State of New South Wales (NSW Police Force) v Caddy

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (NSW Police Force) v Caddy [2022] NSWPICMP 309
APPELLANT:	The State of New South Wales (NSW Police Force)
RESPONDENT:	Peter Caddy
APPEAL PANEL:	Member Deborah Moore Medical Assessor David Crocker Medical Assessor Drew Dixon
DATE OF DECISION:	28 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation for injury to his back, right leg at or above the knee and left leg above the knee on 31 January 2001; injury to his right lower extremity on 30 April 2004 and injury to his left lower extremity and lumbar spine on 30 July 2007; approved Medical Specialist made an error in respect of the date the respondent commenced employment in assuming it commenced in February 1998 when in fact it commenced on 1 July 1990; Medical Assessor failed to consider apply section 65(1) of the of the Worker Compensation Act 1987 and section 323 of the Workers Compensation Act 1998 in relation to the deduction of any impairment resulting from the injury on 1 February 1998; Medical Appeal Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 January 2022 the State of New South Wales (NSW Police Force) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Jonathan Negus, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 March 2022.
The respondent to the appeal is Peter Caddy (Mr Caddy).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 April 2016 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Caddy sustained an injury to his back, right leg at or above the knee and left leg above the knee on 31 January 2001. He sustained an injury to his right lower extremity on
30 April 2004. He sustained a further injury to his left lower extremity and lumbar spine on
30 July 2007.
The matter was referred to the MA, Jonathan Negus, on 24 June 2021 for (i) assessment under the Table of Disabilities of the back, right leg at or above the knee and left leg at or above the knee (date of injury 31 January 2001), (ii) assessment of whole person impairment of the right lower extremity (date of injury 30 April 2004) and (iii) assessment of whole person impairment of the lumbar spine and left lower extremity (date of injury 30 July 2007).
The MA examined Mr Caddy on 3 December 2021 and assessed 50% permanent impairment for the back, 30% permanent loss of efficient use of the right leg at or above the knee and 30% permanent loss of efficient use of the left leg at or above the knee in respect of the injury on 31 January 2001. The MA deducted 1/10^th as the proportion of permanent impairment due to pre-existing injury, abnormality or condition in the back, resulting in an assessment of 45% permanent loss of use of the back in respect of the injury on
31 January 2001. The MA assessed 18% WPI of the right lower extremity (knee) in respect of the injury on 30 April 2004 and the MA assessed 39% WPI (25% for the lumbar spine and 18% for the left lower extremity) for the injury on 30 July 2007.

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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested that Mr Caddy be re-examined by a MA who is a member of the Appeal Panel.
The appellant submitted that re-examination was required because the MA incorrectly assumed that Mr Caddy was employed by the appellant from February 1988 when in fact he was then employed by the State Rail Authority of New South Wales (SRA) and only commenced employment with the respondent on 1 July 1990. The MA, therefore, failed to address the pre-existing condition and previous injury on 1 February 1988 and apply s 65(1) and (2) of the Worker Compensation Act 1987 (the 1987 Act) to exclude the degree of permanent impairment from the incident on 1 February 1988 and exclude that from the present assessment. The MA also did not apply the provisions of s 323 of the 1998 Act to deduct the proportion of the loss and impairment due to previous injury and pre-existing conditions.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Mr Caddy to undergo a further medical examination because there was insufficient evidence on which to make a determination.

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.

Further Medical Examination

Dr David Crocker of the Appeal Panel conducted an examination of Mr Caddy on
18 July 2022 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the MA 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 have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    the MAC contained demonstrable error and was made on the basis of incorrect criteria;
(b)    the MA failed to appreciate that the personal injury sustained by Mr Caddy on
1 February 1988 when he fell from a demountable building, requiring immediate hospitalization and decompressive surgery to his lumbar spine, was sustained during his employment with a previous employer, the SRA (the previous injury);
(c)    the MA made an incorrect assumption of fact in respect of the date Mr Caddy commenced employment with the appellant in assuming it commenced in February . 1998 when, in fact, it commenced on 1 July 1990;
(d)    the MA failed to address and consider the significant factual and medical evidence relied on by the appellant in respect of the material contribution by
Mr Caddy’s previous personal injury to the subsequent injuries which were the subject of the present application;
(e)    the MA failed to appropriately apply s 65(1) of the 1987 Act to the personal injury on 1 February 1988 and similarly, any impairment which arose out of that incident, so as to exclude them from the present assessment of permanent loss and impairment in respect to the subject injuries arising out of or in the course of the employment with the appellant;
(f)    the MA failed to appropriately apply s 323 of the 1998 Act to deduct any proportion of loss and impairment due to the previous injury and pre-existing conditions;
(g)    the MA has not applied s 323(1) of the 1998 Act where there was sufficient medical evidence to assess the relevant deduction including contemporaneous factual and medical evidence in respect to the previous injury sustained on
1 February 1988 and earlier assessments of permanent loss and impairment by qualified Medical Assessors;
(h)    Mr Caddy was previously employed by the SRA and during the course of that employment, he sustained a personal injury on 1 February 1988;
(i)    Mr Caddy bought a claim against the SRA for lump sum compensation, which was resolved by consent determination of the Compensation Court of New South Wales on 17 February 1988. The parties agreed Mr Caddy’s impairment at the time was 25% for the back and 10% for the loss of the use of the left leg. The degree to which Mr Caddy's impairment related to his employment with the SRA and was compensable as at the date of award was agreed at 15% permanent impairment of the back and 5% loss of use of the left leg. The parties agreed that Mr Caddy had no impairment or loss of use of the right leg;
(j)    Mr Caddy commenced employment with the appellant on 1 July 1990 (Reply page 63);
(k)    on 23 February 1996, Mr Caddy was at home preparing lunch when he turned to get something out of a cupboard and felt a sharp stabbing pain in his lower back which radiated to his left leg. He took three days off work and was referred to the neurosurgeon, Dr William Sears. On 15 March 1996, Dr Sears issued a WorkCover Authority Medical Certificate in which he diagnosed the symptoms reported by Mr Caddy on 23 February 1996, as caused by a lumbosacral nerve root irritation, which he opined was a result of the previous injury sustained in February 1998;
(l)    on 26 March 1996, Dr Sears performed an L3/4 laminectomy. On 23 August 2001 Dr Sears performed a L4/5 laminectomy and right L5 rhizolysis;
(m)     on 18 September 2001 Michelle Reincastle, manager for the appellant, wrote to the workers compensation department of SRA noting that Mr Caddy was injured on 1 February 1998 while he was employed with SRA. She noted that she had been advised that SRA would consider accepting liability for these recurrences of Mr Caddy’s injury;
(n)    letters from SRA dated 25 September 2001, and 1 November 2001 confirmed their acceptance of liability for weekly payments in respect of the time Mr Caddy took off work between 23 February 1996 and 27 April 1996 and between February 1999 and 20 February 1999;
(o)    in March 2002 Mr Caddy reported persistent pain in his low back following a weapons training exercise he performed in the course of his employment for the appellant;
(p)    on 28 March 2002, SRA wrote to the appellant accepting liability for further spinal surgery and relate related costs of L4/5 fusion surgery and pre- approved payment of weekly benefits between 18 March 2002 to 18 April 2002. On
2 April 2002 Dr Sears performed L4/5 decompression and fusion surgery. In a letter dated 24 June 2002, further approval was given by SRA for weekly compensation payments to be made to Mr Caddy between 19 April and 13 June 2002;
(q)    in a report dated 10 November 2008, Dr James Bodel noted a history of the previous injury in February 1998 as having occurred while Mr Caddy was working for SRA. Dr Bodel opined that Mr Caddy’s pathology initially commenced with a disc rupture when he was employed with SRA and that he had recurrent episodes of injury at work, which had led to further disc pathology and further surgery on the back. Dr Bodel said that most of these episodes had arisen as a result of his work with the NSW Police Service and his current condition in the back was therefore due to a mix of pathology that arose originally with the SRA and subsequently with the Police Service. Dr Bodel stated that the condition in the back was not a disease process of gradual onset, as it was instigated by a disc rupture;
(r)    the solicitors then acting for Mr Caddy obtained a report from Dr J S Scougall dated 9 July 2008 in which a detailed history was recorded including the previous injury on 1 February 1998. Dr Scougall diagnosed Mr Caddy as having chronic soft tissue lesions in the back, occurring in association with for operations for his back, the last being a spinal fusion;
(s)    Dr Scougall believed that Mr Caddy’s back condition diagnosed was causally related to the injury on 1 February 1988. Dr Scougall opined that Mr Caddy’s lower back condition had been aggravated by his employment with New South Wales Police Force. In respect of permanent loss and impairment assessed,
Dr Scougall attributed four-fifths to the pre-existing injury and conditions. After applying that deduction pursuant to s 323 (1), the resultant assessment of
Mr Caddy’s permanent impairment arising from his employment with the appellant was 6% WPI;
(t)    on 11 February 2010, a Complying Agreement was entered into by Mr Caddy and the appellant and their then workers compensation insurer. In the complying agreement, one injury was a “nature and conditions injury to the back originating in 1982 including incidents 1 February 1988, 23 February 1996, 1998 and August 2001 compensation related to deterioration between previous determination 17 February 1998 and 1 January 2002”. It is unknown and inexplicably why in relation to the nature and conditions disease injury, reference to the previous personal injury sustained on 1 February 1988 was made. The further permanent loss of at the back for that injury was agreed at 8% under the Table of Disabilities. A second injury was described as a separate and distinct injury to the back between 1 January 2002 and 11 February 2010, including incident
23 March 2002, and spinal fusion surgery in 2002. Consistent with the application of a four-fifths deduction under s 323, and the assessment by Dr Scougall,
Mr Caddy’s WPI arising from his disease injury, aggravated by employment with the appellant was agreed at 6% WPI;
(u)    in the present claim, a report was obtained by the appellant from Dr Peter Bentivoglio, who found that the problems in Mr Caddy’s back and his presently assessable permanent loss under the Table of Disabilities were as a consequence and wholly attributable to the previous injury sustained on
1 February 1988;
(v)    the MA incorrectly recorded at Part 4 of the MAC under ‘history relating to the injury’ that Mr Caddy “worked at State Rail Authority as a transit officer since 1975 and from February 1988 for the New South Wales Police as a general duties police officer” whereas the correct history is that Mr Caddy commenced this his employment with the appellant on 1 July 1990;
(w)   the MA was of the opinion it was reasonable to apply a 10% deduction under
s 323(2) of the 1998 Act in respect of Mr Caddy's lumbar spine, left leg at or above the knee and right leg at or above the knee due to evidence of pre-existing degenerative spinal disease which was symptomatic. The standard 10% deduction pursuant to s 323 is only relevant in relation to pre-existing or previous injury insofar as the assumption is not at odds with the available evidence. It was incumbent on the MA to consider any impairment or apportionment of Mr Caddy’s overall impairment relating to the injury sustained on 1 February 1988 prior to his employment with the appellant. There is no indication in the MAC, that the MA had appropriately undertaken the task;
(x)    there was sufficient factual and medical evidence to support consideration for an appropriate deduction. Under s 323(1) relating to the worker’s previous injury and the MA failed to appropriately consider the deduction to be applied under this section;
(y)    in addition or in the alternative, the MA failed to appropriately apply s 65(1) of the 1987 Act to assess the degree of permanent impairment that resulted from and arose out of the incident on 1 February 1988, so as to exclude them from the present assessment of permanent loss and impairment in relation in respect of the worker’s injuries arising out of or in the course of employment with the appellant. The MA ought to have regard to the principles discussed in Ozcan v McArthur Disability Services Ltd [2021] NSWCA 56;
(z)    the MA failed to apply an appropriate deduction under s 323 of the 1998 Act for pre-existing injury and conditions as a result of his error in not understanding that Mr Caddy’s personal injury on 1 February 1988 was sustained in employment with a different employer and not with the appellant. The MA gave insufficient consideration of the evidence available which would have reasonably enabled a deduction to be made pursuant to s 323(1) of the 1998 Act as opposed to the arbitrary 10% deduction applied under s 323 (2);
(aa)    under part 11 of the MAC titled “Deduction (if any) for the proportion of impairment that is due to previous injury or pre-existing condition or abnormality”, the MA acknowledged evidence of pre-existing degenerative spinal disease, which was symptomatic. The MA applied a nil deduction for previous injury. The MAC consequently, assessed the deduction proportion as one-tenth. The material relied on in the Application and Reply includes substantial evidence of previous injury and pre-existing issues as outlined above. The worker’s records indicate Mr Caddy sustained severe injuries prior to commencement of employment with the appellant such that he was considered to have suffered permanent impairment.
Mr Caddy’s submissions include the following:
(a)    the assertion that the MA failed to appreciate that Mr Caddy was an employee of SRA when he fell from a building on 1 February 1988 and injured his low back is effectively relied upon as an error in fact finding;
(b)    however, the Application to Resolve a Dispute (ARD) filed on or about
10 September 2021 only attached the s 78 Notice dated 27 July 2021(which just dealt with the right knee) and the s 78 Notice dated 29 July 2021 (which just dealt with the left knee). The Reply merely described that the issues between the parties were confirmed as per the Dispute Notices attached to the ARD. Neither of these two s 78 Notices raised any issue with respect to when Mr Caddy commenced to be an employee of the NSW Police Force;
(c)    the Reply did not clearly raise any other issues although it did attach a new Dispute Notice dated 30 August 2021 which in its detail asserted that Mr Caddy was an employee of the SRA on 1 February 1988. However, the appellant does not appear to have done anything to bring this assertion/dispute to the attention of the Commission. This is presumably why the Commission did not arrange for a Commission Member to deal with the employment issue before the matter was referred to the MA;
(d)    it is not the role of a MA to examine the annexures to a Reply to try to identify new issues, which do not form part of the MA’s decision making function. Hence, an error by an MA has not arisen because it was never his role to deal with any employment issues;
(e)    the appellant asserted some kind of error in that the MA “failed to address and consider evidence …in respect of previous personal injury”. This assertion was incorrect as the MAC contained a detailed history of relevant previous symptoms and treatment of the low back (as set out on pages 2 to 4) as well as the previous symptoms and treatment of the right knee as described on page 4. The MA then further described the low back symptoms at page 8 as involving “pre-existing degenerative spinal disease which was symptomatic” before he decided to apply s 323(2);
(f)    the appellant asserted the MA “failed to appropriately apply s 65(1) of the 1987 Act to assess the degree of permanent impairment that resulted from the injury on 1 February 1988 so as “to exclude (it) …from the present assessment”. This ground is faced with the fundamental problem that the MA had effectively been asked by the terms of the referral to include the effects of the incident on
1 February 1988. The MA was asked to assess the degree of impairment that resulted from an injury that was simply deemed to have occurred on
31 January 2001. The history of it involved matters which dated back many years including the particulars of injury at page 8 of the ARD specifically referred to an incident when on 1/02/1988 he fell from a height of about 1 metre while leaving a demountable building. Hence it was part of the MA’s statutory function to include it rather than exclude it;
(g)    the assertion that the MA “failed to appropriately apply s 323 to deduct any proportion of the loss and impairment due to the previous injury and pre-existing conditions”, presumably related to the incident on 1 February 1988. It was actually part of the MA’s role, in dealing with the matters referred to him, to assess the degree of impairment resulting from an injury deemed to have occurred on 31 January 2001 and which involved various activities and incidents which had occurred over the prior years - including the incident on
1 February 1988. Hence rather than been required to make a deduction with respect to it, the terms of his referral required him to do the opposite;
(h)    for the reasons described above, it is submitted that none of the grounds of appeal are made out and that the matter should not proceed to a Medical Appeal Panel, and
(i)    there may be some confusion and difficulties surrounding the question of whether Mr Caddy was variously over time an employee or officer of the State of NSW, or SRA or what was the Police Service of NSW but these are not matters within the scope of what a MA or a Medical Appeal Panel deals with.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

The Medical Assessment Certificate

Under “History relating to the injury”, the MA wrote:
“Date of injury (1): 31/01/2001
Body parts/systems referred: Back
Right leg at or above the knee
Left leg at or above the knee
Method of assessment: Table of Disabilities
In 1982, Mr Caddy describes a back injury when he went to get up from a chair which collapsed, causing him to twist his back.
In July 1983, he had a collapse in the bathroom getting ready for work, leaving him with lower back pain radiating down his left leg and needing a 2 week stay as an inpatient at Sydney Hospital.
On 1 February 1988 fell from a height of around about 1m while leaving a demountable building at work. He had numbness down the left side from his belly button down and was taken to Hornsby hospital by ambulance before he was transferred to Royal North Shore Spinal Unit. He was diagnosed with L4/5 spinal stenosis
2 February 1988 he underwent an L4/5 laminectomy and decompression by Dr Robin
Rushworth (Neurosurgeon). He underwent spinal rehabilitation for 4 months. He was able to return to full duties with ongoing symptoms.
In 1996 he had a recurrence of radiating back pain diagnosed as a recurrent L4/5 disc
herniation and he underwent an L3/4 laminectomy by Dr William Sears (neurosurgeon) on 26 March 1996. He returned to full duties after 1 month.
In 2001 following repeated lower back bending whilst on his usual patrols Mr Caddy
experienced an exacerbation of his lower back pain for which he was treated with
physiotherapy and analgesia. His symptoms continued and he was diagnosed with L4/5 spinal stenosis and possible herniation. On 23 August 2001 he underwent L4/5
laminectomy and right L5 rhizolysis under Dr Sears.
In the post operative period he was found to have a synovial cyst at the medial L4/5 facet joint which was treated with a cortisone injection with little effect.
On 2 April 2002 Dr Sears performed L4/5 decompression and fusion.
Date of injury (2): 30/04/2004
Body parts/systems referred: Right lower extremity
Method of assessment: Whole Person Impairment
On 30/04/2004, he was kicked in the right knee by a female patient who lost control and was violent at a medical clinic opposite Royal North Shore Hospital. He was trying to restrain her but she was pregnant and he was trying to be cautious when she kicked out and caught him in the front of his knee, hyperextending the knee. He found it
uncomfortable immediately but by the time he was back at the station, it was stiff and swollen.
He saw his GP who ordered x-rays which showed some degenerative change in the
retropatellar and medial compartments. He was off work for 3 days.
He continued to have pain fare ups and was referred to Dr Riley at The SAN who did an MRI scan. This showed widespread degenerative change throughout the knee. Dr Riley advised that we would likely need a knee replacement in the future and to avoid an arthroscopy if possible.
He saw Myles Coolican on 04/07/2005 with ongoing swelling despite pain killers and Dr
Coolican performed an arthroscopy on 25 July 2006 for chondroplasty and partial
meniscectomy. At the time of surgery, there was noted to be advanced arthritic change in the medial compartment and significant articular cartilage damage in the retropatellar
region. If anything this surgery made his symptoms worse.
He was referred to Jun Nagamori to consider chondrocyte implantation surgery but was
found not to be suitable.
His knee worsened over the next 12 months and after being referred to Dr Gursel, on
03/07/2007 he had a right total knee replacement with rehab at Mount Wilga and a good recovery.
He describes developing left knee pain from around 2005 due to his right knee injury.
Date of injury (3): 30/07/2007
Body parts/systems referred: Lumbar Spine
Left lower extremity
Method of assessment: Whole Person Impairment
He describes as a result of the nature and conditions of employment from 30/04/2004-
30/07/2007 his left knee started to become painful, and his limp was aggravating his back pain.
He underwent a left total knee replacement on 03/12/2007 under Dr Ali Gursel, suffering a post-operative DVT in the left calf and having rehab at Mount Wilga”.
Under “Work History”, the MA wrote:
“Work history including previous work history if relevant: He has worked at State Rail Authority as a Transit Officer since 1975 and from February 1988 for New South Wales Police as a General Duties Police Officer.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Mr Caddy is a 72 year old gentleman who has suffered a number of injuries as a result of his work, dated:
- 31/01/2001 Lower back and lower extremities
- 30/04/2004 Right lower extremity
- 30/07/2007 Lumbar spine and left lower extremity dated
His lumbar spine injuries have led to stenosis and nerve root impingement at L3/4 and L4/5 requiring multiple surgeries ending with a fusion surgery.
His right knee was injured with damaged cartilage surfaces leading to the arthroscopy to remove the loose bodies and subsequent post traumatic arthritis. His left knee has developed osteoarthritis. Both knees have been replaced.”
Under “Reasons for Assessment”, at 10(c) the MA wrote:
“Date of injury 31/01/2001
50% - back
30 % - right leg at or above the knee
30% - left leg at or above the knee
Date of injury – 30 April 2004:
18% - WPI – right lower extremity
Date of injury – 30 July 2007:
18% WPI – left lower extremity
25% WPI - lumbar spine”
At Pt 11 of the MAC under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” the MA wrote:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) He had evidence of pre-existing degenerative spinal disease which was
symptomatic.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person
impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Nil
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence).”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Deduction for previous injury

The Guidelines at Guideline 1.16 (a) under “Principles of assessment” provide:
“‘The proportion of permanent impairment due to any previous injury, pre-existing
condition or abnormality, if any, in accordance with the diagnostic and other objective criteria as outlined in these Guidelines.
…
C. In calculating the final level of impairment, the assessor needs to clarify the
degree of impairment that results from the compensable injury/condition. Any
deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated…”
The Guidelines at Pt 2 under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:
“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.”
Section 65 of the 1987 Act provides:

“65 Determination of degree of permanent impairment

(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.”

Section 323 of the 1998 Act provides:
“(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.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(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.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The Appeal Panel reviewed the evidence in this matter.
The appellant submitted that the MA incorrectly assumed that Mr Caddy was employed by the appellant on 1 February 1988 when he fell from a demountable building, requiring immediate hospitalization and decompressive surgery to his lumbar spine and that this injury was, in fact, sustained during his employment with a previous employer, the SRA. The appellant argued that as a result of this incorrect assumption of fact the MA failed to address and consider the evidence in respect of the material contribution by Mr Caddy’s previous personal injury to the subsequent injuries which were the subject of the present application.
The Appeal Panel accepted that the MA assumed that Mr Caddy was employed by the appellant when he sustained an injury to his lumbar spine on 1 February 1988. The assumption made by the MA appeared to be based on information given by Mr Caddy in his statement dated 8 September 2021 which reads as follows:
“3. I started working for the State Rail Authority of New South Wales as transit officer in 1975.
4. In February 1988 NSW Police took over my employment and from that time I became employed by the NSW Police as a general duties police officer. But I did the same work as what I had been doing with the State Rail Authority of New South Wales, that being security patrols and security work around the NSW Trains.”
The statement dated 8 September 2021 was, of course, written more that 33 years after the injury on 1 February 1988. The MA did not refer to the more contemporaneous documents in the ARD and Reply, which clearly showed that Mr Caddy was in fact employed by SRA as at 1 February 1988 and was not employed by the appellant until 1 July 1990.
The Appeal Panel based its conclusion that Mr Caddy was employed by SRA as at
1 February 1988 on the following documents:
(a)    Employees Statement of New Injury on State Rail Authority Form dated
7 February 1988 and signed by Mr Caddy referred to a new injury on
1 February 1988 (page 216 ARD) which was caused when Mr Caddy fell out of a doorway and fell heavily on an iron grate at the foot of the stairs;
(b)    Consent Orders of the Compensation Court of NSW (Matter No 7708/97) between Peter Caddy and the State Rail Authority of New South Wales dated 29 May 1998 (page 218 ARD);
(c)    report of Dr J S Scougall dated 9 July 2008 in which Dr Scougall took a history of an injury on 1 February 1988 “when employed by State Transit Authority”.
Dr Scougall also noted that Mr Caddy had "joined the StateRailAuthorityon I July 1975asa TransitPolice Officer (page 241 ARD). Under “Work History” (page 245 ARD) Dr Scougall noted: “He had joined the State Rail Authority on I July 1975 as a Transit Police Officer. He worked over the years as noted above in that capacity. There was an administrative change in the organisation in that he was transferred to receiving his instructions from NSW Police as from
1 February 1988 but he was still paid by the State Rail Authority.”;
(d)    letter from Gair Legal, representing the insurer, dated 4 May 2021 to Brydens requesting further and better particulars of Mr Caddy’s claim for lump sum compensation (page 264 ARD) in which confirmation is sought of the precise date that Mr Caddy ceased employment with SRA. Paragraph 5 reads: “The employer's records indicate your client commenced his employment with the New South Wales Police Force on 1 July 1990.Ifthat is correct, please advise whether your client amends his claim the permanent impairment as arising from the nature and conditions of his employment (disease injury) from 1 July 1990 to 31 December 2001?” Paragraph 7 reads: “The worker also asserts that the injury arises from ‘a number of instances of back pain and injury including on 1 February 1988 when he fell from a height of about 1 m when he was leaving a demountable building.’ Could you please: a. Confirm the entity that employed the worker on 1 February 1988…”;
(e)    letter from Brydens dated 17 May 2021 to Gair Legal (page 275 ARD) providing further and better particulars of Mr Caddy’s claim stating: "It would appear that the employer on 1 February 1988, was the State Rail Authority of NSW. However, we would be grateful to receive those documents you have in your possession from the employer indicating the date that he became an employee of NSW Police 1 July 1990”;
(f)    letter from Mr Caddy dated 22 March 1996 to Workers Compensation Section of SRA requesting worker compensation coverage for an injury sustained on 23 February 1996 as a result of injury on 1 February1988 while still employed by SRA (page 15 Reply). In this letter, Mr Caddy wrote: “On 1 February 1988, I was on duty in my capacity as a Senior Detective for the Transport Investigation Branch of the State Rail Authority. In company with Senior Detective Talbot and detective 1^st Class Biles we attended the office situated on number four (4) platform at Hornsby Railway Station. When leaving the office my foot caught the “draught excluder” causing me to fall out of the doorway and falling heavily to the ground. Upon impact I experienced sharp pain across my lower back radiating down both legs, the left in particular and left hip. I was unable to move and subsequently transported by ambulance to Hornsby Hospital...”;
(g)    file note dated 27 August 2001 of discussion between Val from NSW Police and Adrian Kimber of SRA workers compensation about payment of leave required for proposed back surgery by SRA (page 21 Reply);
(h)    letter from Ms Reincastle, Manager, NSW Police Service North Shore Local Command Area to SRA dated 18 September 2021 stating that Mr Caddy transferred to NSW Police on 1 July 1990 (page 22 Reply);
(i)    letter from Ms Reincastle, Manager, NSW Police Service North Shore Local Command Area to Manager Accounts Branch NSW Police Service dated
10 October 2021 noting SRA accepted liability to pay weeklies in respect of back injury on 1February 1988 (page 28 Reply);
(j)    report of Dr Bentivoglio dated 15 July 2021 in which he noted that Mr Caddy had a fall in 1988 “with the State Rail Authority” when he walked out of an office and resulted in him needing to have surgery (page 43 Reply);
(k)    NSW Police Force Individual Profile Form which noted “Hire Date 01/07/1990” (page 63 Reply);
(l)    in the s 78 Notice dated 30 August 2021 the insurer considered that a 10% deduction for pre-existing condition and prior injury was at odds with the available evidence including the fall on 1 February 1988 while employed by SRA (page 69 Reply);
(m)     letter from Gair Legal to Brydens dated 30 August 2021 which referred to the opinion of Dr Peter Bentivoglio, who attributed Mr Caddy’s impairment to the frank injury he sustained in the employ of State Rail Authority on 1 February 1988 (page 81-82 Reply);
(n)    NSW Police Medical Discharge Review Panel Consideration dated 18 August 2009 noted that Mr Caddy had been employed by Police Force since 1990 (page 106 Reply), and
(o)    QBE NSW Workers Compensation Payment Summary for Mr Caddy in respect of the injury on 1 February 1988 when employed by State Rail Authority page 84 Reply).
The Appeal Panel accepted that the MA made an error concerning Mr Caddy’s period of employment by the appellant and failed to consider whether any impairment arose out of the injury on 1 February 1988, when Mr Caddy was employed by SRA, and whether a deduction should be made for a previous injury.
The Appeal Panel was satisfied that the MA failed to appropriately apply s 65(1) of the 1987 Act to the personal injury on 1 February 1988 and similarly, any impairment which arose out of that incident, so as to exclude it from the present assessment of permanent loss and impairment in respect to the subject injuries arising out of or in the course of the employment with the appellant. Further, the Appeal Panel was satisfied that the MA failed to appropriately apply s 323 of the 1998 Act to deduct any proportion of loss and impairment due to the previous injury on 1 February 1988.
The MA has the power to make a deduction in relation to pre-existing injury, abnormality or condition and the Appeal Panel considered that part of that process involved making a finding as to the period of employment with the appellant so as to exclude any pre-existing injury that occurred in earlier employment with another employer.

The Appeal Panel noted that Mr Caddy submitted that the MA had effectively been asked by the terms of the referral to include the effects of the incident on 1 February 1988 on the basis that the MA was asked to assess the degree of impairment that resulted from an injury that was simply deemed to have occurred on 31 January 2001. Mr Caddy asserted that the history of the subject injury involved matters which dated back many years including the particulars of injury at page 8 of the ARD which specifically referred to an incident on
1 February 1988 when he fell from a height of about 1 m while leaving a demountable building. He argued that it was therefore part of the MA’s statutory function to include this injury rather than exclude it. The Appeal Panel noted that in fact the ARD after “Injury Description” read as follows: “The applicant injured his back as a result of the nature and conditions of his employment including an incident when on 1/02/1998 he fell from a height of about 1 metre while leaving a demountable building and the deemed date of injury is 31/01/2001”. There was no reference to an incident on February 1988 in the ARD nor in the referral to the AMS.
The Appeal Panel accepted that the degree of any deduction to be made in respect of a previous injury or pre-existing condition was in dispute as identified in the s 78 Notice dated 30 August 2021.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
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.
31 …That is a matter of fact to be assessed on the evidence led in each case.”
The Appeal Panel accepted that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. Section 65 of the 1987 Act requires that the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical Assessment) of Chapter 7 of the 1998 Act.
The Appeal Panel noted that Dr Scougall in his report dated 9 July 2008 expressed the view that the back condition was causally related to the injury on 1 February 1988. He considered that the back condition had been aggravated by employment with the appellant since about 1989 related to the nature and conditions of his work and to various incidents. Dr Scougall assessed 30% permanent impairment of the back and deducted one-tenth for pre-existing condition. He considered that 4/5ths was related to events before 31 December 2001.
Dr Scougall then assessed 31% WPI for the lumbar spine and made a deduction of 4/5ths for pre-existing conditions, that was, events prior to 1 December 2001. This resulted in an assessment of 6% WPI of the lumbar spine.
Dr Tong, in her report of 12 April 2021, assessed back injury suffered as a result of nature and conditions of employment from 1 January 2002 to July 2007 as being 29% WPI and made a deduction one tenth for degenerative spinal disease which resulted in a total of 26% WPI for the lumbar spine. However, she appeared to have incorrectly included the injury in 1988 as being an injury that occurred in the course of employment with the appellant (see assessment in the Table at the end of her report). Dr Tong considered that it was difficult or costly to determine the extent of the previous symptoms contribution to the current impairment.
Dr Bodel, in a report dated 10 November 2008, noted the injury in February 1988 occurred when Mr Caddy was still employed by SRA. Dr Bodel wrote:
“ln regards to this gentleman's back complaint, his pathology initially commenced with a disc rupture when he was employed with the State Rail Authority as a Transit Police Officer. He has had recurring episodes of injury at work which has led to further disc pathology and further surgery on the back. Most of these episodes have arisen as a result of his work with the NSW Police Service and his current condition in the back therefore is due to a mixture of pathology that arose originally with the State Rail Authority and subsequently with the Police Service. The condition in the back is not a disease process of gradual onset as it was instigated by a disc rupture.
….
This gentleman was not in good health at the time that he became a member of the NSW Police Service as he had already had a decompressive laminectomy as a result of a work injury with the State Rail Authority. He did recover quite well, however, and was taken into the Police Force. He has had further recurrences of his back complaint requiring three further surgical procedures on the back and subsequent injuries to the right and left knee requiring multiple surgical procedures there which have arisen as a result of the nature of his work in general. His health in regards to the knees was quite good however prior to his employment with the Police Service.”
Dr Bodel assessed 40% permanent impairment of the back as a result of a series of episodes of injury at work. He assessed the total level of permanent impairment of function in the back up until 1 January 2002 as approximately 30% permanent impairment of function in the back in total. Dr Bodel then assessed 22% WPI in respect of the lumbar spine and estimated that about one-quarter of the 22% WPI was due to matters that had arisen since
1 January 2002 giving 5.5% WPI which was rounded up to 6% WPI.
Dr Peter Bentivoglio, in a report dated 15 July 2021, wrote:
“The original injury, which resulted in surgery in 1988 by Dr Rushworth, was probably to the L4/5 level. That was the original injury, so he had three operations at the L4/5 level and one operation at the L3/4 level. The last operation at the L4/5 level was the re-decompression and fusion which was associated with police training. So one would have to say that the original injury in February 1988 was the original significant disc injury at the L4/5 level which was constantly re-exacerbated by work injuries with the State Rail Authority requiring further surgery both at the L3/4 and L4/5 levels. The last injury was in March 2002 when he went on and had an L4/5 decompression and fusion after he injured his back doing weapons training. So I do believe that the injuries are all associated with the original disc injury at the L4/5 level, surgery done in February 1988 by Dr Rushworth.”
In respect of the claim for “nature and conditions” between 1 January 2002 and July 2007,
Dr Bentivoglio assessed 28% and then deducted one tenth for the pre-existing degenerative disease.
After considering the evidence in this matter, the Appeal Panel, decided that Mr Caddy needed to be re-examined by a medical member of the Appeal Panel.
The Appeal Panel concluded that it was necessary for Mr Caddy to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Dr David Crocker re-examined Mr Caddy on 18 July 2022. Dr Crocker provided the following report:
“1. The worker’s medical history, where it differs from previous records
At the consultation, I gave Mr Caddy the opportunity of reading the medical history as outlined in the Medical Assessment Certificate prepared by Dr Jonathan Negus, Consultant Surgeon/Medical Assessor, dated 11.3.22. Mr Caddy indicated that he was in agreement with that which was documented. He did not raise any particular issues.
With respect to the occupational medical history, the Medical Assessor had documented that Mr Caddy was employed with the State Rail Authority as a Transit Officer from 1978 but from February 1988 the employer was the NSW Police Force with him working in the role of general duties Police Officer. In this respect, a similar position was portrayed in Mr Caddy’s personal statement contained in the referral documentation. Various other documentation and references places this in question such that Mr Caddy commenced employment with the NSW Police Force from 1.7.90.
In discussion with Mr Caddy in relation to the above, he alluded to various changes in relation to employment arrangements and that pertaining to the NSW Government and funding with respect to the type of services that he was undertaking.
2. Additional history since the original Medical Assessment Certificate was performed
At the consultation, I also took the opportunity of seeking further information with respect to Mr Caddy’s current medical status.
With respect to the region of the lumbar spine, he confirmed that he is experiencing back “stiffness” and limitation with truncal range of motion. Intermittent pain arises to the region of the low back approximately on 1-2 occasions per week to a moderate level. Pain does not reportedly extend to the buttocks or lower limbs from the back.
With respect to both knees, he confirmed that pain continues to be evident generally on a mild and occasional basis fairly equally. Pain is apparent more frequently affecting the left knee.
He reports an intermittent “clicking” with movement at both knees. He did not report apparent mechanical instability.
With respect to activities of daily living, he stated that he lives in a freestanding dwelling with a small back garden and lawn. There is lawn on the nature strip in the front of the property. He reports that he occasionally mows the lawn but will often seek assistance from a friend/another person who he pays for this service.
I note that he is presently living alone. He is divorced with three children living elsewhere. As a consequence, he is having to attend to household chores. He reports difficulty with tasks such as vacuuming and cleaning the bathroom. He indicates that difficulties in these respects are as a consequence of back and knee related limitations/ complaints.
He is independent in relation to aspects of personal care. He commented, however, that he needs to sit down to put on his socks.
3. Findings on clinical examination
Mr Caddy was a cooperative man in nil apparent physical distress while at rest. Masks were mutually worn throughout the consultation.
He was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for him.
His temperature was 36.1°C.
The weight was 105kg, lightly clothed, with a height of 169cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 53-71kg.
General inspection of the trunk demonstrated mild reduction with respect to the lumbar curve. A midline longitudinal surgical scar of approximately 22cm was noted to overlie the lumbar spine. This was pale and flat in contour.
Active truncal range of motion was approximately as follows: Left axial rotation one-third that of normal; right axial rotation one-half that of normal; left coronal rotation one-third that of normal; right coronal rotation one-third that of normal; posterior sagittal rotation one-third that of normal; anterior sagittal rotation (forward flexion) such that Mr Caddy could reach to knee level with his fingertips while standing.
Mr Caddy reported a feeling of “tightness” to the region of the lumbar spine with testing.
Tenderness was reported with palpation overlying the upper to mid posterior lumbar spinous processes. Nil muscular spasm or guarding was evident with palpation overlying the paralumbar musculature.
Mr Caddy exhibited a slow symmetric gait when observed walking within the confines of my office. He was observed undertaking a partial squatting manoeuvre.
Girth measurements within the lower limbs were approximately as follows: 51cm (right thigh); 52cm (left thigh); 39.5cm (right calf); 39.5cm (left calf).
General inspection of both knees revealed the presence of healed longitudinal surgical scars anteriorly, each of approximately 19cm in length. The scars were pale and flat in contour.
Active range of motion was assessed at both knees with use of a goniometer on multiple occasions with maximal findings noted as follows:

Knee Movements	Right	Left
Flexion	110°	115°
Extension	-5°	-5°

There was an approximate 2 degrees of valgus alignment bilaterally.
There was minimal AP instability more so to the left side. There was nil apparent medial/ lateral instability.
Mild bony thickening was evident at both knees. There was nil apparent soft tissue swelling.
There were nil areas of localised tenderness upon palpation of both knees.
Motor and sensory systems examination within the lower limbs was found to equate to that outlined in the Medical Assessment Certificate.
The Babinski responses were normal with both toes downgoing.
4.                  Results of any additional investigations
Mr Caddy did not indicate that he has undergone any further radiological investigations since the time of the earlier assessment. Also see below with respect to the radiological films that were made available at the time of the assessment:
·    MRI examination (26.8.04) of the right knee (radiological films only)
·    X-ray examination (2.6.04) of the right knee (radiological films only)
·    MRI examination (18.5.07) of the right knee (radiological films only)
·    X-ray examination (18.6.07) of the right knee (radiological films only)
·    X-ray examination (5.7.07) of the right knee (radiological films only)
·    X-ray examination (27.9.07) of the left knee (radiological films only)
·    X-ray examination (5.11.07) of the right knee (radiological films only)
·    X-ray examination (5.12.07) of the left knee (radiological films only)
·    X-ray examination (9.12.08) of the left knee (radiological films only)
·    X-ray examination (1.10.02) of the lumbosacral spine (radiological films only)
·    X-ray examination (5.6.02) of the lumbosacral spine (radiological films only)
·    CT scan examination (25.3.02) of the lumbosacral spine (radiological films only)
·    Injection procedure (28.3.02) pertaining to the lumbar spine (radiological films only)
·    X-ray examination (1.4.02) of the lumbar spine (radiological films only)
·    X-ray examination (8.4.02) of the lumbar spine (radiological films only)
·    MRI examination (27.2.09) of the cervical and lumbar spine (radiological films and report)
·    X-ray examination (10.6.08) of the left knee (radiological films only)
·    CT scan examination (18.8.01) of the lumbar spine (radiological films only)
Copies of multiple radiological reports have also been noted and reviewed contained in the referral documentation.
5.                  Determination of permanent impairment
In relation to the current dispute, it is apparent that the degree of deductions is the subject of the appeal and how this may relate to the history of periods of employment.
With respect to the date of injury of 30.1.01, based upon the current assessment, I am in agreement with the determinations outlined by the Medical Assessor, ie 50% impairment of the back; loss of use of the right leg at or above the knee as compared with the most extreme case of 30%; loss of use of the left leg at or above the knee as compared with the most extreme case of 30%.
Taking into account a date of commencement of employment with the NSW Police Force of July 1990 and the incident associated with a fall on 1.2.88 and subsequent multiple surgeries, it is considered that a one-half deduction should be made in each case. As such, the following apply: 25%, 15% and 15% respectively.
These impairments are documented in the table (1) that follows.
With respect the date of injury of 30.4.04 relating to the right lower extremity, similar findings were found pertaining to the knee with respect to level of pain and clinical features. As such, a “fair result” has again been determined which equates with a 20% whole person impairment (see attached worksheets).
In relation to a deduction, it is considered that the one-tenth deduction that had been made pertaining to this impairment as was the case by the Medical Assessor is appropriate such that an 18% WPI is applicable with respect to this date of injury. This deduction reflects the degenerative changes that had been noted on the various investigations which reflects a degree of degenerative changes/osteoarthritis that would have predated the specified date of injury of 30.4.04.
With respect the date of injury of 30.7.07 relating to the region of the left lower extremity pertaining to the knee, similar comments apply as documented above in relation to the current clinical findings as compared to those of the Medical Assessor. Again, a “fair result” is considered appropriate which accrues a 20% whole person impairment.
It is also considered that a one-tenth deduction is applicable in relation to this finding for similar reasons as documented above in relation to the right knee and date of injury of 30.4.04. As such, an 18% WPI has been deduced.
With respect to the region of the lumbar spine pertaining to this date, similar clinical findings were noted at the current assessment. It is considered that the calculation that had been determined by the Medical Assessor was appropriate at 28% WPI.
With respect to an appropriate deduction pertaining to this region, it has been indicated that there had been a significant injury of 1988 and subsequent multiple surgeries. Mr Caddy, however, reports various incidents arising in the course of his employment having commenced with the NSW Police Force. Taking this into account, it is considered that a one-half deduction is appropriate. As such, a 14% WPI has been deduced with respect to this region.
When the whole person impairments (date of injury of 30.7.07) of 18% and 14% are combined, a final combined WPI of 29% is deduced.”

The Appeal Panel has adopted the report and findings of Dr Crocker.
In respect of the injury deemed to have occurred on 31 January 2001 the Appeal Panel assess 50% impairment of the back; 30% loss of use of the right leg at or above the knee as compared with the most extreme case of 30% and 30% loss of use of the left leg at or above the knee as compared with the most extreme case. The Appeal Panel accepted that
Mr Caddy commenced his employment with the appellant in July 1990 and therefore the injury caused by the fall on 1 February1988 and which led to subsequent multiple surgeries was a previous injury. A deduction must be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality, that is for the impairment due to the injury on 1 February 1988. The Appeal Panel considered that Mr Caddy sustained a significant injury to his back in the fall on 1 February 1998. This injury resulted in the need for surgery on 2 February 1988 when Mr Caddy underwent an L4/5 laminectomy and decompression. The Appeal Panel was satisfied that the injury on
1 February 1988 contributed to the impairment being assessed and considered that a one-half deduction should be made for the back, right leg and left leg.

In respect of the injury on 30 April 2004 relating to the right lower extremity, the Appeal Panel assessed a “fair result” which equated with a 20% whole person impairment (see attached worksheets). In relation to a deduction, the Appeal Panel considered that the one-tenth deduction which had been made pertaining to this impairment by the Medical Assessor was appropriate such that an 18% WPI is applicable with respect to this injury on 30 April 2004. This deduction reflects the degenerative changes that had been noted on the various investigations which reflects a degree of degenerative changes/osteoarthritis that would have predated the specified date of injury of 30 April 2004.
In respect of the injury on 30 July 2007 relating to the left lower extremity (knee), the Appeal Panel considered that a “fair result” was appropriate which accrued 20% WPI. The Appeal Panel also considered that a one-tenth deduction was applicable in relation to left lower extremity as degenerative changes had been noted on the various investigations which reflects a degree of degenerative changes/osteoarthritis that would have predated the date of injury. Therefore, an assessment of 18% WPI was made.
In respect of the injury on 30 July 2007 to the lumbar spine, the Appeal Panel noted the clinical findings made by Dr Crocker. The Appeal Panel considered that the assessment made by the MA was appropriate at 28% WPI. In relation to the question of an appropriate deduction for previous injury and pre-existing condition, the Appeal Panel considered that there had been a significant injury on 1 February 1988 and subsequent multiple surgeries. The Appeal Panel was satisfied that the injury on 1 February 1988 contributed to the impairment being assessed in respect of the injury of 30 July 2007. The Appeal Panel noted that Mr Caddy reported various incidents arising in the course of his employment since he commenced with the NSW Police Force. Taking this into account, the Appeal Panel considered that a one-half deduction was appropriate and therefore a 14% WPI of the lumbar spine.
The Appeal Panel found that when the WPIs (date of injury of 30 July 2007) of 18% and 14% are combined, the final combined WPI is 29%.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received before 1 January 2002

Applicant:	Peter Caddy
Respondent:	State of New South Wales (NSW Police Force)

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 Dr Jonathan Negus and issues this new Medical Assessment Certificate as to the matters set out in the Table below.

Table 1 - Assessment in accordance with the Table of Disabilities for injuries received before 1 January 2002

Body Part	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent % loss of efficient use or impairment attributable to this injury
Back	30.1.01	50%	1/2	25%
Right leg at or above the knee	30.1.01	30%	1/2	15%
Left leg at or above the knee	30.1.01	30%	1/2	15%

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Applicant:	Peter Caddy
Respondent:	State of New South Wales (NSW Police Force)

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 Dr Jonathan Negus and issues this new Medical Assessment Certificate as to the matters set out in the Table below.

Table - Whole Person Impairment (WPI)

Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002

*Body Part or system*	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
Right Lower Extremity	30.4.04	Chapter 3, pp 13-23	Chapter 17, 17.2j, Table 17-33, pp 545-549	20%	1/10th	18%
Lumbar Spine	30.7.07	Chapter 4, Table 4.2, pp 24-30	Chapter 15, 15.4, Table 15-3, pp 384-388, DRE IV	28%	1/2	14%
Left Lower Extremity	30.7.07	Chapter 3, pp 13-23	Chapter 17, 17.2j, Table 17-33, pp 545-549	20%	1/10th	18%
Total % WPI (the Combined Table values of all sub-totals)					(DOI 30.4.4) 18% (DOI 30.7.07) 29%

[2022] NSWPICMP 309

28 July 2022