Papers p 82.
[12] Appeal Papers pp 84 and 85 (same report).
The escalation of the pain in 2019 may or may not have been as a result of the skiing incident referred to in the report of 22 October 2019. There is simply insufficient evidence to ascertain if this is the case. In any event, as the respondent submits, this is something that occurred after the injury in 2017 and cannot be the subject of a deduction from WPI assessed as a result of injury in 2017 due to previous injury, condition or abnormality. In this regard, the appellant’s submission at [17(d)] above is rejected. A post injury event cannot be the subject of a s 323 deduction.
The Medical Assessor had access to the CT scan dated 1 October 2019 and MRI scan dated 12 November 2019, and also to a subsequent MRI scan dated 8 July 2020 which demonstrated satisfactory decompression.
Apart from referring to the presentation to Dr Ghahreman in 2018 and the surgery carried out by him in 2019, the Medical Assessor does not otherwise refer to this doctor. He does not refer to the reports of Dr Ghahreman discussed above. The appellant notes that the Medical Assessor did not refer to the report of Dr Ghahreman dated 22 October 2019 and does not appear to have considered this treating evidence. The Appeal Panel accepts this submission. The Panel also accepts that the Medical Assessor has not explained why there should be no deduction in the face of medical evidence before him indicating that Mr Southwell had a 25 year history of intermittent lower back pain.
The respondent submits that, as this is the only reference to the “ski accident” and it is not referred to in any other material, that the Medical Assessor was entitled to not base his decision on this one piece of evidence. The Panel does not accept this submission. It was part of the evidence before him, and the Medical Assessor was entitled to consider, and should have considered, this evidence along with all of the over evidence before him. This included the CT scan dated 1 October 2019 and the MRI scan dated 12 November 2019 along with the respondent’s evidence of a back injury in 2002 and a 25 year history of intermittent lower back pain.
At [11.a.] of the MAC the Medical Assessor says that in his opinion the respondent worker suffers from no relevant previous injuries, pre-existing conditions or abnormalities, and at [11.b.] that previous injury, pre-existing condition or abnormality does not contribute to any matters that were taken into account when assessing WPI that results from the injury. At [11.c.] he says that there is no deductible proportion.
At [10.c.] of the MAC the Medical Assessor comments on the reports of Dr Bodel dated 5 March 2021 (x2)[13] and Dr Miniter dated 16 July 2021[14]. Dr Bodel in his supplementary report assesses 16% WPI and says:
“There is no indication of any pre-existing abnormality or condition which is contributing to the overall level of impairment and therefore no basis for a deduction for pre-existing impairment.”
[13] Appeal Papers pp 47 and 54.
[14] Appeal Papers p 187.
Dr Miniter assesses 11% WPI and says the following in respect of a s 323 deduction:
“For the reasons that I have given above, I remain to be convinced that his employment
is the entire cause of his presentation. 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. This leaves us with an 8% whole person impairment.”
The Medical Assessor, in commenting on the reports of Dr Bodel and Dr Miniter, makes no reference to the s 323 deduction.
The Appeal Panel is of the view that, having regard to the history of a previous back injury in 2002, the history of intermittent back pain since then, and the radiological investigations carried out in 2019, the Medical Assessor should have commented on the treatment of the respondent by Dr Ghahreman in 2019. The Panel is also of the view that, notwithstanding the period that elapsed between the date of injury on 18 August 2017 and the assessment of the Medical Assessor on 29 October 2021, which includes whatever contribution the skiing incident in August 2019 may or may not have had on the progress of the condition in Mr Southwell’s back, a deduction should have been made from the assessment of WPI as a result of injury on 18 August 2017.
The Panel does not accept that any such deduction should be in accordance with the assessment of Dr Miniter. It does not accept the reason put forward by the doctor for his assessment that a 25% deduction should be made. Dr Miniter seems to have had trouble in accepting that Mr Southwell suffered any significant injury on 18 August 2017 and uses this as justification for the deduction of 25%.
The Panel is however of the view that there should be a deduction, and that for this reason, and the failure of the Medical Assessor to comment on relevant medical evidence from the treating surgeon, there has been a demonstrable error shown in the MAC.
Section 323(2) of the 1998 Act is in the following terms:
“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.”
The Appeal Panel is of the view that the extent of a deduction will be, for the reasons outlined above, difficult to determine, that the deduction should be 10% of the impairment, and that such deduction is not at odds with the available evidence.

Impact of ADL

The Appeal Panel is of the view that it is very much a matter for a Medical Assessor who assesses an injured worker to assess the impact of ADL on the day on which the assessment is made. The Medical Assessor took a history of “Social activities/ADL” set out in the seventh dot point in [4] of the MAC, and the Panel does not disagree with the assessment of the Medical Assessor, which accords with the assessment of Dr Bodel of 2% WPI compared with the assessment of Dr Miniter of 1% WPI.

Radiculopathy

The medical members of the Appeal Panel are of the view that, having regard to the findings on physical examination recorded by the Medical Assessor at [5] of the MAC as follows:
“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.”,
that the criteria for radiculopathy in [4.27] of the Guidelines have not been satisfied. If the respondent experienced sensory loss at L5, had wasting and demonstrated asymmetry of reflexes, there could have been a finding of radiculopathy. However, such is not the case. On the finding of the Medical Assessor, the Panel is of the view that, whilst there were signs of radiculopathy, there were insufficient findings on examination to determine that radiculopathy existed. Accordingly, the Panel finds error in the assessment of the Medical Assessor of 3% WPI for the persistence of symptoms and radiculopathy.

Scarring (TEMSKI)

The Appeal Panel notes that Dr Bodel describes the scarring as:
“…mildly complicated surgical scarring because of the pigmentation, the irritability of the scar but no tethering to underlying deep structures.”
Dr Bodel assesses 1% WPI.
Dr Miniter says that:
“There is no evidence of scarring which is other than as expected in this type of surgery.”
Dr Miniter assesses 0% for scarring
The Medical Assessor says in respect of scarring:
“The surgical wound is well healed and appropriate for the surgery that has been undertaken without complication. According to SIRA Guidelines, page 75, Table 14.1 I assess 0% whole person impairment for Skin (TEMSKI).”,
and assesses 0% for scarring.
The respondent does not comment on scarring in his statement. The Appeal Panel accepts the assessment of the Medical Assessor having regard to his findings on the day of assessment.
The Appeal Panel finds therefore that the respondent should be assessed with a final degree of WPI of 11%, calculated as 10% in accordance with DRE III, plus 2% for the impact of ADL for a total of 12% WPI. The s 323 deduction is 10% of this figure, 1.2%, leaving 10.8% WPI which is rounded up to 11% WPI.
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

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 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 or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	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. Lumbar spine	18/08/17	Page 29 [4.37] Table 4.2 Page 28 [4.34] Page 27 [4.27]	Page 384 Table 15-3	12%	1/10th	11%
2. Skin (TEMSKI)	Page 74 Table 14.1	0%	0	0%
Total % WPI (the Combined Table values of all sub-totals)					11%

Brett Batchelor

Member
Drew Dixon

Medical Assessor

Margaret Gibson

Medical Assessor 8 April 2022

[2022] NSWPICMP 84

12 April 2022