Sammour v Minotaur Construction Group Pty Ltd
[2024] NSWPICMP 35
•25 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sammour v Minotaur Construction Group Pty Ltd [2024] NSWPICMP 35 |
| APPELLANT: | Maron Sammour |
| RESPONDENT: | Minotaur Construction Group Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 25 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; threshold dispute; section 323 deduction; Medical Assessor did not consider deduction in context of referral, claim and history; reliance on journal articles not provided to parties; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 September 2023 Maron Sammour lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 August 2023.
Mr Sammour 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) that:
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that that MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds 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 Sammour was employed by Mozzy’s Carpentry Pty Limited, a company of which he was a director, as a carpenter from 2009. The company later changed its name to Minotaur Construction Group Pty Ltd (Minotaur). Mr Sammour was employed to work on the redevelopment of Liverpool Hospital in 2009 when he ceased work because of an injury to his hands. He returned to work but ceased in 2016.
Mr Sammour and Minotaur filed Consent Orders on 16 June 2023 in previous proceedings in the Personal Injury Commission (Commission) which provided:
“1. The Application to Resolve a Dispute be amended to plead a disease injury due to the nature and conditions of the Applicant’s employment with the Respondent, with a deemed date of injury of 1 May 2016.
2. Award for the Applicant in respect of primary injuries to his right wrist, cervical spine, thoracic spine and lumbar spine, along with consequential conditions to his right and left shoulders, right elbow and left wrist, as a result of the nature and conditions of his employment with a deemed date of injury of 1 May 2016.
3. Award for the Respondent in respect if the alleged injury to the right knee, either as an injury sustained or as a consequential condition.
4. Award for the Respondent in respect of any alleged primary psychological injury.
Notations
A. The parties agree for the matter to be referred to a Medical Assessor by the Personal Injury Commission to determine any permanent impairment to the Applicant’s cervical spine, thoracic spine, lumbar spine, shoulders, right elbow and wrists as a result of the injury on 1 May 2016.”
There is nothing in the file to explain what, if any, assessment was made as a result of that referral. The referral made in these proceedings is different, omitting the left wrist.
These proceedings were commenced as a request for assessment as to whether Mr Sammour’s degree of permanent impairment is greater than 20% for the purpose of assessing his entitlement to ongoing weekly compensation under s 39 of the Workers Compensation Act 1987 (the 1987 Act) . The referral to the Medical Assessor asked him to assess:
“Body part/s referred: Primary injuries - Right upper extremity (right wrist), cervical spine, thoracic spine & lumbar spine.
Consequential injuries - Right upper extremity (right shoulder, elbow) Left upper extremity (left shoulder)
Method of assessment: WHOLE PERSON IMPAIRMENT
NOTE: THIS MATTER IS REFERRED AS A THRESHOLD DISPUTE ONLY – THE MEDICAL ASSESSOR IS TO ASSESS AS THE WHOLE PERSON IMPAIRMENT REGARDLESS OF THE DATE OF INJURY.”
The Medical Assessor assessed 15% whole person impairment (WPI) comprised as follows:
Body part
%WPI
Section 323 deduction
Sub-total
Cervical spine
26%
¾
7%
Lumbar spine
17%
¾
4%
Right upper extremity
2%
1/10th
2%
Left upper extremity
2%
1/10th
2%
Thoracic spine
0%
0%
Total WPI
15%
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 Sammour to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
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.
The parts of the MAC that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Sammour submitted that the Medical Assessor must have accepted that there was some level of cause, acceleration, exacerbation or deterioration in respect of the injuries to his cervical and lumbar spines but did not explain how he made that determination. He said that the Medical Assessor made a demonstrable error in the application of s 323 of the 1998 Act, apparently having regard to only two scans and not referring to an MRI scan in 2013. He said that the Medical Assessor referred to “the evidence” without explaining what evidence he referred to and that the Medical Assessor made a determination based on a view that degenerative changes cannot be aggravated by occupational use.
Mr Sammour said that the Medical Assessor made an error in the assessment of his lumbar spine and that his calculations cannot be understood. He said that the Medical Assessor failed to provide reasons for the deductions he made under s 323 of the 1998 Act and failed to provide procedural fairness, referring to two journal articles of which copies were not provided. Mr Sammour referred to Kinchela v Insurance Australia Group Limited (Kinchela).[1] Mr Sammour sought a re-examination.
[1] [2021] NSWSC 804 at [32]-[35].
In reply, Minotaur submitted that the background of the claim was important and summarised part of Mr Sammour’s statement to say that he undertook physical work with his former employer between 2006 and September 2009. Minotaur purported to attach a company search to its submissions to show that it was registered on 7 October 2009. The document was not provided to us and no submissions were made supporting an application to rely on fresh evidence. Minotaur said that Mr Sammour worked from October to December 2009 when he ceased due to hand and arm problems and that he returned to supervisory duties in 2016.
Minotaur submitted that there was no contemporaneous clinical evidence to support the contention that Mr Sammour aggravated a condition in his lumbar or cervical spines in the course of his employment and that the deduction made by the Medical Assessor was appropriate.
Minotaur agreed that the Medical Assessor made an error in the calculation of permanent impairment of Mr Sammour’s lumbar spine on the basis that he had undergone only one operation. It said that the correct assessment was 16% from which three-quarters should be deducted.
Minotaur said that the Medical Assessor provided adequate reasons and was not required to refer to every piece of evidence. It said that there was no denial of procedural fairness in relying on journal articles because the Medical Assessor was entitled to rely on his expertise and training, that rule 73 of the Personal Injury Commission Rules permitted a decision maker to “inform themselves on any matters in the proceedings having regard to the relevant principles.”
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[2] 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor set out the history of Mr Sammour’s injuries, saying that from 2009 over the course of six to nine months, he developed a worsening problem in his wrists, elbows, and then his shoulders. The Medical Assessor said that Mr Sammour was diagnosed with ulnar impingement and a ganglion in its right wrist and underwent surgery. He set out a history of surgical procedures commencing in 2016. He recorded that revision lumbar spinal surgery was undertaken in April 2022.
The Medical Assessor summarised Mr Sammour’s present symptoms and set out the findings of the range of motion in his shoulders, elbows and wrists. The findings are completely symmetrical. He recorded his findings on examination of Mr Sammour’s cervical and lumbar spines and, even though there was no relevant claim for scarring. The Medical Assessor noted the findings on an MRI of Mr Sammour’s lumbar spine on 20 March 2022 and a CT scan of his cervical spine on 22 March 2021.
The Medical Assessor summarised the injuries and diagnoses:
“Mr Sammour has developed pain in his wrists and elbows which he attributes to the nature and conditions of his work as a carpenter. He subsequently developed pain in his shoulders consistent with impingement. He has also undergone surgery on the neck from multilevel degenerative disease with previous referred pain in the left arm. He has had two decompressive procedures on the lumbar spine and again, for multiple level degenerative disc disease.”
In response to the question in the MAC template as to which body parts were affected by a previous injury, pre-existing condition or abnormality, the Medical Assessor listed “right upper extremity, left upper extremity, cervical spine, thoracic spine, lumbar spine.”
The Medical Assessor set out the explanation of his calculations. Only that for the lumbar spine is the subject of appeal. The Medical Assessor said:
“Lumbar Spine: SIRA page 29, paragraph 4.37 directs that decompressive procedures on the spine be assessed as DRE Category III. AMA 5 page 384, Table 15.3 assesses 10% whole person impairment under DRE Lumbar Category III. An additional is added according to SIRA Guidelines Page 28, paragraph 4.34 for restrictions of activities of daily living. Mr Sammour does meet the criteria for assessment of persistent symptoms on the basis of radiculopathy under SIRA page 29, paragraph 4.2 and that he has reproducible impairment of sensation in the L4 nerve root distribution with persistent compressive pathology seen on imaging. He also attracts a further 1% for an additional level and 2% for a second surgical procedure on the lumbar spine. 12% WPI combined with 6% WPI gives 17% WPI for the lumbar spine.”
The Medical Assessor commented on the reports of the medical examiners qualified for the parties – Dr Stephenson for Mr Sammour and Drs Smith and Bosanquet for Minotaur. He said:
“With respect to the report by Dr Stephenson dated 8 August 2022, I agree with his assessment of the lumbar spine as DRE Category III and also with the addition of 2% for restrictions of activities of daily living. I also agree with the assessment of 3% impairment for persistent radiculopathy. Dr Stephenson has not added additional impairment for further surgical levels and revision surgery.
I disagree with his assessment of impairment for the thoracic spine. I do not find asymmetry of movement. I do not agree the examination findings are compatible with specific injury.
With respect to the cervical spine, I am in agreement with the assessment of DRE Cervical Category IV (25% WPI). Dr Stephenson has added a further 2% for restrictions of activities of daily living. I note SIRA page 28, paragraph 4.36 notes that where injury exists in more than one spinal region, the effect on ADLs should be assessed once only.
In the supplementary report dated 26 June 2023, Dr Stephenson has gone on to assess 14% whole person impairment for the right upper extremity and 5% whole person impairment for the left upper extremity. Unfortunately, the rationale for this assessment is not described in his report. As above whole person impairment for restrictions of range of motion in the shoulders, elbows or wrists was not assessable at my examination.
With respect to the report by Dr Smith dated 8 October 2019, I note Dr Smith’s opinion that the pathology in neither the cervical nor lumbar spines he would assess as being work related.
With respect to the report by Dr Bosanquet dated 2 February 2023, again I note his opinion that the pathology in the spine is a degenerative constitutional condition and unrelated to employment. He assesses no impairment with respect to the upper limbs.”
The Medical Assessor said that Mr Sammour suffered the following previous injuries, pre-existing conditions or abnormalities:
“(i) Subacromial bursitis right shoulder
(ii) Subacromial bursitis left shoulder
(iii) Degenerative disc disease cervical spine
(iv) Degenerative disc disease thoracic spine
(v) Degenerative disc disease lumbar spine.”
He said:
“(i) The right and left upper extremity injury and ongoing symptoms in both shoulders represents aggravation of constitutional pre-existing subacromial bursitis and impingement in the shoulders.
(ii) Cervical spine, thoracic spine and lumbar spine imaging on Mr Sammour demonstrates generalised constitutional spinal pathology.
c. In the right upper extremity and left upper extremity, the extent of deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.
For the cervical spine, thoracic spine and lumbar spine, whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is three-quarters for the following reasons:
(i) Imaging of Mr Sammour’s cervical, thoracic and lumbar spine demonstrates a constitutional pathology which is predominantly genetic in origin. Whilst it is commonly believed that these processes can be accelerated by occupational exposure, this is inconsistent with the available medical evidence. (Battie et al, Determinants of lumbar disc degeneration, a study relating lifetime exposure and magnetic resonance imaging findings in identical twins, SPINE 20:2601-2612, 1995 and Videman et al, The effect of anthropometrics lifting strength and physical activities in disc degeneration, SPINE 32:1406-1413, 2007.)
Mr Sammour does not describe aggravation or exacerbation of his degenerative spinal pathologies in the course of his employment.”
The passages of the MAC that we have quoted contain the extent of the reasoning offered to support the Medical Assessor’s opinions. It is clear that the minimal reasoning for the extensive s 323 deduction is inadequate and is a demonstrable error.
It must be said that the file is voluminous comprising more than 3,000 pages. Mr Sammour’s statement is brief. Some reports in the file are repeated while other apparently relevant documents have been omitted.
We will deal with Mr Sammour’s other ground of appeal before turning to s 323.
Lumbar spine assessment
Neither party has taken issue with the primary assessments made by the Medical Assessor other than for Mr Sammour’s lumbar spine.
The Medical Assessor assessed Mr Sammour in DRE lumbar category III because he had undergone decompressive surgery, resulting in 10% WPI. He made an allowance for the impact on his activities of daily living which he omitted to record. The reference to 12% in the last line of the relevant paragraph shows that he allowed 2%. The Guidelines provide that the DRE assessment is combined with the assessment for the activities of daily living before considering the effects of surgery. It is the same allowance for the impact on activities of daily living that Dr Stephenson made, though he allocated it to the cervical spine, and it is consistent with Mr Sammour’s statement that he is able to shower and to help with a limited number of household chores.
The Medical Assessor then considered the modifiers in paragraph 4.37 of the Guidelines. He allowed 3% for spinal surgery with persisting symptoms of radiculopathy and allowed 1% for a second level and 2% for a second operation.
The lumbar surgery undertaken by Dr Damodaran in August 2020 was a left L4/5 and L5/S1 decompression with a left L5/S1 microdiscectomy. The Medical Assessor recorded that revision surgery was undertaken in 2022. Dr Damodaran said on 6 April 2022 that he had placed Mr Sammour on the Concord Hospital waiting list. The notes from Concord Hospital in the Application to Resolve a Dispute (ARD) are current to 10 November 2022. Mr Sammour did not mention that surgery in his statement dated 23 March 2023 but Dr Damodaran’s report dated 21 May 2023 says that further surgery had taken place in 2023.
On the basis of that information and the history obtained by the Medical Assessor is it appropriate to allow 2% for a second operation.
The appropriate calculation is 10% for DRE lumbar category III combined with 2% for the impact of the injury on the activities of daily living, resulting in 12% WPI. Under Table 4.2 3% for spinal surgery with persisting radiculopathy is combined with 1% for an additional level and 2% for a second operation, resulting in 6% WPI. Those figures of 12% and 6% are combined to reach 17% WPI.
Section 323
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(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.
…”
The deduction under s 323 must be considered in the context of the referral, the claim and the history. The very brief MAC suggests that the Medical Assessor failed to have regard to that context. Because of the assessment of Mr Sammour’s upper extremities and the effect of rounding, we need to consider only the s 323 deduction in respect of Mr Sammour’s cervical and lumbar spines.
The Medical Assessor was asked to assess a threshold dispute and to assess the body parts referred regardless of the date of the individual injuries. The date of injury is 1 May 2016 and it is clear from the ARD that is a deemed date. It is clear from the Reply that Minotaur consented to the referral of all body parts (except Mr Sammour’s left wrist which did not form part of the referral). It is the Commission’s practice to send proposed referrals to the parties for comment so that we presume neither took issue with the request to assess regardless of the date of injury.
As well as being inconsistent with the referral, the Medical Assessor’s findings are internally inconsistent. He determined that Mr Sammour’s spinal conditions were constitutional and said that he did not describe aggravation or exacerbation of those conditions in the course of his employment. He relied on two journal articles to support his contention. Despite that, a deduction of three-quarters implies he accepted that there was some work related pathology which represented one-quarter of the impairment. He did not explain why.
Minotaur sought to defend the Medical Assessor’s assessment and to argue that there was no evidence that Mr Sammour suffered an injury. Though his statement is concise,
Mr Sammour did describe heavy work. Minotaur’s submissions cannot be accepted on a medical appeal when Minotaur agreed in previous proceedings that Mr Sammour had suffered injuries to his cervical and lumbar spines as a result of the nature and conditions of his employment with a deemed date of injury of 1 May 2016 and consented to the referral of those conditions to the Medical Assessor in these proceedings.In Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd,[3] Emmett JA said:
“It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987 Act]. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury.”
[3] [2014] NSWCA 264 at [111].
If Minotaur sought to dispute injury, it should have done so when the claim was being determined by the Commission in previous proceedings. Minotaur is bound by its agreement as to injury.
Mr Sammour said in his statement prepared in 2023 that his work with Minotaur involved installing 2000 gas and electrical boxes which required him to work in awkward places doing manual work. He was required to lift cement bags and jump “up and down levels carrying hardware planks.” He ceased work because of pain in his arms and by 2010 the pain had spread to his shoulders and to his neck.
The most useful evidence to use in considering the s 323 deduction is the radiological evidence. There is none which predates the commencement of Mr Sammour’s employment with Minotaur in 2009 when he was about 34.
The first scan of Mr Sammour’s spine was taken on 25 October 2013 at the request of Dr Siu, neurosurgeon. It showed “[E]xtensive cervical and lumbar spine spondylotic changes as noted with widespread cervical and lumbar spine canal narrowing and cord signal change particularly at C5/6.” There are no reports from Dr Siu or Mr Sammour’s general practitioner, Dr Prakash, which explain why it was undertaken. A summary of attendances on Dr Prakash’s practice appears in the ARD[4] but the notes of those attendances were not provided.
[4] ARD p 1730.
The next relevant scan was of Mr Sammour’s cervical spine and was undertaken in 2019. Mr Sammour saw Dr Siu on 11 July 2019 for an “acute exacerbation of his left shoulder/arm/thoracic pain”. He considered that Mr Sammour was suffering from a severe bout of left radicular, arm, pain, and paraesthesia, most likely secondary to focal nerve root compression in the cervical spine.
While the MRI scan report of Mr Sammour’s cervical spine dated 12 July 2019 said that correlation with the 2013 scan was not possible, Dr Gacs said it appeared likely that there had been progression of spondylitic changes. She noted that there was a disc protrusion at C4/5. We observe that protrusion was not reported on the previous scan. She also reported C5/6 bilateral foraminal stenosis without nerve compression and C6/7 left foraminal stenosis caused by osteophytes or disc protrusion with compression to the left at C7.
Dr Siu reported to Dr Prakash on 17 July 2019 and noted that Mr Sammour continued to experience very severe left arm pain. He said that the MRI scan showed bilateral C5/6 and C6/7 foraminal stenosis secondary to disc/osteophyte complexes. Dr Siu considered that Mr Sammour’s left arm pain was in keeping with nerve root pain contributed to by the C6/7 “(+/- C5/6)” foraminal stenosis. Given the reported history, Dr Siu considered it was directly contributed to by Mr Sammour’s previous workplace injury. He recommended a spinal injection which was undertaken on 25 July 2019 and said he would write to the insurer.
There is a gap in the medical evidence until 2020 when Mr Sammour was admitted to Concord Hospital with a diagnosis of cauda equina syndrome, severe L4/5 central stenosis and a large left L5/S1 disc extrusion, urinary retention and severe left leg pain. On 29 August 2020 Dr Damodaran undertook a left L4/5 and L5/S1 decompression and left L5/S1 microdiscectomy. The Medical Assessor doubted that Mr Sammour had cauda equina syndrome because of the delay in surgery but the contemporaneous reports agree that he did.
Dr Damodaran undertook an anterior cervical discectomy and fusion at C5/6 and C6/7 in 2021 and said he undertook revision lumbar spine surgery some time in 2023.
Dr Damodaran also accepted that Mr Sammour suffered a neck injury. He wrote to Minotaur’s insurer in response to an email dated 27 October 2020 and said:
“…His workplace injury was in 2016 and sustained left-sided shoulder and wrist pain. He initially injured his right wrist requiring multiple surgical interventions. Due to this he started favouring his left shoulder and left side of neck for a long time. This has led to further worsening of his neck pain and neck related issues. Hence, the neck issues are related to his workplace injury . Repetition of activities such as heavy lifting, bending and twisting can lead to a cervical spine injury. Patients can develop shoulder and cervical spine issues concurrently….
The C5-6 and C6-7 demonstrates degenerative changes. Degenerative changes can be due to age and environmental factors such as heavy work . Patients can have acceleration of their degenerative condition secondary to heavy manual work. Maron has tried conservative management over many years and has tried to avoid surgery. He has failed conservative management, the best approach is for him to consider surgery. He requires a C5-6 and C6-7 anterior cervical discectomy and fusion. His symptoms are consistent with cervical radiculopathy and discogenic neck pain.”
In a report dated 21 May 2023 Dr Damodaran said:
“Maron's work has played a substantial contributing factor leading to cervical and lumbar radiculopathy requiring surgery. The degree of degeneration in his cervical, thoracic and lumbar spine far exceeds the degenerative changes seen in age related degeneration. Occupational exposure to non-neutral neck postures, work with hands above shoulders and high loads born through the upper extremities increases the risk of cervical spine injury requiring surgery. The spinal segments, upper and lower extremities work together as one biomechanical unit. Any injury and accelerated degeneration will affect the other systems and locomotion. Poor gait pattern over time will in turn affect the cervical and lumbar spine. If the cervical and lumbar spine remains untreated or poorly treated it will lead to chronic pain, poor coping mechanisms and behavioural issues. Maron cervical, thoracic and lumbar spine pathology is work related. The severe degree of degeneration far exceeds purely age related degeneration. Please see some supporting evidence below:
Risk factors for surgically treated cervical spondylosis in male construction workers: a 20-year prospective study
Jennie A Jackson 1, Per Liv 2, Arkan S Sayed-Noor 3, Laura Punnett 4, Jens Wahlström 5.Spine J. 2023 Jan;23(1):136-145. doi: 10.1016/j.spinee.2022.08.009. Epub 2022 Aug 24.
Neck Disorders among Construction Workers: Understanding the Physical Loads on the Cervical Spine during Static Lifting Tasks. March 2010 Industrial Health 48(2):145-53”
Those reports pre-date the resolution of the previous proceedings and the commencement of the proceedings seeking assessment by a Medical Assessor. They provide a description of the mechanism of the injuries to Mr Sammour’s cervical and lumbar spines and a basis for the referral by consent.
In Ryder v Sundance Bakehouse[5] 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 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.”
[5] [2015] NSWSC 526 at [45].
There is evidence of widespread spondylosis on the scans in 2013. The condition is constitutional. The extent of the spondylosis at that time and the progression on subsequent scans confirms that the injury is an aggravation of those changes and that a deduction under s 323 is warranted. The underlying condition did make a difference to the impairment assessed. The time which has elapsed and the sparse treatment records means that the true extent is difficult or costly to determine. We consider that a deduction of one-tenth is not at odds with the evidence.
Procedural fairness
Mr Sammour relied on Kinchela to argue that the Medical Assessor denied procedural fairness in relying on two journal articles. The Medical Assessor relied on the articles and the radiology to make a substantial deduction under s 323. He did not provide copies of the articles. Given the decision we have reached, it is not necessary to dwell on this issue but make the following comments.
Kinchela was an application for judicial review of a decision made by a review panel under the Motor Accident Injuries Act 2017 that Mr Kinchela suffered minor injuries for the purpose of that legislation. He argued that the review panel fell into jurisdictional error and denied him procedural fairness when they did not give him notice that they intended to rely on a series of articles to draw an adverse conclusion about his case. Walton J said that the articles were referred to extensively by the review panel to inform its conclusion that the injuries Mr Kinchela suffered were minor injuries. Walton J said:[6]
“As a result, the plaintiff has suffered a practical injustice, because he had not been given a fair opportunity to be heard about this material. Had the plaintiff been advised that the second defendant intended to rely on the epidemiological material, the plaintiff could have consulted his medico-legal experts for an opinion as to its probative value and could have made submissions in relation to the findings set out in the material. This has been denied to the plaintiff.
The second defendant had an obligation to provide the plaintiff with notice to confront the adverse material, and an obligation to provide an opportunity to respond before taking into account the material: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (per French CJ and Kiefel J); Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576; [1994] FCA 293. The second defendant therefore denied the plaintiff procedural fairness and the decision ought to be set aside for jurisdictional error.”
[6] At [34]-[35].
It is important to remember that a review panel under the motor accidents legislation is required to determine questions of causation and is undertaking a different task to the Medical Assessor. However, in this case, the Medical Assessor’s reliance on the articles coupled with his failure to understand the nature of the assessment required and his failure to disclose his reasoning did deny Mr Sammour procedural fairness. In not providing the articles, the Medical Assessor has made it difficult for Mr Sammour to understand the basis on which the decision has been made.
Minotaur relied on r 73 of the Personal Injury Commission Rules which provides:
“73 Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
Rule 72 defines a decision maker to include a Medical Assessor.
That rule does not stand for the proposition on which Minotaur relied – effectively, that the Medical Assessor can inform himself in any manner in which he thinks fit.
Abstracts of the articles on which the Medical Assessor relied are available on the internet.[7] They are merely two examples of studies of the relative causes of disc degeneration. Dr Damodaran highlighted other articles in which a different conclusion was reached. The articles on which the Medical Assessor relied do not provide a basis to make the large s 323 deduction that he did.
[7] and >
For these reasons, we have determined that the MAC issued on 29 August 2023 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:
W4809/23
Applicant:
Maron Sammour
Respondent:
Minotaur Construction Group 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 Rob Kuru and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
Body Part or system
Date of Injury
Chapter,
page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
% WPI
Proportion of permanent impairment due to pre-existing injury, abnormality or condition
Sub-total/s % WPI (after any deductions in column 6)
Cervical spine
1.5.2016
Chapter 4, Table 4.2, p 29
Chapter 15, p 392, Table 15.5
26%
1/10th
23%
Lumbar spine
1.5.2016
Chapter 4, paragraph 4.34, p 28
Table 4.2, p 29Chapter 15, p 384, Table 15.3
17%
1/10th
15%
Right upper extremity
1.5.2016
Chapter 2, p 12, paragraph 2.16
2%
1/10th
2%
Left upper extremity
1.5.2016
Chapter 2, p 12, paragraph 2.16
2%
1/10th
2%
Thoracic spine
1.5.2016
Chapter 15, Table 15.4
0%
0%
Total % WPI (the Combined Table values of all sub-totals)
37%
0
6
0