Secretary, Department of Communities and Justice v Pilgrim
[2022] NSWPICMP 311
•1 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Communities and Justice v Pilgrim [2022] NSWPICMP 311 |
| APPELLANT: | Secretary, Department of Communities and Justice |
| RESPONDENT: | Valmae Edna Pilgrim |
| APPEAL PANEL: | Member Brett Batchelor Medical Assessor Mark Burns Medical Assessor Roger Pillemer |
| DATE OF DECISION: | 1 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal by employer in respect of a Medical Assessment Certificate (MAC) following one further claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); following a previous award for the same injury; the employer submitted that the Medical Assessor made a deduction of 1/10th from the whole person impairment which was at odds with the available evidence and that he had not provided an explanation as to why such deduction was at not at odds with such evidence; the employer submitted that on the available evidence the section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction should have been greater than 1/10th; the employer also claimed that the Medical Assessor had failed to take into account the effects of a subsequent motor vehicle accident on the work related injury to the cervical spine; Held — finding that the 1/10th deduction was not at odds with the available evidence and that there was no evidence before the Medical Assessor to indicate what, if any, injury suffered in the motor vehicle accident had on the previous work related injury to the cervical spine; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 March 2022 the Secretary, Department of Communities and Justice (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor (the MA/Dr Kuru), who issued a Medical Assessment Certificate (MAC) on 28 February 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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 (the Panel) has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
On 14 February 2006 the Valmae Edna Pilgrim (the respondent/Ms Pilgrim) was working for the appellant employer as an assistant in nursing (AIN) when she suffered injury to her right shoulder. A patient who she was treating grabbed her by the right wrist and pulled forcibly on her arm. Ms Pilgrim immediately experienced pain in the arm around the shoulder, and the right side of her neck.
The respondent came under the care of Dr Burton, neurologist, and Dr Osborne, orthopaedic surgeon. She had an ultrasound guided injection into her right shoulder and underwent an arthroscopic acromioplasty repair of the shoulder on 24 October 2006, carried out by Dr Osborne. This surgery appears to have been complicated by a frozen shoulder.
On 22 March 2007 the respondent attempted to pull a sheet from under a patient at work and aggravated her right shoulder and neck. Ms Pilgrim’s employment with the respondent was terminated on 29 March 2007.
On 19 June 2009 the respondent was examined by A/Prof Leon Kleinman, orthopaedic surgeon, to assess permanent impairment as a result of injury on 14 February 2006 and 22 March 2007. A/Prof Kleinman issued a MAC dated 19 June 2009 containing his finding that the respondent had suffered 0% whole person impairment (WPI) as a result of injury to her cervical spine on 14 February 2006 and 22 March 2007. A/Prof Kleinman assessed 6% WPI as a result of injury to the right upper extremity. He apportioned eight-tenths to the injury on 14 February 2006, and two-tenths to the injury on 22 March 2007[1].
[1] Appeal Papers (AP) pp 611 and 615, noting that page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
On 13 November 2009 a Medical Appeal Panel revoked the MAC of A/Prof Kleinman dated 19 June 2009 and issued a new MAC which contained confirmation of the assessments of A/Prof Kleinman in respect of the cervical spine, an assessment of 5% WPI as a result of injury to the right upper extremity on 14 February 2006, and 1% WPI as a result of injury to the right upper extremity on 22 March 2007[2].
[2] AP pp 618 and 628.
On 20 March 2012 the respondent was involved in a motor vehicle accident when her vehicle was hit from behind as it was entering a roundabout. Ms Pilgrim sustained injuries to her left shoulder, arm and hand, and aggravated her neck. She received compensation for such injuries.
On 23 April 2019 the respondent was independently medically examined by Dr James Bodel, orthopaedic surgeon, in respect of injuries sustained on 14 February 2006 and 22 March 2007. Dr Bodel reported to the respondent’s solicitors on 10 August 2019[3]. He mentioned the motor vehicle accident in which the respondent was involved in 2012, noting that she suffered an injury to her left shoulder and that the Compulsory Third Party (CTP) claim was settled in 2014.
[3] AP p 62.
Dr Bodel found on examination that Ms Pilgrim had mechanical symptoms associated with disc pathology in the cervical spine, rotator cuff pathology in the right shoulder, and disc pathology in the lumbar spine caused by the injuries at work. He made the following assessments in respect of such injuries:
(a) cervical spine: 5% WPI plus 2% WPI for moderate compromise of activities of daily living (ADL), resulting in a total of 7% WPI;
(b) lumbosacral spine: 5% WPI, and
(c) right upper extremity (restriction of shoulder movement): 8% WPI.
Using the Combined Values Charts on p 604 of AMA 5, Dr Bodel arrived at a total of 18% WPI. He said that there was no indication clinically of any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment.
In a supplementary report dated 5 May 2020. Dr Bodel notes that he had carefully read the respondent’s statement dated 27 March 2020[4], and refers to Ms Pilgrim’s reference therein to experiencing back pain when she was asked to perform a work fitness assessment on 28 November 2008. In that report he also says:
“This lady also confirms that the insurer stopped weekly benefits in 2014. She had a motor vehicle accident in 2014, which I was aware of. That further aggravated the areas of injury that already existed.
She reports that she has difficulty with household maintenance and cleaning activities including ‘gardening, housekeeping, dancing yoga walking distances to remain fit’
This additional information does not cause me to alter the assessments previously given.”[5]
[4] AP p 47.
[5] AP pp 69-70.
On 3 June 2020 the respondent’s solicitor wrote to, QBE Insurance (Australia) Ltd (QBE) making a claim on behalf of the respondent for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the 18% WPI assessed by Dr Bodel in his reports dated 10 August 2019 and 5 May 2020[6].
[6] AP p 49.
On 2 September 2009 the respondent was independently medically examined by Dr Chris Harrington, orthopaedic surgeon, in order to assesses permanent impairment as a result of injury on 14 February 2006. This examination was arranged at the request of the solicitor for the appellant. Dr Harrington produced a report of that date[7].
[7] AP p 643.
Dr Harrington makes the following relevant comments in respect of the 2012 motor vehicle accident:
“I have preciously assessed Mrs Pilgrim for neck and left shoulder injuries in a motor vehicle accident on 20 March 2012. The assessment took place on 16 September 2013 on behalf of the Motor Accidents Authority, at which time a brief history of the work injury at work was noted.
…
She was subsequently involved in a motor vehicle accident in 2012 where she suffered a soft tissue injury to the left shoulder and whiplash injury to the cervical spine.
…
She also presents with restricted movement of the left shoulder which is attributed to the motor vehicle accident in 2012.
…
She denies any injury to her right shoulder as a result of the motor vehicle accident in 2012 however she did suffer a whiplash injury which required investigations and conservative treatment.”
Dr Harrington assessed 5% WPI in respect of injury to the cervical spine for asymmetric loss of movement and 2% WPI for ADL. He said:
“However it is my opinion that the effects of the work injury have resolved and the current presentation is due to the underlying degenerative changes in her cervical spine.
Using Table 15-3 she has DRE Lumbar Category I at 0% whole person impairment.
I understand she has received a lump sum compensation in 2009 for 5% WPI of the cervical spine and 1% WPI of the right shoulder. This should be considered within the current evaluation of permanent impairment.”
On 15 September 2020 QBE issued to the respondent a notice under s 78 of the 1998 Act in which it disputed the respondent’s claim for lump sum compensation in respect of injuries on 14 February 2009 because it disputed that the WPI in respect of those injuries exceeded the threshold set out in s 66(1) of the 1987 Act. QBE asserted:
“We note Dr Harrington has assessed a total of 6% whole person impairment comprised of 0% relating to the cervical spine, 0% relating to the lumbar spine and 6% relating to the right shoulder. This assessment places you below the ‘greater than 10% threshold’ set out in section 66(1) of the Workers Compensation Act 1987 (‘the 1987 Act’).” [8]
This assertion was based on the fact that on 25 November 2009 the respondent was paid lump sum compensation in respect of 6% WPI, the same level of impairment as assessed by Dr Harrington on 2 September 2020.
[8] AP pp 637-638.
QBE also referred to the 2012 motor vehicle accident in the s 78 notice dated 15 September 2009. It noted that Dr Harrington had addressed this in his report dated 16 September 2013 on behalf of the Motor Accidents Authority for the purposes of evaluating WPI, and that while Dr Harrington had not set out the details of his earlier assessment in 2013, he did note that Ms Pilgrim injured her cervical spine in that subsequent accident, an area also affected by the work injury in 2006. QBE went on to state:
“We sought particulars from your solicitors on 3 August 2020 in respect of that motor vehicle accident and the result/s of your CTP claim, as well as a signed authority permitting release of relevant records. We are yet to receive a reply.
We raise this issue in the event that the matter proceeds to the Workers Compensation Commission and put you on notice that we intend to ask for directions for provision of the outstanding information, if it is not received by that time.”[9]
[9] AP p 639.
On 19 October 2021, amended on 20 October 2021, the Commission referred the medical dispute to the MA, Dr Kuru, for assessment of WPI as a result of injury to the cervical spine, right upper extremity and lumbar spine on 14 February 2006 and 22 March 2007[10].
[10] AP p 31.
Dr Kuru examined the respondent on 8 February 2022 and issued the MAC on 28 February 2022[11].
[11] AP p 24.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because neither the appellant nor the respondent requested that Ms Pilgrim be re-examined by a MA who is a member of the Panel, and the Panel considers that there is sufficient information in the AP on which to base its decision.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Panel. In summary, they are as follows.
Appellant
The appellant refers to the background to the appeal which the Panel has summarised above. There is an error in [12] of the submissions in which it is stated that Dr Bodel assessed 19% WPI in respect of the cervical spine, lumbar spine and right shoulder.
The appellant notes the 7% WPI assessed by Dr Harrington in respect of injury to the cervical spine, and that he applied a 100% deduction from that assessment pursuant to s 323 of the 1998 Act to account for the natural progression of the respondent’s existing cervical spondylosis and on the basis that the effects of the work related aggravation had resolved.
The appellant appeals the assessment of the MA of the cervical spine, specifically the deduction pursuant to s 323, submitting that the deduction applied by the MA is at odds with the available evidence. The appellant also submits that the MA failed to apportion or adjust the level of WPI to account for the impact of subsequent, unrelated injurious events. The appellant therefore submits that the assessment of the MA was made on the basis of incorrect criteria in accordance with s 327(3)(c) of the 1998 Act and/or that the MAC contains demonstrable errors in accordance with s 327(3)(d).
The appellant submits that the MA has not complied with [1.27] and [1.28] of the Guidelines and relies on what Schmidt J found in Cole v WenalinePty Ltd[12].
[12] [2010] NSWSC 78 (Cole).
The appellant submits that all relevant medical practitioners and assessors accept that the respondent suffers from degenerative spondylosis in the cervical spine, and that it has been accepted that such condition was aggravated at the time of the work injury. The appellant submits that the work events did not cause further sinister pathology to be suffered in the cervical spine, a fact noted by the respondent’s treating surgeon, Dr John Christie, in his report dated 25 July 2007[13].
[13] AP p 139.
The appellant refers to the assessment of A/Prof Kleinman, noting that he found Ms Pilgrim to have a full range of motion of the cervical spine and assessed 0% WPI. He also accepted that the respondent had pre-existing degenerative changes in the cervical spine. The application of s 323 was not discussed, due to the 0% WPI assessed.
The appellant notes that the respondent has not returned to employment since 2007, and that she says she is restricted in the activities she could complete and the hobbies in which she could engage.
The appellant submits that the assessment by the MA took place almost 15 years after the work injury and almost 12 years after the prior assessment of A/Prof Kleinman. In submitting that the MA erred in applying the 1/10th deduction, the appellant says that this deduction was at odds with the available contemporaneous evidence provided in the Application to Resolve a Dispute (ARD and Reply, including that of Dr Christie and A/Prof Kleinman. The appellant submits, based on this evidence, that the effects of the work-related aggravation were not severe or impacting on the respondent’s ability to return to work.
The appellant submits that, having regard to the very nature of the degenerative condition of the respondent’s cervical spine, and to the findings of A/Prof Kleinman and Dr Harrington, the workplace aggravation has ceased, and that any symptoms suffered by the respondent relate to the progression of the pre-existing degenerative condition as opposed to any workplace aggravation.
The respondent notes the agreement of the MA with the assessment of Dr Harrington of 7% WPI of the cervical spine. The MA has then gone on to agree that the respondent suffers from pre-existing degenerative spondylosis of the cervical spine, and yet applies a 1/10th deduction only from his assessment on the basis that it is difficult or costly to determine. The appellant submits that the MA has not provided reasons as to why it is considered too difficult or costly to determine the extent of the contribution of the pre-existing condition to the current WPI.
The appellant submits that the MA has provided no explanation as to why he has departed from the assessment of Dr Harrington, despite his former agreement with that assessment.
Relying on what was said in Cole, the appellant submits that a s 323 deduction does not require that a pre-existing condition be symptomatic, just that such a condition existed and that it contributed to the respondent’s permanent impairment.
The appellant submits that the evidence of pre-existing impairment was sufficient to justify a s 323 deduction of greater than 10%.
In respect of the 2012 motor vehicle accident in which the respondent was involved, the appellant submits that Dr Harrington has in his report dated 2 September 2020 diagnosed the respondent with a whiplash injury suffered in that accident, that aggravated her underlying cervical spondylosis (emphasis in submissions). This is evidence, according to the appellant, that this was an accepted pre-existing degenerative condition, that was not caused by the work event(s).
The appellant submits that the respondent does not appear to have advised the MA of the motor vehicle accident, noting that Dr Kuru has written “Nil” for “Details of any previous or subsequent accidents, injuries or condition.”
The appellant refers to what the Court of Appeal said about s 66 of the 1987 Act, and events subsequent to a work injury being assessed, in Secretary, New South Wales Department of Education v Johnson[14], noting that s 323 has no role to play in any deduction to be made from an assessment of WPI in respect of events subsequent to the subject work injury. The appellant submits that, in accordance with Johnson, it was necessary for the MA to assess the degree of WPI of the respondent that was caused by or attributable to the work related injury only. It was found in Johnson that the MA is required to undertake a process of apportionment of WPI on circumstances where the WPI flows from a compensable injury and (emphasis added) a subsequent injury.
[14] [2019] NSWCA 321 (Johnson).
The appellant submits that the MA has made a demonstrable error by failing to apply an adjustment to account for the impact of the respondent’s subsequent motor vehicle accident and the effect it had in aggravating the respondent’s degenerative condition of cervical spondylosis.
Respondent
In reply, the respondent submits that the application of s 323 presupposes a degree of permanent impairment resulting from injury from which a deduction may be made in respect of any proportion due to previous injury or condition.
The respondent notes the decision in Cole, and also what Campbell J observed at [45] in Ryder v Sundance Bakehouse[15] that:
“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 is due to the pre-existing abnormality.” (emphasis in original)
[15] [2015] NSWSC 526 (Ryder).
This is the evaluative process to which s 323 is directed. The respondent submits however that absent any permanent impairment resulting from the injury there is no need and no basis to undertake the second part of the process, that is determination of the proportion of impairment due to previous injury.
The respondent submits that is the approach adopted by Dr Harrington and argued for by the appellant. Dr Harrington’s view was that the cervical strain had resolved and that Ms Pilgrim’s neck symptoms were unrelated to injury. That is, he found no impairment resulting from injury. The respondent submits that applying correct principles, there was no need for him to have considered s 323 at all. As a result his consideration of the question was of no assistance to the MA in his consideration of s 323(2).
The respondent submits that, implicitly, the MA did not share Dr Harrington’s view as he concluded that impairment had resulted from injury (emphasis in submissions). The MA was then obliged to consider the application of s 323. He (unlike Dr Harrington) concluded that the injury consisted of aggravation of a pre-existing cervical spondylosis. As a result, he concluded that a proportion of the impairment resulted from this condition.
The respondent submits that the next part of the MA’s statutory task was to determine whether the extent of the deduction will be difficult or costly to determine, and that Dr Kuru so found. The respondent submits that the appellant does not challenge this part of the determination of the MA in terms, although he complains about his reasons. The respondent submits that the process is evaluative and dependent upon the clinical judgement of the MA. If the MA concludes that the process is too difficult, there can be no basis for challenging that conclusion. Prima facie, the 10% deduction applied unless it was at odds with the available evidence.
The respondent submits that in order to make good its first ground of appeal, the appellant must identify that evidence, said to be at odds with the statutory assumption. The respondent submits that the best argument that the appellant is able to raise is that the 10% is at odds with the opinion of Dr Harrington. The difficulty with this proposition is that the MA clearly did not accept Dr Harrington’s opinion that there was no impairment resulting from injury. As s 323(3) makes clear, the available evidence is that accepted or preferred by the MA. As Dr Harrington’s opinion was not accepted or preferred in this respect, it requires no consideration on the question of evidence at odds with the assumed 10% (emphasis in submissions).
The respondent submits that there being no evidence identified that could be considered at odds with the 10%, no error is disclosed and this ground of appeal must fail.
The respondent submits that the gloss put on the decision in Johnson by the appellant is superficial and not entirely accurate. The relevant principles are to be found in the judgement of Emmett AJA (MacFarlan JA agreeing), which are set out and referred to hereunder.
The respondent submits that in Johnson, there was a live issue as to whether a later event had resulted in a greater impairment than otherwise would have resulted from injury. That was not the case in the current application. The respondent submits that, had it been so, one might have expected Dr Harrington, or the appellant, to reveal the outcome of his assessment on behalf of the motor accident insurer involved in the 2012 motor vehicle accident. Moreover, Dr Harrington, the primary medical contradictor, did not offer any relevant opinion in this respect. He considered a left shoulder impairment to result from the motor vehicle accident but provided no similar opinion in respect of the cervical spine.
The question simply did not arise before the MA and he was not required to give it consideration. This ground of appeal should be dismissed.
The respondent submits that if a Panel was to find error in the MAC, any re-examination ordered by it should extend to an assessment of the lumbar spine. The respondent submits that the MA erred in his clinical judgement in assessing lumbar impairment as DRE (diagnosis related estimate) I, but acknowledges that such an error is not amenable to appeal pursuant to s 327 of the 1998 Act.
FINDINGS AND REASONS
Section 323 deduction
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[16] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[17]).
[16] [2008] NSWCA 116.
[17] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[18] 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.
[18] [2006] NSWCA 284
Section 323 (1), (2) and (3) are in the following terms:
“(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.
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.”
Paragraphs 1.27 and 1.28 of the Guidelines are in the following terms:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
At [30] in Cole, Schmidt J said:
“30 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 injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”
It is not in dispute that as at the date of the first injury the subject of the current proceedings, the respondent was suffering from degenerative spondylosis in the cervical spine, and that the injury represents aggravation of pre-existing condition. That was the finding of the MA at [11(a) and (b)] of the MAC[19]. The appellant submits that the evidence of pre-existing impairment was sufficient to justify a s 323 deduction of greater than 10% from the 7% WPI in respect of injury to the cervical spine assessed by Dr Kuru.
[19] AP p 28.
The appellant relies on the assessments of A/Prof Kleinman and Dr Harrington in support of this submission.
A/Prof Kleinman assessed the respondent as having sustained 0% WPI as a result of injury to the cervical spine on 14 February 2006 and 22 March 2007. As the appellant correctly observes (noted at [33] above), for this reason he did not discuss the application of s 323.
Dr Harrington assessed 7% WPI in respect of the cervical spine, but expressed the opinion that the respondent’s current presentation was due to the underlying degenerative changes in the cervical spine. Dr Harrington was thus assessed 0% WPI as a result of the work injury. Therefore, in the same way as A/Prof Kleinman was not required to discuss any s 323 deduction, so any discussion by Dr Harrington of a deduction was not required and of no assistance to the MA. The Panel accepts the respondent’s submissions in this regard, referred to at [47]-[48] above. This finding is consistent with the comment of Campbell J in Ryder referred to at [46] above. Any degree of pre-existing abnormality made no difference to Dr Harrington’s assessment of 0% WPI as a result of the work injury.
Notwithstanding this, the appellant relies upon the assessments of A/Prof Kleinman and Dr Harrington to justify a s 323 deduction greater that 1/10th. The MA clearly did not accept Dr Harrington’s opinion that there was no impairment resulting from injury, so that his opinion that the effects of the work injury had ceased was of no assistance to the MA.
Having assessed the respondent as suffering from 7% WPI as a result of the work injury (the same assessment as Dr Harrington who found that such impairment was not as a result of the workplace injury), Dr Kuru then had to determine the s 323 deduction. As submitted by the respondent, the appellant does not take issue with the finding of the MA that the extent of the deduction will be difficult or costly to determine, but does submit that the MA has not explained why this is so, and why the 1/10th deduction is at odds with the available evidence. Apart from the evidence of A/Prof Kleinman and Dr Harrington, the appellant points to the report of Dr Christie dated 25 July 2007, taken after the second work injury on 22 March 2007. Dr Christie comments on a CT scan of the cervical spine which he says overall does not look too bad. He notes comment on some foraminal stenosis on the right at C3/4 and on the left at C4/5, but did not think those findings were that dramatic, and notes that Ms Pilgrim certainly did not have any nerve root symptoms to go with those findings. The Panel does not find that such findings are at odds with a 1/10th deduction for pre-existing condition.
Available evidence to be considered by the MA also includes that of Dr Bodel, to which he refers in the MAC. It is clear that the MA did not accept or prefer the evidence of Dr Harrington when considering the s 323 deduction to be made from the assessment of 7% WPI.
The Panel finds that there is no error on the part of the MA in respect of the deduction he made pursuant to s 323 of the 1998 Act of 1/10th from his assessment of 7% WPI in respect of injury to the cervical spine.
The 2012 motor vehicle accident
Emmett AJA at [70] in Johnson said the following:
“The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the Worker as a result of the First Injury. That question was one of fact and the Appeal Panel’s reasoning was consistent with conventional principles of causation. There are three possible categories where an earlier injury is followed by a later injury, as follows:
·Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
·Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
·Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
The Panel accepts the respondent’s submissions referred to above at [54]-[55] in respect of any effect that the 2012 motor vehicle accident may have had on the respondent’s cervical spine. The Panel also notes the comment in the s 78 notice issued by QBE on 15 September 2009, referred to at [20] above. The insurer appears not to have followed up on what was foreshadowed in the notice in respect of the motor vehicle accident and the CTP claim.
The Panel is obliged to determine the appeal on the basis of the MAC and the contents of the AP. Although the MA answered “Nil” to the question at [4] in the MAC “Details of any previous or subsequent accidents, injuries or condition:”, he did have before him the reports of Dr Bodel and Dr Harrington, both of which contained reference to the motor vehicle accident. There was however nothing in the AP to indicate what, if any, effect the motor vehicle accident had on the respondent’s cervical spine.
The Panel finds no demonstrable error in the MAC in the alleged failure of the MA to consider the effects of such accident on the respondent’s cervical spine, or that his assessment of WPI is an incorrect representation of the respondent’s impairment as a result of the work related injuries.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 February 2022 should be confirmed.
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