Qantas Airways Ltd v Southwell
[2024] NSWPICMP 689
•2 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Ltd v Southwell [2024] NSWPICMP 689 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | John Southwell |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Todd Gothelf |
| DATE OF DECISION: | 2 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of back injury; remitted after second judicial review decision; assessment of persisting radiculopathy after surgery; section 323 deduction; consideration of evidence with respect to alleged pre-existing conditions – Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 December 2021 Qantas Airways Pty Ltd (Qantas) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 22 November 2021. The Medical Assessor assessed 15% whole person impairment (WPI) as a result of a back injury suffered by Mr Southwell on 18 August 2017. The assessment has been the subject of two previous medical appeals and two judicial review applications.
Qantas relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, a ground of appeal was made out.
After the second judicial review decision, the Appeal Panel was reconstituted and this panel was appointed. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Southwell was employed by Qantas as a flight attendant when he suffered a back injury on 18 August 2017. The injury occurred preparing for passenger meal service in the business class galley of an aircraft operating a flight from Singapore to Melbourne. He saw his general practitioner, Dr Teoh, on the day of the injury. He returned to work on 4 September 2017.
Mr Southwell had suffered a previous back injury at work in 2002, when lifting luggage in the crew check-in area, for which Qantas accepted liability. He said in his statement that he fully recovered from that injury after physiotherapy.
Mr Southwell completed a claim form on 22 August 2017 in which he said he “noticed tightness in lower back after being in crew rest then preparing BRF aggravated lower back.” He said that the injury occurred in the forward galley.
Qantas accepted liability on 30 August 2017. A list of payments shows Mr Southwell was paid weekly compensation from the date of the injury until 3 September 2017. No further weekly compensation was paid until 18 November 2019, the day before Mr Southwell underwent surgery. Qantas paid all his treatment expenses, including for surgery.
In his statement dated 2 July 2021 Mr Southwell said that following the 2017 injury, the level of his back and left leg pain increased over time. He suffered from numbness in his left foot and developed left foot drop.
Dr Loxley, general practitioner, referred Mr Southwell to Dr Ghahreman, neurosurgeon, on 2 October 2019, with a history of recurrent back pain with intermittent sciatic symptoms and said that he “has a severe flare at present.”
On 22 October 2019 Dr Ghahreman reported to Dr Loxley and said that Mr Southwell had a 25-year history of low back pain intermittently and “[w]hilst skiing he developed the sensation of ‘locked back’ in August this year and since then developed severe left sided lower limb pain and paraesthesia in L5 territory.” He did not mention the 2017 injury in his short report. Dr Ghahreman ordered an MRI scan with the intention of performing a “very radicular injection” [sic – peri radicular] or microdiscectomy should the cause of the pain be revealed. He noted that Mr Southwell was still working as a flight attendant and was travelling to the USA that day.
The MRI scan of Mr Southwell’s lumbar spine on 12 November 2019 was reported as showing:
“There is congenital narrowing of the lumbar canal with superimposed multi-level spondylitic change.
There is a left foraminal/far left lateral disc protrusion at L3/4 with potential irritation of the left L3 nerve root.
At L4/5 there is a left-sided disc is extrusion with inferior migration of disc material and potential irritation of the left L5 nerve root both at the level of the lateral recess and also at the L5/S1 foramen. There is also potential irritation of the left L4 nerve root in the foramen as described above.”
On 29 November 2019 Dr Ghahreman undertook a microdiscectomy for left L4/5 disc herniation and compression of the left L5 nerve root. At operation Dr Ghahreman observed a large left L4/5 disc herniation with inferiorly migrated sequestrum and compression of the traversing L5 with inferiorly facing moderate tear.
On 20 January 2020 Dr Ghahreman wrote to Dr Loxley summarising his treatment and recommending core strengthening, physiotherapy and hydrotherapy. He described the events leading to surgery in the following way:
“John had a work related injury in 2017, when he strained his back, pushing or pulling an object in the plane, working as an airline host of Qantas. He developed some lower back pain at the time and this escalated in 2019 into a severe left-sided, lower limb, pain, and weakness and sensory changes with paraesthesia down the leg which gradually became intolerable.”
Dr Ghahreman said that Mr Southwell had gained significant improvement in the pain, though was experiencing twinges of discomfort bilaterally. His foot drop had improved and the sensory changes had almost fully resolved.
Mr Southwell saw Dr Ghahreman again in 2020 after a flare up of pain during physiotherapy. An MRI scan taken on 8 July 2020 was reported by Dr Repse as showing post-surgical morphology at L4/5 and that the L4/5 disc herniation was “marginally less conspicuous than previous but recess stenosis remains, along with borderline right and mild to moderate left neural foraminal stenosis”. Moderate bilateral neural foraminal stenosis at L5/S1 remained.
Dr Bodel, orthopaedic surgeon, examined Mr Southwell at the request of his solicitors and reported on 5 March 2021. He obtained a history of the 2002 injury including that Mr Southwell did not suffer significant leg pain or foot drop after it. He also obtained a detailed history as to the cause of the injury:
“The injury occurred when he was doing a supper service. He was in a very confined space and was having difficulty lifting weights. One of the customer toilets is nearby and the area is very tight and confined.
During this process he developed pain in the lower part of the back. He managed to complete the tasks and then had a two hour rest in the “crew rest” and when he came back on duty, his back was very painful and stiff.
The matter was reported to the customer service manager (CSN) on the plane but he continued to be able to work until the end of the sector.”
Dr Bodel diagnosed a disc rupture at L4/5, which occurred on 18 August 2017. He agreed that the surgery undertaken was appropriate. He assessed Mr Southwell in DRE lumbar category III, adding 2% for the activities of daily living and 3% for persisting signs of radiculopathy. He assessed 1% for scarring, making a total of 16% WPI.
A/Prof Miniter, orthopaedic surgeon, saw Mr Southwell at the request of Qantas and reported on 16 July 2021. He noted that the general practitioner’s notes were not available. He recorded that Mr Southwell began to develop leg pain at about the time he was certified unfit for work following the injury and that Mr Southwell did not return to his usual position for the two years between the injury and surgery. He noted the 2002 injury which settled and that Mr Southwell had no leg pain at that time. A/Prof Miniter noted the results of the 2020 MRI scan but said that the altered sensation of the L5 nerve root was not an indication of radiculopathy.
A/Prof Miniter diagnosed degenerative change at the L4/5 level and said that the history is likely consistent with a left-sided L4/5 disc prolapse. He said there was no specific history of injury other than working in a confined space, which he did not consider necessarily qualified “as an injury per se”. He said it was likely that Mr Southwell had sustained an injury during the course of his employment on 18 August 2017 and while the workplace did contribute “we are not entirely sure of its absolute contribution to the development of the matter.” A/Prof Miniter considered that 50% of the presentation related to the injury. He assessed Mr Southwell in DRE lumbar category III and added 1% for activities of daily living. He did not consider there were persistent signs of clinical radiculopathy. He assessed 11% WPI and deducted 25% because “there is no convincing history of injury, per se, other than being present in a slightly confined space”.
The list of payments does not support A/Prof Miniter’s history as to Mr Southwell’s work after the injury.
THE MAC
The Medical Assessor set out a detailed history of the injury:
“On 18/08/2017, Mr Southwell was at work attending the Business Class cabin of a flight from Singapore to Melbourne. He was working in the galley, manipulating catering karts when he felt a pop in his back. He noted some pain and stiffness in his back. The pain intensified in the hotel at Melbourne. He was reviewed by an after-hours medical service and advised to go home. He presented to his GP and Physio but noted progressively over time that he was getting pain and numbness extending from his buttock into his hamstring and then numbness in his foot. Finally, the pain radiated all the way down his leg into the anterolateral shin on the left hand side.
In 2018, he presented to Dr Ghareman and ultimately underwent discectomy in November of 2019. Subsequent to the surgery, the pain had improved significantly. There was a constant feeling of tightness in his back. He had constant background tightness in his hamstring and an unusual feeling in his foot.” [sic]
With respect to the 2002 injury, the Medical Assessor said:
“Mr Southwell had an injury to his back in 2002. 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 estimates he was off work for 1-2 months. He has not had significant problems with his back beyond an episode of pain lasting 1-2 days every year or so.”
Describing the impact on Mr Southwell’s social activities and activities of daily living, the Medical Assessor said:
“Mr Southwell has some restriction in his activities of daily living. He has difficulty completing the shopping particularly loading and unloading the trolley and groceries. As above, he is no longer able to run or jog recreationally with his wife. He is able to use an electric mower and trimmer at home to do his lawns although this exacerbates his pain.”
The Medical Assessor summarised his observations on examination;
“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 reviewed the CT scan dated 1 October 2019 and the MRI scan dated 11 November 2019, observing that each showed an L4/5 disc protrusion. He described the surgery undertaken as a surgical discectomy for radiculopathy.
Setting out his calculations, the Medical Assessor said:
“Mr Southwell has had an L4/5 disc protrusion with radiculopathy which has partially resolved. According to SIRA Guidelines, page 29, paragraph 4.37, Decompression Procedures in the Spine categorises DRE Category III (AMA-5, page 384, Table 15-3): 10% whole person impairment. According to SIRA Guidelines, page 28, paragraph 4.34 I award a further 2% impairment on the basis of restrictions of ADL, giving 12% whole person impairment. According to SIRA Guidelines, page 29, Table 4.2 I assess a further 3% combined for persistence of symptoms and radiculopathy. According to SIRA Guidelines, page 27, paragraph 4.27 Mr Southwell meets the criteria for radiculopathy in that he has muscle weakness that is anatomically located to an appropriate spinal nerve root distribution (weakness of EHL) and findings consistent on imaging study consistent with his clinical signs.
This gives a total of 15% whole person impairment.”
The Medical Assessor contrasted his assessment with those of Drs Bodel and Miniter.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Qantas submitted that that there should be a deduction under s 323 of the 1998 Act because:
(a) “evidence demonstrated” that Mr Southwell had a 25 year history of intermittent lower back pain;
(b) “evidence demonstrated” that Mr Southwell had an earlier injury to his back in 2002, which was not considered;
(c) “evidence demonstrated” that Mr Southwell significant degenerative changes, which were not considered by the Medical Assessor;
(d) “evidence demonstrated” that Mr Southwell had either a frank injury or significant aggravation of a subject injury in August 2019, while 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 in a second, excessive assessment with respect to the activities of daily living “given the evidence before him”.
Qantas observed that the Medical Assessor did not refer to the 2002 injury or the reports of Dr Ghahreman. It submitted that the failure to take those matters into account were demonstrable errors. Qantas said that the Medical Assessor did not engage with the opinion of A/Prof Miniter, and did not explain why his opinion differed. It said that the failure to address degenerative changes meant that the assessment was made on the basis of incorrect criteria.
With respect to the allowance for radiculopathy and persistence of symptoms, Qantas said that A/Prof Miniter made no such assessment. It noted that Dr Ghahreman observed little weakness of dorsiflexion and toe extension when he saw Mr Southwell on 22 October 2019. Qantas said that the assessment 3% for radiculopathy was excessive and submitted that the that part of the assessment was made on the basis of incorrect criteria.
Turning to the impact on the activities of daily living, Qantas again submitted that the Medical Assessor erred in failing to consider Dr Ghahreman’s report and that there should be a deduction from the assessment of the impact on the activities of daily living on the basis of the skiing entry in 2019.
In reply, Mr Southwell submitted that the Medical Assessor’s determination was correct. He said that the skiing incident was irrelevant to an assessment under s 323 because it post-dated the accepted work injury. With respect to s 323, he said that the Medical Assessor had access to all of the evidence and it was clear that they degeneration shown on MRI scan did not cause the symptoms that he experienced after his injury. The partial resolution of symptoms after treatment showed the treatment was appropriate for the injury and Mr Southwell submitted that noted deduction should be made.
Mr Southwell noted that there was limited reference to the skiing incident in the file, and that Dr Ghahreman placed no weight on it.
With respect to the assessment of radiculopathy, Mr Southwell submitted that the Medical Assessor observed signs which A/Prof Miniter did not find, and that the report of Dr Ghahreman pre-dated the surgery, so that any cannot be relevant to the assessment of radiculopathy post-surgery. Mr Southwell said that the Medical Assessor was entitled to come to the determination that he did, based on the clinical examination.
PREVIOUS DECISIONS
The MAC was the subject of a medical appeal brought by Qantas.[1] The first Appeal Panel made a one-tenth deduction under s 323 on the basis of the 2002 injury and subsequent history of intermittent pain. It also found that the criteria for the assessment of radiculopathy had not been satisfied. The first Appeal Panel reduced the assessment to 11% WPI.
[1] Qantas Airways Limited v Southwell [2022] NSWPICMP 84.
Mr Southwell sought judicial review of that decision and Qantas agreed that it should be set aside. In Southwell v Qantas Airways Limited[2] Adamson J found that the Appeal Panel was in error to overturn the Medical Assessor’s assessment with respect to the assessment of radiculopathy under paragraph 4.27 of the Guidelines. The Medical Assessor’s examination findings included one major criterion and one minor criterion which were sufficient to justify an adjustment for radiculopathy. Because of that error, Adamson J remitted the matter for determination by a differently constituted Appeal Panel and did not consider the ground of appeal with respect to s 323.
[2] [2023] NSWSC 27.
The second Appeal Panel[3] was satisfied that Mr Southwell did meet the criteria for the assessment of radiculopathy and for a loading for the impact of the injury on his activities of daily living. The Appeal Panel made a deduction of one-tenth under s 323 because it found that, without the degeneration in his lumbar spine as at the date of the injury, it was unlikely that he would have suffered the disc “rupture” or permanent impairment.
[3] Qantas Airways Limited v Southwell [2023] NSWPICMP 95.
The grounds of review in Southwell v Qantas Airways Limited[4] concerned only the extent of the deduction under s 323. Wright J considered Cole v Wenaline Pty Ltd[5] (Cole) and said:
“Thus, it has been held, in cases such as Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 at [126] (Schmidt J) and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 at [52] (Griffith AJ), that what must be determined under s 323 involves, at least three enquiries:
·Firstly, what the extent of the resulting impairment is.
·Secondly, whether the pre-existing condition contributed to the impairment.
·Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.
In light of the construction referred to above, however, the formulation of the second of these three enquiries may, in a case such as the present, misdirect consideration, if it were thought that all that had to be established was that the pre-existing condition was causally related in some way to subsequent workplace injury and the impairment suffered as a result of that injury, without any part or portion of that level of impairment being due to the pre-existing condition and not the injury.”
[4] [2024] NSWSC 497.
[5] [2010] NSWSC 78.
After considering Vitaz v Westform (NSW) Pty Ltd[6] and Ryder v Sundance Bakehouse[7] Wright J said:[8]
“Applying the construction of s 323 set out above and the approach taken in previous authorities, in Mr Southwell’s case the issues or questions which the Second Appeal Panel was required to consider under s 323(1) included most relevantly for present purposes:
1. whether and by what means the pre-existing disc degenerative condition, as found by the Second Appeal Panel, contributed causally to the level of impairment suffered after the August 2017 workplace injury, as opposed to the occurrence of the injury;
2. whether, in light of those findings, a portion or part of the level or degree of impairment after the workplace injury was due to the pre-existing condition and not the injury or, to use Campbell J’s expression, was “worse” because of the pre-existing condition; and
3. if so, what deduction for that proportion (or portion or part) of the impairment should be made.
[6] [2011] NSWCA 25.
[7] [2015] NSWSC 526.
[8] At [58].
His Honour said[9] that the second Appeal Panel’s reasoning quoted at [41] above amounted to:
“… no more than a conclusion that the pre-existing condition was causally related to the occurrence of the injury and, consequently, the pre-existing condition caused the whole level of impairment that flowed from the injury. The Second Appeal Panel failed to address the required questions or issues, namely:
1. whether and by what means the pre-existing degenerative condition contributed causally to the actual level of impairment suffered after the August 2017 workplace injury, as opposed to the occurrence of the injury; and
2. whether, in light of the Panel’s findings in those regards, a portion or part of the level impairment after the workplace injury was due to the pre-existing condition and not due to the injury, even though the precise extent of that portion or part was not required to be determined.
In other words, before the Second Appeal Panel could be satisfied that a portion or part of the level of impairment suffered by Mr Southwell was due to the pre-existing condition for the purposes of s 323(1), it was required to conclude that a part or portion was due to the pre-existing condition and not the workplace injury and a part or portion of the level of impairment was due to the workplace injury (alone or together with the pre-existing condition). If the only finding was that no level of impairment would have been suffered but for both the pre-existing condition and the workplace injury, it follows that no part or portion of the level of impairment was due to the pre-existing condition and not the workplace injury and, thus, s 323(1) was not engaged and no deduction was required under that section.”
[9] At [63]-[64].
The MAC issued as a result of the second Appeal Panel decision was set aside.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr Southwell to undergo a further medical examination because there is sufficient information in the file to determine the appeal and the assessment made by the Medical Assessor does not disclose error.
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[10] the Court of Appeal held that an 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.
[10] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[11] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[11] [2021] NSWCA 304 at [26].
We begin our consideration by noting that there is limited medical evidence in the file. The submissions made for Qantas that “evidence demonstrated” certain matters place considerable emphasis on statements made in brief reports written for the purpose of treatment. A/Prof Miniter’s history is at odds with Mr Southwell’s statement and the histories taken by others.
Qantas’ submissions about the Medical Assessor’s use of “evidence” are apt to mislead. His task was to examine Mr Southwell as he presented on the day of the examination, taking the medical history and relevant information into account, but using his own clinical judgement to determine a diagnosis and assess permanent impairment.[12]
[12] Guidelines paragraph 1.6.
The Medical Assessor was not required to assess the evidence relied on and to make his findings on the basis of it. In State of New South Wales (NSW Department of Education) v Kaur[13] Campbell J explained:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.”
[13] [2016] NSWSC 346.
The Medical Assessor was directed by the standard MAC template to comment on the evidence relied on by the parties and he did so. The fact that another medical examiner may have made a different assessment on a different day is irrelevant, so long as the Medical Assessor has properly applied the Guidelines.
The submissions of both parties accept that the Medical Assessor was correct to assess Mr Southwell in DRE lumbar category III resulting in a base WPI assessment of 10%.
The nature of the injury
Qantas accepted liability when Mr Southwell made his claim. Probably because he returned to work soon after the injury, there is no medical information about treatment or investigations undertaken. Each of Dr Ghahreman, Dr Bodel and A/Prof Miniter accepted that Mr Southwell suffered a disc injury on 18 August 2017 as did the Medical Assessor.
Dr Ghahreman attributed the injury to pushing or pulling an object in a plane in his report dated 21 January 2020. That is consistent with Dr Bodel’s more detailed history about the confined galley space in which Mr Southwell was working and the history obtained by the Medical Assessor that Mr Southwell was manipulating catering carts in the galley.
A/Prof Miniter’s report is somewhat vague and his history as to the aftermath of the injury is not consistent with the other evidence which supports Mr Southwell’s return to normal duties as a flight attendant after his initial absence and that he was travelling to the USA on the day of the assessment by Dr Ghahreman. A/Prof Miniter accepted that employment was a substantial contributing factor to the injury but said he was not convinced that the injury was the “entire cause” of Mr Southwell’s symptoms “for reasons given above”. Those reasons are not spelt out but appear to be that he did not consider that working in a confined space was an injury. A/Prof Miniter’s opinion does not provide a probative basis for Qantas’ submissions.
The reference to skiing
Before turning to the components of the assessment, it is relevant to consider the role of the alleged skiing incident on which Qantas placed considerable emphasis. The only reference to it is in Dr Ghahreman’s report dated 22 October 2019 to Mr Southwell’s general practitioner.
Dr Ghahreman did not record a history of the work injury in that report. He merely said that Mr Southwell developed the sensation of “locked back” while skiing.
Qantas submitted that there was a frank injury or significant aggravation while Mr Southwell was skiing in 2019. Dr Ghahreman did not say that Mr Southwell suffered an injury while skiing. No other doctor has a history of the incident. A/Prof Miniter did not mention it and he was not referred to it in the questions asked of him. The simple reference in Dr Ghahreman’s report does not support the submission that there was an injury. There is no information to suggest that it contributed to or aggravated radiculopathy.
Numerous decisions highlight the care which should be taken when relying on clinical notes[14] and the same care should be exercised with a short report to a general practitioner.
[14] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, Nominal Defendant v Clancy [2007] NSWCA 349, Mason v Demasi [2009] NSWCA 227.
There is no basis in the evidence to consider the reference to a locked back as anything other than a seizing of the back, being a manifestation of muscle spasm or acute back pain as a result of the disc injury in 2017. Even if there was a progression of symptoms as a result of a skiing injury, it was attributable to the 2017 injury. That manifestation of pain set in train the investigations which led to surgery. Until he was admitted to hospital for surgery, Mr Southwell continued to work as a flight attendant.
Radiculopathy
The fact that Dr Ghahreman’s findings immediately and before and after the surgery were different to those made by the Medical Assessor does not mean that the Medical Assessor’s assessment was in error, as Qantas sought to argue. The Medical Assessor was assessing persisting radiculopathy after surgery and on the day of his own examination. The pre-operative findings were not relevant to his assessment.
Paragraphs 4.27 and 4.28 of the Guidelines provide:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
·loss or asymmetry of reflexes
·muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
·reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
·positive nerve root tension (AMA5 Box 15-1, p 382)
·muscle wasting – atrophy (AMA5 Box 15-1, p 382)
·findings on an imaging study consistent with the clinical signs (AMA5, p 382).
Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
The Medical Assessor found a major criterion being muscle weakness anatomically located to an appropriate spinal nerve root distribution. He observed weakness of the extensor hallicus longus, associated with L5 nerve root pathology. He found a minor criterion being findings on imaging consistent with the clinical signs. Having made those findings, it was appropriate for the Medical Assessor to allow 3% under Table 4.2 of the Guidelines. Table 4.2 provides for a modifier of 3% in respect of the lumbar spine where there has been spinal surgery with residual symptoms and radiculopathy as defined in paragraph 4.27.
The Medical Assessor’s allowance for radiculopathy was correct, based on his examination findings.
Activities of daily living
The Medical Assessor allowed 2% for the impact of the injury on Mr Southwell’s activities of daily living. We set out his reasons above.
Qantas submitted that the Medical Assessor did not explain why his assessment differed from A/Prof Miniter but he was not required to do so. He was required to explain his own opinion. He accepted that Mr Southwell suffered limitations on sport and recreation (running and jogging) and in home care (shopping and lawn care).
The impact of a spinal injury is assessed under paragraphs 4.33 and 4.34 of the Guidelines. The words of paragraphs (“may” and “as a guide”) connote a discretion for an assessor in the allowance to be made. The Medical Assessor obtained a history that there was an impact on Mr Southwell’s activities and an allowance of 2% was open to him in the exercise of his clinical judgement. The ongoing radiculopathy supports that finding.
Qantas submitted that the allowance should be the subject of a deduction because of the alleged injury while skiing. There is no basis to do so merely on the basis of a reference in one medical report.
The Medical Assessor was required to assess Mr Southwell as he presented on the day of the examination and to calculate WPI. Paragraph 4.33 of the Guidelines points out that the allowance for the impact on activities of daily living is part of the DRE assessment. Paragraph 4.37 explains how the DRE assessment is combined with any of the modifiers in Table 4.2, such as persisting radiculopathy. Applying those paragraphs, the Medical Assessor assessed 15% WPI.
Section 323
Once the total WPI was assessed, the Medical Assessor was required to consider the application of s 323. He did not say anything about the application of it except that no deduction was appropriate. He did not refer to the radiology in detail. We consider that the Medical Assessor should have explained his reasoning but we agree that he was correct not to make a deduction.
Dr Bodel did not make a deduction under s 323 because there was no indication of any pre-existing abnormality contributing to the condition. A/Prof Miniter sought to apply a 25% deduction, relying on the MRI findings of degenerative change, because he was not convinced that employment was the entire cause of Mr Southwell’s presentation. His deduction does not employ the methodology set out in the authorities.
Dr Ghahreman’s brief reference to a history of intermittent back pain for 25 years is substantially consistent with Mr Southwell’s statements about the 2002 injury. The radiology does show some degenerative change in Mr Southwell’s spine, as would be expected for a man of his age.
The presence of degenerative changes on radiology does not mandate a s 323 deduction. In Cole, Schmidt J considered whether there should be a deduction in respect of a worker who had undergone surgical treatment for a previous, well documented, injury. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.
As Wright J pointed out the Medical Assessor, and subsequent Appeal Panels, were required to consider whether any pre-existing changes contributed to the impairment. The relevant injury was a disc herniation at L4/5 on a specific date, not an aggravation of degenerative changes as a result of work in confined spaces over time.
The development of a disc herniation was consistent with the history Mr Southwell provided as to the events of 18 August 2017, particularly the “pop” described to Dr Bodel. Dr Ghahreman ordered an MRI scan to locate the cause of Mr Southwell’s pain with the intention of performing an injection or microdiscectomy. The MRI scan showed an acute injury, which was confirmed by the operation findings of a large disc herniation compressing the L5 nerve root.
The surgery that Dr Ghahreman performed was a microdiscectomy at L4/5. The surgery was not undertaken to treat the degenerative change observed in Mr Southwell’s spine. If the degenerative changes had been such as to warrant surgery, it is more likely that Dr Ghahreman would have undertaken a spinal fusion over several lumbar levels.
The Medical Assessor assessed Mr Southwell’s post-surgery condition on the basis that he had an L4/5 disc protrusion which partially resolved, leaving him with radiculopathy and an impact on his activities of daily living. The degenerative changes at the other levels of Mr Southwell’s spine did not form part of the assessment. While those changes may have contributed to the occurrence of the injury, they did not contribute to the impairment assessed.
For these reasons, we have determined that the MAC issued on 22 November 2021 should be confirmed.
0
16
0