Sutton v Lambing Flat Enterprises Pty Ltd

Case

[2024] NSWPICMP 313

22 May 2024


DETERMINATION OF APPEAL PANEL
CITATION: Sutton v Lambing Flat Enterprises Pty Ltd [2024] NSWPICMP 313
APPELLANT: Lesa Joan Sutton
RESPONDENT: Lambing Flat Enterprises Pty Limited
APPEAL PANEL
MEMBER: John Wynyard
MEDICAL ASSESSOR: Michael Davies
MEDICAL ASSESSOR: Robin Fitzsimons
DATE OF DECISION: 22 May 2024
CATCHWORDS: 

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from one tenth section 323 deduction, and failure to apply Chapter 1.32 of the Guides; whether Medical Assessor (MA) applied section 323 correctly; whether effects of treatment warranted application of a modifier; Held – appellant had serious prior brain condition treated by surgery 8 months before subject motor vehicle injury; MA found it was not causal, but that the motor vehicle injury had caused musculoligamentous strain of the neck; his reasons for the one tenth deduction were not clear, and reference to post-operative scarring not adequately explained; Cole v Wenaline Pty Ltd considered and applied; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak applied; Medical Assessment Certificate revoked; section 323 not applied; no evidence that treatment effects qualified under Chapter 1.32 as substantial or total elimination of impairment.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 18 December 2023 Lesa Joan Sutton, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
    20 November 2023.

  2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

    ·        the assessment was made on the basis of incorrect criteria, and

    ·        the MAC contains a demonstrable error.

  3. 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.

  4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

  5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
    1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

  1. On 30 October 2023 an amended referral was made for an assessment of WPI caused by injury to the cervical spine on 20 August 2018.

  2. The appellant was employed as a Mental Health Case Worker when on 20 August 2018 she was involved in a motor accident whilst driving in the course of her employment.

  3. She was referred by her general practitioner to the Tumut Hospital where she remained for about 36 hours before discharge. After about two weeks she returned to her pre-injury duties working four eight-hour days per week.  Her hours were reduced as she was suffering symptoms of pain and occipital headache.  She was made redundant in June 2019.

  4. During 2016 Ms Sutton experienced some syncopal episodes which caused her disordered consciousness associated with a sweaty feeling and on occasion, palpitations.   On some occasions she would fall to the floor, but on others she was able to lower herself to the floor and her symptoms would improve after about five minutes.

  5. Investigations were carried out and she was diagnosed as having an Arnold- Chiari Malformation.  That condition was treated on 7 February 2018 by surgery in the form of a posterior fossa decompression.

  6. The Medical Assessor noted that syncopal episodes recommenced about six weeks after the subject accident.   She has had about six episodes since, the last being about three months prior to the assessment.  These were similar to those that occurred prior to her surgery, although less severe and not associated with a loss of consciousness if she could lower herself to the floor quickly enough.

  7. She experienced cervical pain especially on the left side prior to the accident and associated episodic numbness of both hands and lower half of the forearms.  Those symptoms disappeared entirely following the surgery, but again reoccurred a few days following the motor vehicle accident.

  8. The Medical Assessor assessed a total of 11% WPI for which he deducted 1/10th in relation to the cervical spine to give a total of 10%.

PRELIMINARY REVIEW

  1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

  2. The appellant did not seek to be re-examined by a Medical Assessor who is a member of the Appeal Panel.   There was no requirement for such a re-examination as the issues pertained to evidence that was already before the Medical Assessor.

EVIDENCE

Documentary evidence

  1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 

Medical Assessment Certificate

  1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

  1. Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

  1. 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.

  2. 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.

  3. Ms Sutton appealed on two primary bases. She first of all submitted that the Medical Assessor had erred in making the 1/10th deduction pursuant to s 323 of the 1998 Act.

  4. The second ground was that he had neglected to consider the provisions of chapter 1.32 of the Guides which enabled an assessment to be modified under the circumstances therein set out.

The MAC

  1. Under the heading ‘present symptoms’, the Medical Assessor noted:[1]

    “The main existing symptoms are neck pain associated with stiffness of the neck and headache which extends up to the vertex, the cervical pain extends across the tops of both shoulders towards the convexities and down between the shoulder blades to the bra strap. Ms Sutton also experiences occipital headache with altered sensation in the scalp.

    Anxiety is also present associated with the symptoms of pain, for which she is having treatment.

    ….”

    [1] Appeal papers page 22.

  2. The Medical Assessor noted:[2]

    “Other history of relevance were syncopal episodes occurring in 2016 when Ms Sutton experienced disordered consciousness associated with a sweaty feeling and palpitations on occasions. On some occasions she would fall to the floor but on other occasions she was able to lower herself to the floor, the symptoms would improve after about five minutes. ….. Investigations were done and CT of the cervical spine were performed. A diagnosis of an Arnold Chiari malformation was made in 2016. Surgery was performed on the Chiari malformation in 2018, six months prior to the motor vehicle accident, when a posterior fossa decompression was performed.

    Syncopal episodes recommenced approximately six weeks after the accident. Since then, she has had about six episodes, the last being three months ago. The episodes are similar to those that occurred prior to the operation, although she said they are less severe and if she can lower herself to the floor quickly enough, she does not lose consciousness.

    Cervical pain especially on the left side occurred prior to the accident and was associated with episodic numbness of both hands and the lower half of the forearms. However, there was no impairment of hand function at that time. She said those symptoms had disappeared entirely following the Chiari surgery but recurred a few days following the motor vehicle accident.”

    [2] Appeal papers page 22.

  3. In his summary at [7], the Medical Assessor subsequently noted:[3]

    “The history given to me and the documentary information indicates that Ms Sutton’s clinical history begins with the diagnosis of an Arnold-Chiari malformation when she was being investigated for cervical symptoms in the distant past. The posterior fossa decompression which was performed by Professor Stoodley should be regarded to have been done because of the syncopal episodes and the cervical symptoms referred to briefly above. Those symptoms may possibly have been arising because of brain stem pressure associated with the Arnold-Chiari malformation. The decompression surgery was performed because of that possibility which if present would have carried with it threatening neurological prognostic implications.

    The decompression surgery performed by Professor Stoodley has removed the risk of brain stem pressure arising because of the Arnold-Chiari malformation.

    The recurrence of the episodes described above as referred to as syncopal should be regarded to have no etiological connection with the Arnold-Chiari malformation now corrected nor are those symptoms etiological connected to the motor vehicle accident which occurred on 20 August 2018.

    …..

    It is clear from the information presented in this MAC that [there were] no significant …symptoms suggesting occipital neuralgia then.”

    [3] Appeal papers page 24.

  4. The Medical Assessor said relevantly:

    “Documents …[and] the history I obtained from the patient … identify cervical symptoms associated with pain and impairment of movement to have occurred in close proximity to the motor vehicle accident. Those symptoms should be regarded to have been caused primarily by the motor vehicle accident.”

  5. His conclusion was:

    “… I would accept that the symptoms of neck pain…are of muscular and ligamentous origin resulting in impairment of function producing an assessable impairment involving activities of daily living.”

  6. The Medical Assessor concluded that:[4]

    “A one-tenth deduction does, however, apply because the decompressive surgery in proximity to and involving the cervical and paracervical musculature is also in proximity to the greater occipital nerve. Post operative scaring therefore needs to be taken into account as contributing to the symptoms which occurred following the motor vehicle accident.”

    [4] Appeal papers page 25.

  7. Paragraph [11] of the MAC is a templated paragraph concerned with any deduction to be made for previous injury or pre-existing condition or abnormality. The pre-existing condition identified by the Medical Assessor was:[5]

    “(i) Posterior fossa decompression surgery.”

    [5] Appeal papers page 27.

  8. The templated question at [11b] states:

    “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”

  9. The Medical Assessor has answered:

    “(ii) Please see comments above relevant to the 1/10 deduction.”

  10. The templated question at [11c] states:

    “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 1/10. (can (sic) only be used when not at odds with available evidence).”

  11. The Medical Assessor answered:

    “1/10 deduction.”

  12. The Medical Assessor referred to Ms Sutton’s present treatment as follows:[6]

    “Physiotherapy, acupuncture and massage. She takes analgesic medication and treatment for hypertension and hypercholesterolaemia. She has had one psychiatric consultation and takes Valium when necessary.”

SUBMISSIONS

[6] Appeal papers page 22.

Ms Sutton

Section 323

  1. We were referred to the provisions of this section.  It was firstly submitted that a deduction could not be made without evidence to identify the pre-existing injury and establish when it occurred.  We were referred to a Medical Appeal Panel case of Liu v Buckley Group Pty Ltd (in liq) t/as Buckley Group Pty Ltd (Deregistered)[7] in that regard.

    [7] [2021] NSWWCCMA 25.

  2. Ms Sutton referred to her surgery for the Arnold-Chiari Malformation of 7 February 2018. We were referred to the opinions of Dr Peter Bentivoglio, neurosurgeon, of 3 April 2023,[8] and

    [8] Appeal papers page 53.

    [9] Appeal papers page 60.

    Dr Noel Dan, neurosurgeon, of 11 August 2022.[9]
  3. Ms Sutton noted that the Medical Assessor identified the decompressive surgery as being the previous injury, pre-existing condition or abnormality that caused the deduction to be made.

  4. We were referred to various statements made by the Medical Assessor in his MAC and
    Ms Sutton referred to the well-known case of Cole v Wenaline Pty Ltd[10] in submitting that in effect the Medical Assessor had fallen into error in the way he applied the provisions of

    [10] [2010] NSWSC 78.

    s 323. 
  5. Ms Sutton argued that the Medical Assessor was required to consider whether any proportion of the impairment caused by the subject injury was due to a pre-existing condition.

  6. Ms Sutton submitted:

    “A pre-existing condition which rendered the Applicant (sic) more vulnerable to subsequent injury cannot of itself result in the conclusion that it had contributed to an impairment which followed the later injury.  The evidence must establish that such a contribution had actually occurred.”  

  7. The appellant submitted that her posterior fossa decompression surgery itself was not amenable to identification as a previous injury, pre-existing condition or abnormality.  It was submitted that there was a distinction between the condition itself and the surgery that was employed to treat it.  It was essential, it was argued, that any deduction be properly assessed, and the previous injury, pre-existing condition or abnormality be “identified with precision”.

  8. Ms Sutton also submitted that the Medical Assessor’s explanation in [11] of the MAC for the deduction - “please see comments above relevant to the 1/10 deduction” - was inadequate to explain the reasons why he had made that deduction. 

  9. It was submitted that a perusal of the Medical Assessor’s comments relevant to the s 323 deduction was a passing reference to “post operative scarring”. However, Ms Sutton argued that the Medical Assessor did not explain how that was so.

  10. It was submitted that the Medical Assessor failed to expose his reasoning in conformance with accepted authority.  He did not specifically identify the nature of the pre-existing injury, condition or abnormality. He failed to explain how a pre-existing injury, condition or abnormality was a contributing factor to the impairment caused by the subject injury, and he did not explain the basis on which he found that the extent of the deduction was difficult or costly to determine.

  11. It was submitted that even if there were such a pre-existing condition that rendered
    Ms Sutton more vulnerable to subsequent injury, that would not of itself result in the conclusion that it had contributed to the impairment caused by the later injury.

  12. It was submitted that the evidence had to establish that such a contribution had actually occurred and this the Medical Assessor had not made clear.

Effects of treatment

  1. We were referred to Chapter 1.32 of the Guides as a basis for the submission that the Medical Assessor had not made a modification to his assessment increasing it by 1, 2 or 3%, as therein provided for the effects of treatment.

  2. It was submitted that the Medical Assessor did not extrapolate the effects of the treatment that Ms Sutton was having for her anxiety.  We were referred to other evidence that was before the Medical Assessor that Ms Sutton was under fairly intensive treatment by way of medication.

  3. It was submitted that the Medical Assessor failed to consider this aspect of the Guides.

Respondent’s submissions

  1. The respondent submitted that the corrective surgery for the pre-existing Arnold Chiari condition had occurred in close proximity to the subject injury.  It argued that the post operative scarring should be considered in the context that the surgery was undertaken in the proximity and involving the cervical and para-cervical musculature.

  2. We were referred to chapter 1.28 of the Guides and a number of well-known authorities as to the proper application of the provisions of s 323.[11]  We were also referred to Minister for Immigration and Ethic Affairs v Wu Shan Liang[12]. In light of that authority it was submitted that the reasons provided by the Medical Assessor were sufficient when the context was that the motor vehicle injury was essentially a musculoligamentous strain on a background of the relatively recent and invasive surgery in the region of the cervical spine.

    [11] Vitaz v Westform NSW Pty Ltd [2011] NSWCA 254, ElCheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSW SC 365 and Ryder v Sundance Bakehouse [2015] NSWSC 526.

    [12] (1996) 185 CLR 259 (Wu Shan Liang).

DISCUSSION

  1. Section 323 of the 1998 Act provides relevantly:

    “(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.

    …..”

  2. The principles to be applied in the application of the section are well settled, and indeed the leading case was referred to by both parties. It is well accepted that there are three steps to be considered in the application of this section.  In Cole v Wenaline Pty Ltd[13] Schmidt J held:

    “What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical

    judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”

    [13] [2010] NSWSC 78 at [38].

  3. In the present case the level of impairment after the subject injury to the cervical spine (“second injury” as referred to by her Honour) was 8% WPI. This assessment has not been challenged.

  4. The second step is to enquire whether a proportion of that impairment was due to, in this case, Mr Gandhi’s pre-existing condition. The Medical Assessor identified three separate classes of symptoms about which Ms Sutton complained.  The first were those the Medical Assessor described as “syncopal episodes” which were similar to those Ms Sutton had been experiencing prior to the surgery on 2 February 2018.   They recommenced about six weeks following the subject accident and whilst they were similar, they were less severe. Ms Sutton had experienced approximately six such episodes, at the time of the assessment, the last being three months before.

  1. The second symptom complex, which the Medical Assessor described as “the main existing symptoms”, was of neck pain and stiffness, with headache.  The third was the occipital neuralgia.

  2. The Medical Assessor concluded that there was no aetiological connection between the current syncopal symptoms and either the Arnold-Chiari Malformation, which the Medical Assessor found had been corrected by the surgery or the subject motor vehicle accident.

  3. The second set of symptoms had however been caused primarily by the motor vehicle accident, the Medical Assessor said.  He noted that the neck symptoms were “of muscular and ligamentous origin” and that they produced “an assessable impairment involving activities of daily living”. Pursuant to Chapter 4.33 - 35, the Guides permit a maximum of 3% modification for restrictions in the activities of daily living, and the Medical Assessor allowed the maximum.

  4. However, the Medical Assessor did not adequately address whether there was any pre-existing condition that contributed to the impairment caused by the symptoms so described.  He referred at [11] to his “comments above relevant to the 1/10 deduction”, but those comments we found difficult to follow, with respect.

  5. The comments at [7] referred to “post operative scarring” that needed to be “taken into account”.  The deduction applied, the Medical Assessor said, on account of the decompressive surgery. He referred to its proximity to and involvement with the cervical and paracervical musculature, and its proximity to the greater occipital nerve.  Just pausing there, the decompressive surgery was said to have corrected the symptoms caused by the Arnold-Chiara Malformation, which was expressly found not to have been a cause of the post subject accident “syncopal symptoms,” which had only occurred six times in the past five years. The nature of the symptoms that the Medical Assessor had found to be caused by the subject injury was musculoligamentous.  Musculoligamentous pathology might include but is not necessarily restricted to scarring. 

  6. Professor Marcus Stoodley performed the Arnold-Chiari surgery, which was by way of a C1 laminectomy.[14]  Surgery at this level of the cervical spine rarely leaves significant scar tissue, or (importantly in the present context) other musculoskeletal disruption if the incision is midline and does not extend laterally, which was the case in Mr Sutton’s surgery. Professor Stoodley noted on 16 March 2018 that the wound had healed well.

    [14] Appeal papers page 986.

  7. An MRI scan of the cranialcervical junction dated 22 May 2018 was seen by Professor Stoodley on the same day, who described the scan as “excellent with a very satisfactory cisterna magna”.[15]  He discharged Ms Sutton from his care that day, but saw her again following the recurrence of her syncopal symptoms.

    [15] Appeal papers page 472: MRI scan at page 480.

  8. On 31 July 2020 Professor Stoodley saw Ms Sutton with regard to her symptoms of recurrent occipital headache, disequilibrium and bilateral upper limb parasthesia.[16] He said:

    “….It is conceivable that there has been a traction injury to the upper cord related to possible tethering of the cord against the patch graft..”

    [16] Appeal papers page 1195.

  9. Professor Stoodley accordingly arranged a further MRI scan “.. to see if there is tethering.”  He reported again on 18 September 2020, saying:[17]

    “… Today’s scan does not show any evidence of tethering of the brain stem to the patch graft. This is reassuring. I therefore think it likely her current symptoms are not related to the Chiari malformation…”

    [17] Appeal papers page 966.

  10. In the light of these investigations, it was clear that Professor Stoodley was alive to the unlikely possibility that post-operative tethering was present, and was satisfied that there was none. 

  11. The Medical Assessor’s meaning was not clear, as he did not otherwise refer to post-operative scarring in his reasons. 

  12. The Medical Assessor did not explain how it was that there was scar tissue that might be relevant in view of Professor Stoodley’s investigations, neither did he explain the relationship between the symptoms complained of and the post-operative scarring.

  13. We note the reference by the respondent to Wu Shan Liang in which Kirby J said:

    “Reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellable tooth comb, against the prospect of a verbal slip will be found warranting the inference of an error of law.”

  14. This case was also referred to by Handley AJA (Allsop P and Giles JA agreeing) in  Bojko v ICM Property Service Pty Ltd[18], who said at [36]:

    “The correct approach is that mandated by the joint judgment in … Wu Shan Liang … 272 which approved the following statement of principle in a decision of the full Federal Court:

    ‘... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.”

    [18] [2009] NSWCA 175.

  15. The respondent’s recourse to this decision is perhaps an indication that it too had some difficulty in deciphering the Medical Assessor’s reasoning. However, this is not a case where there has been some unhappy phrasing or a verbal slip.

  16. As we noted at the outset of these reasons, Vegan is authority for the proposition that, whilst the extent of the reasons given need not be extensive or detailed, bearing in mind that a Medical Assessor is a medical professional reaching a professional judgement, nonetheless it is necessary to explain a conclusion that is reached where more than one conclusion is open on the evidence.  In Western Sydney Local Health District v Chan[19] Adams J found that a Medical Assessor (“AMS” as they were then called) was bound, following the High Court authority of Wingfoot Australia Pty Ltd v Kocak, to set out in a statement of reasons the actual path of reasoning by which he arrived at his opinion.

    [19][2015] NSWSC 1968 at [13].

  17. The Medical Assessor has failed to give adequate reasons for making the deduction.  The respondent, with respect, was incorrect when it submitted that the relevant pre-existing condition or abnormality was the Arnold-Chiari Malformation. The Medical Assessor went to some lengths to exclude that hypothesis. For the above reasons we also do not accept that any proximity of the decompressive surgery to the relevant musculature, and its proximity to the greater occipital nerve was relevant. We had some difficulty in relating that observation to the post-operative scarring which the Medical Assessor said needed to be taken into account - a finding with which we also disagree.

  18. We agree with the finding that Ms Sutton has suffered a cervical musculoligamentous strain in the subject injury, but we are unable to ascribe to the impairment caused thereby any contribution from Ms Sutton’s prior Arnold-Chiari Malformation condition, or the surgery that treated it in view of the analysis as to causation by the Medical Assessor, which we accept.

  19. The MAC will accordingly be revoked in favour of a nil deduction pursuant to s 323 of the 1998 Act.

Effects of treatment 

  1. Chapter 1.32 of the Guides states:

    “1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”

  2. There was no evidence that Ms Sutton’s long-term treatment had resulted in an apparent substantial or total elimination of her permanent impairment, and this ground is rejected.

  3. For these reasons, the Appeal Panel has determined that the MAC issued on
    20 November 2023 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:

W5083/23

Applicant:

Lesa Joan Sutton

Respondent:

Lambing Flat Enterprises Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ross Mellick  and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter,

page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Cervical spine

20.8.2018

Chapter 4    

Chapter 4.33 – 4.35 (ADL)       

Chapter 15 Table 15 -5

5%

3%

nil

8%

Greater occipital nerve

20.8.2018

Chapter 5

Table 5.1

3%

3%

Total % WPI (the Combined Table values of all sub-totals)  

11%


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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Cole v Wenaline Pty Ltd [2010] NSWSC 78