Randstad Pty Ltd v Ali

DETERMINATION OF APPEAL PANEL
CITATION:	Randstad Pty Ltd v Ali [2024] NSWPICMP 197
APPELLANT:	Randstad Pty Ltd
RESPONDENT:	Riaz Ali
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	4 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by not finding that a proportion of the appellant’s permanent impairment from an injury to the appellant’s lumbar spine was due to pre-existing degeneration in appellant’s lumbar spine; Appeal Panel held MA was not in error as the appellant’s lumbar spine injury was a disc prolapse at L5/S1 that required a microdiscectomy following which the appellant continued to have radiculopathy; the appellant’s permanent impairment was assessed on that basis, and his pre-existing condition did not contribute to that impairment; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 December 2023 Randstad Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
5 December 2023.
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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant employed Riaz Ali, the respondent, between 26 May 2017 and 16 July 2017, during which time the appellant seconded the respondent to Grocery Delivery E-Services Australia Pty Ltd trading as Hello Fresh. The respondent worked there as a warehouse operator. His job required him to undertake activities that placed exertion and effort and strain on his back.
On 16 July 2017 the respondent started experiencing pain in his back whilst he was bending, lifting and carrying loads and walking distances between a pallet area and assembly line. The pain he experienced was worse on his left side of his lower back.
On the following day his general practitioner referred him for a CT scan. Dr Sugendran Pillay reported on that scan and provided the following comment by way of a summary in his report:
“Predominantly L5/S1 disc and vertebral end plate degenerative change with moderate canal narrowing and thecal sac indentation. Left lower leg radiculopathy is most likely arising from neural impingement at this level relating to the exiting L5 and descending S1 nerve roots.”
Following that scan, the respondent’s general practitioner referred the respondent to spinal surgeon Dr Ashish Diwan, whom the respondent saw on 23 June 2017 and who referred the respondent for an MRI scan, which was done on 18 July 2017. Dr Ahmed Mayat reported on that scan. By way of summary, he provided the following comment in his report:
“There is a left paracentral disc herniation at L5/S1 compressing the S1 nerve root in the lateral recess of the spinal canal. There is minor facet joint arthropathy.”
On 7 August 2020 neurosurgeon and spinal surgeon Dr Balsam Darwish performed a microdiscectomy at the L5/S1 level of the respondent’s spine.
On 18 August 2022 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation for 19% whole person impairment (WPI) that resulted from an injury the respondent suffered on 16 June 2017. The respondent’s solicitor provided a copy of a report of orthopaedic surgeon Dr James Bodel dated 2 August 2021 in support of the respondent’s claim. Dr Bodel had examined the respondent on 2 June 2021 and advised in his report that the respondent had suffered “a soft tissue injury to the neck and a disc injury at the lumbosacral junction involving L5/S1 in the incident that occurred at work on 16 June 2017”. Dr Bodel further advised that he assessed the respondent had 19% WPI from that injury. Dr Bodel advised that his assessment comprised 14% WPI relating to the lumbar spine and 5% WPI relating to the cervical spine, which combined to 19% WPI.
On 8 December 2022 the insurer wrote to the respondent, care of his solicitors, notifying him under s 78 of the 1998 Act that it disputed that he had injured his cervical spine on
16 July 2017. On 9 December 2022 the insurer again wrote to the respondent care of his solicitors advising him that it offered to pay compensation to him for 11% WPI relating to his lumbar spine. It advised him that it relied on the report of orthopaedic surgeon Dr Robert Breit dated 26 October 2022. It provided him with a copy of that report. In that report
Dr Breit advised he had assessed the appellant’s impairment relating to his lumbar spine was 11% WPI.
The respondent then initiated proceedings in the Personal Injury Commission (Commission). The matter was referred to a Commission Member, namely Mr John Isaksen, who on
26 October 2023, with the consent of the parties, recorded in a Certificate of Determination that the respondent had discontinued his claim relating to an injury for a cervical spine and that the matter relating to the degree of permanent impairment of the respondent was to be referred to a Medical Assessor to assess.
A delegate of the President then referred the matter to the Medical Assessor. As said, the Medical Assessor issued a MAC on 5 December 2023. In that he certified he assessed the respondent had 15% WPI.
The Medical Assessor explained in the MAC that his assessment was based on his finding from his examination that the respondent had radicular signs in his left leg consistent with the injury he suffered. The Medical Assessor explained that this placed the respondent in DRE Lumbar Category III for which the base rating was 10% WPI. The Medical Assessor considered that in accordance with paragraphs 4.34 and 4.35 of the Guidelines an allowance of 2% WPI should be made for the effect the respondent’s injury had on his activities of daily living. The Medical Assessor also explained that, in accordance with paragraph 4.37 and Table 4.2, the Guidelines because the respondent had residual radiculopathy following his surgery, the respondent was entitled to a rating of 3% WPI, when combined with the 12% WPI he otherwise assessed the respondent had, 15% WPI was obtained.
The Medical Assessor briefly summarised the CT scan the respondent had on his lumbar spine on 17 June 2017, the MRI scan he had on 18 July 2017, and a further MRI scan he had following his surgery on 16 March 2021, which the Medical Assessor noted was reported to reveal a chronic lumbosacral disc protrusion and substantial narrowing of the lumbosacral disc space. The Medical Assessor also briefly summarised a nuclear medical scan with SPECT CT that was done on 10 March 2020, which he noted confirmed a facet joint arthropathy at L2/3 and L5/S1.
The Medical Assessor briefly referred to the reports of other examiners, namely Dr Bodel,
Dr Breit, Dr Frank Machart dated 17 March 2022 and Dr John Bentivoglio dated
5 March 2022 and 6 April 2022. With respect to the report of Dr Breit, who had made a deduction under s 323(1) of the 1998 Act for a pre-existing condition, the Medical Assessor commented that he “did not make such a deduction as the claimant has no history of prior back pain or instability”.
The Medical Assessor said that no proportion of the respondent’s WPI was due to a pre-existing condition. It is this part of the Medical Assessor’s assessment that the appellant challenges in its appeal against the MAC.

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. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which she relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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 proportion of the respondent’s permanent impairment that was due to pre-existing lumbar pathology. The appellant referred to the opinions of Dr Breit and Dr Machart in which they noted that the radiological investigations of the respondent’s lumbar spine revealed lumbar pathology, which Dr Breit had described as long-standing lumbar pathology and Dr Machart had described as a symptomatic chronic lumbosacral disc degeneration.
The appellant submitted that the Medical Assessor’s conclusion that the respondent did not have pain or disability in his lumbar spine at the time of injury is not sufficient reason not to make a deduction under s 323(1) of the 1998 Act. The appellant referred to Cullen v Woodbrae Holdings Pty Ltd[2] and Vitaz v Westform (NSW) Pty [3]Ltd as authority for this submission.
[2] [2015] NSWSC 1416.
[3] [2011] NSWCA 254.
The appellant submitted that the Medical Assessor did not consider relevant information, including the reports of Dr Breit and Dr Machart, and submitted the Medical Assessor was required to comment on this evidence which indicated the respondent had a pre-existing condition. The appellant submitted that the Medical Assessor’s reasoning for not making a deduction, being the respondent had no history of back pain or disability, was an error.
In reply, the respondent submitted that there is no evidence that the existence of a pre-existing condition has contributed to his impairment in any way. The respondent referred to Cole vWenaline Pty Ltd[4] and Ryder v Sundance Bakehouse[5] as authority for the proposition that a pre-existing condition must contribute to a worker’s current impairment in order that
[4] [2010] NSWSC 78.
[5] [2015] NSWSC 526.
s 323(1) can be engaged.
The respondent noted that he did not suffer symptoms in his back prior to suffering injury. The respondent also referred to the reports of Dr Bodel, who did not make a deduction under s 323(1), and the report of Dr Bentivoglio dated 1 March 2022 wherein Dr Bentivoglio said “I do not believe he needs any deduction because I think this was an acute disc prolapse and there was no pre-existing back issues before this”. The respondent also submitted that
Dr Machart in his report of 17 March 2022 confirmed that the degenerative disc condition he had in his back did not account for any of his symptoms. The respondent also referred to
Dr Machart’s opinion that “there is no reason to suggest that he would be suffering the same pathology, symptoms or disability if not for the injury”.
The respondent submitted that the Medical Assessor turned his mind and applied his own clinical judgment to the question of whether a deduction was required under s 323(1) of the 1998 Act and determined that no deduction was required. The respondent submitted that “although his scans indicated a possible degenerative condition or abnormality, there is no evidence that this condition or abnormality would have resulted in any rateable degree of permanent impairment”. The respondent submitted, relying on Ryder as authority, that there is no evidence that a pre-existing abnormality would have made a difference to the degree of permanent impairment that results from his workplace injury.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
Campbell J held in Ryder [43] and [45]:
“[43].. [T]he interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.
…
[45] What s323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
The radiological investigations that were done shortly after the respondent suffered injury, specifically the CT scan done on 17 June 2017 and the MRI scan done on 18 July 2017, reveal that the respondent had long standing pathology in his lumbar spine, which was asymptomatic at the time of his injury. It is the case, as the appellant submitted, that the fact that pathology may be asymptomatic at the time of injury does not prohibit s 323(1) of the 1998 Act being engaged.[6] What s 323(1) requires is for the pre-existing condition is contributing a proportion of the permanent impairment a worker has resulting from the worker’s work injury at the time an assessment of a worker’s permanent impairment is done, irrespective of whether it is symptomatic or asymptomatic at the time a work injury occurred. That is made clear by Ryder.
[6] Vitaz at [43]; Cullen at [46].
The injury the respondent has suffered as a consequence of the work he performed during the course of his employment with the appellant between 26 May 2017 and 16 June 2017 was a disc prolapse at L5/S1. That pathology was not part of the pre-existing pathology present in the respondent’s lumbar spine prior to his commencing work with the appellant. That disc prolapse pressed on his nerve causing radiculopathy. The consequence of this was the respondent required a micro discectomy at L5/S1, which was done on
7 August 2020. In accordance with paragraph 4.37 of the Guidelines, because the respondent had that surgery the Medical Assessor correctly rated the appellant’s impairment relating to his lumbar spine as correlating with DRE Category III. Further, because the Medical Assessor found the respondent had residual symptoms of radiculopathy following surgery he correctly added, in accordance with paragraph 4.37 and Table 4.2, 3% WPI. The Medical Assessor also added 2% WPI for the effects of injury on his activities of daily living.
The Medical Assessor was correct to apply that criteria to assess the respondent’s permanent impairment relating to his injury, and indeed, neither party has challenged that. The application by the Medical Assessor of that criteria was consequently due to the nature of the respondent’s injury, being a prolapse of his disc at the L5/S1 level which had necessitated surgery. The surgery, and consequently his permanent impairment, was therefore directly linked to the injury he suffered. The pre-existing pathology he had in his lumbar spine, which did not include the L5/S1 disc prolapse, does not consequently contribute to the permanent impairment he now has from his injury. It makes no difference to the outcome.
The Appeal Panel notes that the Medical Assessor had diagnosed the respondent’s injury as being back pain resulting from an L5/S1 disc protrusion. The Appeal Panel considers that when that diagnosis by the Medical Assessor is considered together with the Medical Assessor’s statement when comparing his assessment with the assessment Dr Breit made, being that he did not make a deduction as the respondent had no history of prior back pain or disability, the Medical Assessor has provided a correct explanation for not making a deduction under s 323(1) of the 1998 Act. That is, the Medical Assessor by noting the nature of the respondent’s injury and noting that the degenerative pathology in his lumbar spine was not generating symptoms, concluded the respondent’s pre-existing pathology was not a contributing factor to the respondent’s permanent impairment. It must be said however, that explanation could have been more cogently expressed.
But even if it is the case that the Appeal Panel is wrong with respect to its conclusion that the Medical Assessor’s reasons are adequate, which would mean that the path of the Medical Assessor’s reasoning was not clearly exposed, which would be a demonstrable error, the same result is achieved, and this is because the Medical Assessor was, for the reasons the Appeal Panel has provided, correct not to engage s 323(1).
For these reasons, the Appeal Panel has determined that the MAC issued on
5 December 2023 should be confirmed.

[2024] NSWPICMP 197

4 April 2024