Roosters Traffic Control Pty Ltd v Khoury

DETERMINATION OF APPEAL PANEL
CITATION:	Roosters Traffic Control Pty Ltd v Khoury [2024] NSWPICMP 681
APPELLANT:	Roosters Traffic Control Pty Ltd
RESPONDENT:	Tony Khoury
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	25 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor erred in failing to make a deduction pursuant to section 323; Held – Medical Appeal Panel agreed with appellant; the mechanism of injury (whether it be a frank injury, a disease injury or a consequential injury) is irrelevant when determining whether a deduction is required under section 323(1); sufficient evidence to warrant a deduction of 10%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 August 2024 Roosters Traffic Control Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 July 2024.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to make a deduction pursuant to s 323 of the 1998 Act.
While Tony Khoury (the respondent) accepts that the evidence identified by the appellant should have been considered by the Medical Assessor, whether that evidence is sufficient to ground a s 323 deduction is a matter for the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The respondent was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the right upper extremity (right shoulder), the left upper extremity (left shoulder), a consequential condition of the cervical spine, the lumbar spine, again, a consequential condition and scarring (TEMSKI) resulting from an injury on 13 July 2016.
The Medical Assessor obtained the following history:
“Mr Khoury informs me that he was employed by Roosters Traffic Control on a full time permanent casual basis from 2008 to 2017.
His history was confirmed of having sustained his injuries on 13 July 2016 when he was lifting a stack of traffic cones weighing approximately 20kg from the ground into his van. He had the cones above shoulder height when the stack fell, striking him on his right shoulder and developing pain in his neck and right shoulder region, and having had ongoing problems with his neck and right shoulder since then.
As will be noted below, Mr Khoury came to surgery on his right shoulder in October 2016 and he says that within a month of his operation while wearing a sling on the right side, he developed discomfort in his left shoulder region and has had ongoing problems with his left shoulder since then.
In addition, I note that he came to an operation on his cervical spine in February 2019 and Mr Khoury feels that within a month of his neck operation he developed significant discomfort in his low back with referred pain down his right leg and into his right foot. As will be noted below, Mr Khoury has ongoing problems with all of the above sites at the present time.
As far as treatment is concerned, he saw his general practitioner and was referred to a specialist, and has had numerous surgical procedures carried out.
His first operation was a rotator cuff repair of his right shoulder on 8 October 2016. He then had an operation on his cervical spine in February 2019 being an anterior cervical decompression and fusion at three levels.
In July 2020 he had a lumbosacral decompression carried out at two levels, L4/5 and L5/S1.
In September 2020 he had a reverse shoulder joint replacement on the right side.
Mr Khoury had further surgery to his left shoulder in August 2022 and he informs me that his treating specialist has recommended that he have a reverse shoulder replacement on the left side as well.
In addition to Mr Khoury’s surgical procedures he has had extensive physiotherapy and taken tablets, and had injections in his back.”
Present symptoms were noted as follows:
“Right Groin
It is interesting to note that Mr Khoury’s main concern at the present time is with pain in his right groin. It should also be noted that on examination he has significant restriction of right hip movement with no internal rotation, and in fact some fixed external rotation and marked restriction of abduction. As will be noted, this is due to advanced osteoarthritic change of his right hip.
Lumbar Spine
His second main concern at the moment is pain in his low back, particularly on the right side, with referred pain going down his right lower limb with a feeling of paraesthesia and ‘scratching’ in his right foot. Back and leg symptoms are described as being constantly present, going as high as 7-8/10, and aggravated by standing for long, or bending forward as in washing up, or coughing or sneezing, and he does get some relief by sitting down, resting and taking his tablets. He does not feel that his back symptoms are improving at all despite the passage of time.
Mr Khoury has been using a crutch for a considerable period of time now which he feels is related to his back, but in all probability is related to his right hip. He uses the crutch on the left side.
Left Shoulder
His next concern is with his left shoulder region which again is constantly present, ranging between 5-8/10. As mentioned, his treating specialist has recommended a reverse shoulder joint replacement on the left side. One of his main concerns is that whenever he attempts to abduct his arm it ‘pops out’ which causes him significant discomfort and he therefore avoids abduction (see below).
Symptoms are aggravated by using a crutch on his left side and he cannot use it on the right side because of the advanced osteoarthritic and gouty changes of his right hand. Any attempt at elevation of the shoulder, as in dressing and undressing, causes significant discomfort and he does get some relief by resting, taking his tablets and using heat packs. He feels his left shoulder symptoms are getting worse with time.
Cervical Spine
He indicates discomfort being felt in the midline and left side of his neck with symptoms being constantly present, ranging between 5-8/10. On direct questioning there is no referred pain into his upper limbs.
Symptoms are aggravated by any movements of his head and neck, washing his face, and turning his head particularly to the left, and also trying to look up. He gets some relief by relaxing, taking his tablets and using his heat packs.
Right Shoulder
Mr Khoury feels that the shoulder replacement has helped on the right side, and he says if he is simply resting he can be free of pain, but symptoms can still go as high as 7/10 involving the whole of the shoulder region. Symptoms are aggravated by any attempt at elevation of his arm or trying to lift anything, and he does get relief by resting, taking tablets, and applying heat.”
The Medical Assessor then turned to consider “Details of any previous or subsequent accidents, injuries or conditions” and said:
“I note that Mr Khoury had surgery to his left shoulder carried out ‘about 20 years ago’ for a work related injury. On direct questioning he recalls being told that he had had an excision of his clavicle carried out at the time.
Mr Khoury informs me that he has had ongoing problems with his left shoulder region ever since then, but despite this he has been able to do his normal duties. He does say that with lifting he would always have to be careful and his left shoulder was ‘always in my mind’.”
The Medical Assessor then turned to consider the impact of Mr Khoury’s injuries on his social activities and activities of daily living (ADL’s) and said:
“He is significantly restricted at the moment and can only walk for a few minutes at a time with his crutch, and then has to rest. This is mainly due to the problems in his right groin region but also his back and right leg. He can only drive locally.
He lives alone and has cleaners in, and does a minimal amount of housework. He can cook for himself but he would not vacuum, and he cannot hang washing. One of his nieces will always have to go shopping with him as he is scared he will fall.
He manages with his self-care but with considerable difficulty, and this was evidenced by noting him undressing and dressing today.”
Findings on examination were reported as follows:
“Mr Khoury is an adult male, shorter than average height, who presented with a significant limp on the right side today because of his groin discomfort, and being assisted by a crutch under his left arm. As mentioned he cannot use a stick on the right side because of his significant osteoarthritic change in his right hand.
He undresses and dresses slowly and carefully and with considerable difficulty, avoiding elevation of his arms.
Mr Khoury shows restriction of cervical movement particularly with extension and lateral rotation to the left. He does have a very well-healed scar over the anterolateral aspect of his neck region.
I was unable to elicit his triceps reflexes today, and he does have significant triceps wasting, and biceps reflexes were present and equal, with depressed brachioradialis reflexes. Grip strength is significantly decreased, particularly on the right side because of the arthritic problems.
He did have hypoaesthesia to pinprick in the median nerve distribution of both hands, noting that he has previous carpal tunnel releases carried out.
Mr Khoury has significant restriction of shoulder movements bilaterally.
He has moderate weakness against resistance on both sides due to discomfort, and has bilateral rupture long head of biceps.
He has a well-healed 14cm scar over the anterior aspect of his right shoulder region where the reverse total shoulder replacement was carried out, and two well-healed 2cm each scars over the left shoulder.
It was interesting to note that any attempt at abduction of his left shoulder beyond 30° gave him significant discomfort, and palpation of the shoulder at the time noted that a tendon was subluxing over a prominence in the left shoulder region.
Mr Khoury has marked restriction of low back movement today and this was not persevered with.
Straight leg raising on the left side was present to 70° and on the right side he would only allow hip flexion to 70°. As noted, he lacks internal rotation of his right hip which is in slight fixed external rotation and there was only 15° of abduction present, and moving his right hip passively reproduces the significant symptoms he is complaining of in his right groin, radiating down to his right knee. Clinically then he does have significant osteoarthritic change in his right hip which is his main concern at the present time.
His left knee reflex is brisk and present, and his right knee reflex is depressed. Ankle jerks are present and equal but he does have hypoaesthesia to pinprick over the dorsum of his right foot which is distinct and present with repeated testing (L5). There is also some weakness of extension of his toes on the right side.
There is significant muscle wasting of his right lower limb with his left thigh being 2½ cm less on the right side as measured 10 cm above the kneecaps, and his left calf is 1cm less than the right side.
He has a well-healed 5 cm vertical scar in the lower lumbar region which has also healed satisfactorily.”
The Medical Assessor then set out details of the various investigations he had before him which were in respect of the cervical spine and both shoulders.
He then summarised the injuries and diagnoses as follows:
“Mr Khoury originally injured his left shoulder in a work-related accident some 20 years ago for which surgery was carried out including an excision of the outer end of his left clavicle. He did improve following this surgery, and as noted was able to get back to full time normal duties but was always aware of ongoing problems with his left shoulder region, and was very careful with all of his activities.
There is no previous history of any problems with his right shoulder, his cervical or lumbar spines.
Mr Khoury developed significant cervical spine symptoms following his injury as a result of which he had a three-level anterior cervical decompression and fusion carried out.
He also had decompression in the lumbar spine at two levels. He has ongoing evidence of residual radiculopathy on the right side as evidenced by the sensory loss in the L5 distribution, as well as the slight weakness of extension of his toes, and muscle wasting.
He had further surgery to his left shoulder as noted, and his treating specialist has now suggested that he needs a reverse shoulder replacement.
He has also had two operations on his right shoulder, being a rotator cuff repair initially which failed, followed by a reverse shoulder replacement in September 2020.
As noted, Mr Khoury’s main concern at the present time is his groin discomfort radiating down to his right knee and clinically he does have advanced osteoarthritic change in his right hip.”
The Medical Assessor assessed 56% WPI, being 22% in respect of the right upper extremity,10% in respect of the left upper extremity (from which he deducted 1/10^th), 16% in respect of the lumbar spine, 27% in respect of the cervical spine and 0% in respect of scarring.
He added: “I have elected not to make any deduction for his lumbar spine noting that this was regarded as a consequential condition.”
He then turned to consider the other medical opinions and material before him and said:
“I note the reports of Dr R Abraszko (neurosurgeon) of 12 December 2019 commenting on the cervical spine fusion and suggesting that the fusion at the C5/6 level might not have occurred. No figures are suggested.
There are reports of Dr J Bentivoglio (orthopaedic surgeon) of 3 July 2023, noting the various injuries and the various forms of treatment, and suggesting that in his opinion Mr Khoury falls into DRE Category IV of his cervical spine for which he suggests 28% WPI, from which he makes a one-tenth deduction, leaving Mr Khoury with 25% WPI.
As far as his right upper extremity is concerned, he combines the impairment for the arthroplasty as well as the decreased range of movement, giving a figure of 21% WPI which is similar to the figure I have suggested.
With regard to the left shoulder, he finds s 10% WPI and makes a one-tenth deduction. He also suggests a one-third deduction for Mr Khoury’s lumbar spine leaving him with 7% WPI.
Please note that in my opinion Mr Khoury’s scars have all healed very satisfactorily and there is no additional impairment for scarring.”

The appellant’s submissions

These are as follows:
(a)    the appellant accepts the assessments of WPI made by Dr Pillemer for all the injured body parts with the exception of the lumbar spine.
(b)    Dr Pillemer does not record any pre-existing conditions or complaints of symptoms in relation to the respondent’s lumbar spine. He states “There is no previous history of any problems with his … lumbar spine”.
(c)    Dr Pillemer then states: “I have elected not to make any deduction for his lumbar spine noting that this was regarded as a consequential condition.”
(d)    Dr Pillemer has provided no reasoning or case law to support his statement no s 323 deduction is required because the injury to the lumbar spine is considered to be a consequential injury.
(e)    The mechanism of injury (whether it be a frank injury, a disease injury or a consequential injury) is irrelevant when determining whether a deduction is required under s 323(1).
(f)    Dr Pillemer did not engage with the evidence provided to him when concluding there was no evidence of a pre-existing condition in the respondent’s lumbar spine.
(g)    In this regard the appellant submits following evidence is relevant:
(i)Independent medical examiner (IME) report of Dr Bentivoglio dated 3 July 20231 the respondent stated he had never had issues with his back prior to 13 July 2016. Dr Bentivoglio noted the documentation revealed the respondent had back pain in November 2008.
Dr Bentivoglio reported:
“There is a further notation in the local doctor’s notes dated 8 January 2013 of back pain and it would appear that he had a bone scan performed at that time although I could not find the results of a bone scan in the documentation sent to me. It would appear as there is another notation on 6 May 2013 of back pain that he continued to have back symptoms from January 2013 up until at least 6 May 2013. Once again, there is no indication that he had any investigations at that stage. At this gentleman’s age and noting evidence of significant degenerative disease involving his finger joints, I would expect that this gentleman would have degenerative changes present in his lumbar spine to account for his symptoms.”
(ii)Dr Bentivoglio diagnosed the respondent’s lumbar spine condition as an aggravation of pre-existing degenerative changes present in his lumbar spine.
(iii)Dr Bentivoglio reported:
“…obviously this gentleman (from his local doctor’s notes) did have pre-existing abnormalities present in his lumbar spine. It is possible that he did become symptomatic following the specific incident on 13 July 2016. He has undergone surgical treatment at two specific levels of his lumbar spine. From Table 15-3 on Page 384, he has a DRE Category III impairment of his lumbar spine which gives rise to a base impairment rating of 10% whole person impairment. I would make a one third deduction as he was symptomatic in the past and would definitely have degenerative changes present. I would assess him as having a 7% whole person impairment for his back.”
(iv)In his further independent medical examination report dated 22 August 2023, Dr Bentivoglio reported the following:
“At the time I saw him taking into consideration the history he provided me with I felt that he had aggravated pre-existing degenerative change abnormalities present in his lumbar spine. It would appear however from a report from his solicitor’s IME closer to the date of his injury that he did not injure his back in the specific incident on 13 July 2016. I would therefore have to consider any symptoms he may be experiencing in his lumbar spine are purely constitutional in origin.”
(v)In a further report dated 15 March 2024 Dr Bentivoglio reported the following:
“There is also a notation in the local doctor’s notes dated 8 January 2013 of this gentleman experiencing low back pain and joint stiffness with restricted movement. Once again, there is no indication as to whether he had any investigations at this stage or whether his symptoms did settle. The local doctor did arrange for this gentleman to have a bone scan because of polyarthralgia, particularly in his neck and lower back. The SPECT CT bone scan indicated he had intense tracer uptake in the left-sided L3-L4 facet joint and mild discovertebral joint arthritis at the C4-C5 and C5- C6 levels. There was no active facet joint or discovertebral joint arthritis in his lumbar spine. There was a further notation in this gentleman's local doctor's notes on 27 September 2013 of back pain and joint stiffness. From this gentleman's local doctor's notes, it would not appear that he started to complain of symptoms present in his back until 21 August 2019 (almost three years following his cessation from work). As this gentleman did complain of back pain and back symptoms in the past, his complaints are purely in relation to constitutional changes.”
(vi)Clinical note entry of Dr Hamad dated 27 September 2013 reported back pain, joint stiffness and restricted movement. The claimant was prescribed Panadeine Forte.
(vii)Clinical note entries of Dr Hamad dated 8 January 2013 and 6 May 2013 reported back pain, joint stiffness and restricted movement. The claimant was provided with a prescription for Panadeine Forte.
(viii)Clinical note entry of Dr Hamad dated 20 April 2016 (shortly prior to the subject injury) reported lower back pain and tenderness over coccyx. The claimant had back pain, joint stiffness, restricted movement and a poor gait. The claimant was prescribed Endone.
(ix)The respondent’s independent medical examination report from Dr Dias dated 11 April 2023, accepted the respondent sustained a consequential aggravation of previously asymptomatic degenerative lumbar spondylosis. Dr Dias provided a 14% WPI assessment of the lumbar spine and noted “a deductible proportion of one tenth should be subtracted due to Mr Khoury’s preexisting degenerative changes in his lumbar spine region (degenerative lumbar spondylosis).”
(x)The supplementary report of Dr Dias dated 30 October 2023 reported the respondent had suffered an aggravated condition of degenerative lumbar spondylosis.
(xi)There is strong evidence of significant prior back pain in 2013 despite the lack of radiological evidence, with further complaints three months before the subject injury.
(xii)The respondent’s own IME specialist accepted a 10% deduction for the pre-existing condition was appropriate, whereas the appellant’s IME deducted 100% for the pre-existing condition.
(xiii)There is clear evidence the respondent’s lumbar spine was symptomatic prior to the subject injury which Medical Assessor Pillemer failed to mention, let alone consider, therefore a deduction for the pre-existing condition was appropriate.
(xiv)The pre-existing condition in the respondent’s lumbar spine was clearly evident in the clinical notes provided to Dr Pillemer and also from the independent medical examination reports of Dr Dias and Dr Bentivoglio. Further, both these IME specialists considered a deduction was appropriate in the circumstances.
(xv)In the presence of pre-existing pathology and complaints there should be an apportionment of impairment under s 323(1) of the 1998 Act of at least 10% WPI.

The respondent’s submissions
(a)    The respondent accepts that the statement by the Medical Assessor: “I have elected not to make a deduction for his lumbar spine noting that this was regarded as a consequential condition” is wrong in law.
(b)    The respondent accepts that the evidence identified by the appellant should have been considered by the Medical Assessor, but whether that evidence is sufficient to ground a s 323 deduction is a matter for the Medical Appeal Panel.
(c)    The appellant’s submission does not identify any error of the Medical Assessor’s finding of 16% WPI for the lumbar spine, but simply challenges a failure to consider whether there should be a s 323 deduction.
(d)    The appellant’s submissions proceed on the basis that there must be a s 323 deduction, which, in that it contains a hidden presumption, is to invite error. The Medical Appeal Panel, following 1.26 and 1.27 of the Guidelines, must first determine whether in fact such a deduction should be made at all. In this regard, it is not sufficient, as the appellant has done, to simply identify prior complaints of low back pain; what is required is proof that that the condition that caused those prior complaints contributed to the overall impairment found by the Medical Assessor.
(e)    The 16% WPI impairment found by the Medical Assessor was predicated on spinal surgery performed on the respondent in July 2020 and together with residual radiculopathy found by the Medical Assessor on examination. None of prior back complaints identified by the appellant necessarily contribute to either of these matters. As such, while it is conceded there was scope for a finding under s 323, it is not axiomatic that such a finding must have been made by the Medical Assessor.

Discussion

Section 323 of the 1998 Act states:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) 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.”
Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole) is relevant authority for s 323 of the 1998 Act. It is noted that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment.
In Fire & Rescue NSW v Clinen [2013] NSWSC 629, Campbell J referred to D'Aelo vAmbulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365; and Cole, Campbell J said at [32]:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s.323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
Campbell J also noted that it was:
“...necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder), Campbell J said:
“What s.323 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 degree of impairment resulting from the work injury”.
A pre-existing condition or injury, even to the same body part, does not automatically invoke a deduction under s 323. The test is whether the pre-existing condition or injury actually contributes to the current impairment.
If the evidence does not establish that the previous injury contributes to the impairment, then no deduction can be made.
However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction. (Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.)
To put it another way, we understand the Review 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.
Both parties are correct in stating that the mechanism of injury (whether it be a frank injury, a disease injury or a consequential injury) is irrelevant when determining whether a deduction is required under s 323(1).
In the present case, there is very little evidence regarding the state of Mr Khoury’s back prior to the injury pleaded.
As Dr Bentivoglio noted:
“There is a further notation in the local doctor’s notes dated 8 January 2013 of back pain and it would appear that he had a bone scan performed at that time although I could not find the results of a bone scan in the documentation sent to me. It would appear as there is another notation on 6 May 2013 of back pain that he continued to have back symptoms from January 2013 up until at least 6 May 2013. Once again, there is no indication that he had any investigations at that stage.” (our emphasis)
A lumbar spine MRI report dated 5 June 2019 records the following conclusion:
“Multilevel degenerative disc and facet joint arthropathy in the mid/lower lumbar spine as described above. Right-sided foraminal narrowing at the L4-L5 and L5-S1 levels with possible impingement of the respective exiting right L4 and L5 nerve roots.”
A subsequent MRI report dated 25 November 2019 concluded:
“Discovertebral change throughout the lumbar spine. There is canal stenosis particularly at L4-5 and there is right L4 and L5 foraminal root compression as well as right L5 lateral recess root impingement related to an L5-S1 extruded disc fragment.”
It is worth noting that Mr Khoury was employed by the appellant in 2013, however, the claim is pleaded as a frank injury occurring on 13 July 2016.
Dr Bentivoglio’s comment that: “At this gentleman’s age and noting evidence of significant degenerative disease involving his finger joints, I would expect that this gentleman would have degenerative changes present in his lumbar spine to account for his symptoms” we regard as no more than comment: it is not a valid reason in considering whether a s 323 deduction is warranted.
No reference is made by the Medical Assessor to the reports of Dr Dias who accepted that Mr Khoury sustained a consequential aggravation of previously asymptomatic degenerative lumbar spondylosis. Dr Dias provided a 14% WPI assessment of the lumbar spine and noted “a deductible proportion of one tenth should be subtracted due to Mr Khoury’s preexisting degenerative changes in his lumbar spine region (degenerative lumbar spondylosis).”
The supplementary report of Dr Dias dated 30 October 2023 reported Mr Khoury had suffered an aggravated condition of degenerative lumbar spondylosis.
Whilst a Medical Assessor is not required to follow or adopt the opinions of any of the doctors qualified by the parties, they nonetheless form part of all the evidence.
Having carefully considered all of the evidence, and having regard to the various authorities referred to above, we conclude that a deduction pursuant to s 323 is warranted in this case.
Noting the provisions of s 323 (2) we agree that the deduction should be 10% of the impairment, which is not at odds with the available evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 July 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1805/24
Applicant:	Tony Khoury
Respondent:	Roosters Traffic Control Pty 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 Roger Pillemer and issues this new Medical Assessment Certificate as to the matters set out in the table below:

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 AMA5 Guides	% WPI	WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Right upper extremity	13/07/16	Chapter 2, Pages 10-12	Chapter 16 Pages 433- 521	22%	Nil	22%
Left upper extremity	13/07/16	Chapter 2 Pages 10-12	Chapter 16 Pages 433- 521	10%	1/5th	8%
Lumbar spine -------------- Cervical spine ________ Scarring (TEMSKI) Scarring	13/07/16 13/07/16 Chapter 14 Pages 73-74	Chapter 4 PageS 24-29 Chapter 4 PageS 24-29 _________	Chapter 15 Page 384 Table 15-3 Chapter 15 Page 392 Table 15-5 ____________	16% 27% 0%	1/10^th Nil N/A	14% 27% 0%
Total % WPI (the Combined Table values of all sub-totals)					55%

[2024] NSWPICMP 681

25 September 2024