Syed v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	Syed v Secretary, Department of Communities and Justice [2024] NSWPICMP 75
APPELLANT:	Sabahat Hasan Syed
RESPONDENT:	Secretary, Department of Communities & Justice
APPEAL PANEL
MEMBER:	R J Perrignon
MEDICAL ASSESSOR:	John Garvey
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	15 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment under the Table of Disabilities of permanent impairment of the neck and back, and loss of efficient use of the left arm at or above the elbows, as a result of a motor vehicle accident in 2001; whether Medical Assessor (MA) erred in finding that the back and left arm were not injured; whether he erred by failing to take into account deterioration of the condition of the neck since injury in 2001; appeal from assessment of whole person impairment (lower gastro-intestinal tract, cervical spine) as a result of injury due to the nature and conditions of employment; whether MA erred in taking into account the effects of diarrhoea; whether he erred in deducting one half for the effects of pre-existing degeneration of the cervical spine; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Mr Syed, appeals from the Medical Assessment Certificate of Medical Assessor Anderson dated 19 April 2023.
Mr Syed worked for the prison service from 1993 to 2006, when he was medically retired. He ceased work on 13 September 2006.
On 30 October 2001, he was injured in a motor vehicle accident on his way home from Silverwater prison. Over a period of years, he drove a forklift at work over rough ground, twisting around to look behind, and developed increasing pain in the neck and back.
In these proceedings, he claimed compensation:
(a) under the Table of Disabilities for permanent impairment of the neck and back, and loss of efficient use of the left arm at or above the elbow, as a result of the motor vehicle accident on 30 October 2001, and
(b) for whole person impairment with respect to the cervical spine and digestive system as a result of injury on 13 September 2006 (deemed date) due to the nature and conditions of his employment from 25 October 2001 to
28 August 2006.
Medical Assessor Anderson examined the worker on 7 March 2023 and assessed the following:
(a) Under the Table of Disabilities, as a result of a motor vehicle accident on
30 October 2001:
(i)5% permanent impairment of the neck;
(ii)0% loss of efficient use of the left arm at or above the elbow, and
(iii)0% permanent impairment of the back.
(b) 29% whole person impairment (29% cervical spine, 0% lower gastro-intestinal tract) as a result of injury on 13 September 2006 (deemed date). From this, he deducted one half to take account of a pre-existing condition of the cervical spine, yielding 15% whole person impairment (15% cervical spine, 0% lower gastro-intestinal tract).
The appellant says the assessment of permanent impairment resulting from the 2001 motor vehicle accident was in error, because the Medical Assessor:
(a) in effect, found that neither the left arm nor the back were injured, which was beyond his power given the terms of the referral and a Certificate of Determination in 2009, and
(b) failed to include in his assessment of the neck the deterioration of impairment which has occurred since the accident.
The appellant also alleges error in respect of the following assessments of whole person impairment as a result of the nature and conditions of employment:
(a) 0% whole person impairment with respect to the lower gastro-intestinal tract, and
(b) the deduction of one half for a pre-existing condition of the cervical spine.
No error is alleged in respect of the assessment (before deduction) of a 29% whole person impairment (cervical spine) as a result of injury on 13 September 2006 (deemed date) due to the nature and conditions of employment.
The appellant seeks examination by a member of the Panel.

PRELIMINARY REVIEW

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

SUBMISSIONS

The parties made written submissions which have been taken into account. They are not repeated in full, but are summarised briefly below.
The appellant submits as follows:
(a)    With respect to permanent impairment under the Table of Disabilities as a result of the motor vehicle accident on 31 October 2001:
(i)the Medical Assessor found that only the cervical spine was injured on that occasion;
(ii)this necessarily implied a finding that the left arm and back were not injured;
(iii)the finding that the left arm was not injured was beyond his power, given the terms of the referral, and the determinations by the Workers Compensation Commission on 12 May 2009 (constituted by Arbitrator Foggo), which give rise to an issue estoppel. The Medical Assessor failed to exercise his power by assessing the left arm;
(iv)for the same reason, the finding that the back was not injured was also beyond power. The Medical Assessor failed to exercise his power by assessing the back, and
(v)under the Table of Disabilities, the Medical Assessor confined his assessment of the neck to so much of the permanent impairment as was present immediately after the motor vehicle accident in 2001, and excluded from his assessment the subsequent deterioration of that impairment. He failed to provide reasons for doing so, in circumstances where Dr McKee, in his report of 21 December 2020, opined that pre-existing degeneration of the neck and lumbosacral spine had been aggravated by the nature and conditions of employment from 25 October 2001 to 29 August 2006. The Medical Assessor should have included subsequent impairment of the neck as a result of the motor vehicle accident.
(b)    With respect to the assessment of whole person impairment (lower gastro-intestinal tract) as a result of injury on 13 September 2006 (deemed date):
(i)the Medical Assessor failed to assess the lower gastro-intestinal tract in accordance with the terms of the referral, by ‘not assuming causation had been found on the lower gastro-intestinal tract’, and by accepting the views expressed by independent gastroenterologist Dr Sethi that it was ‘highly unlikely’ that Mr Syed’s medications had any significant effect on his lower gastro-intestinal tract;
(ii)he failed to find that the views of Dr Sethi were outweighed by the opposite views of independent gastroenterologist Dr Greenberg and treating gastroenterologist, Dr Chakravaty, and
(iii)the Medical Assessor failed to take into account the opinion of treating gastroenterologist, Dr Chakravaty, to the effect that diarrhoea is caused by medications taken for his injuries and surgeries, namely Naprosyn and Nurofen.
(c)With respect to the deduction of one-half from the assessment of whole person impairment (cervical spine) for pre-existing degeneration:
(i)there is insufficient evidence to prove that the degeneration was present prior to 13 September 2006. The Medical Assessor found at page 4 that there was ‘no history of any relevant pre-existing condition’. He pointed to no radiological evidence of pre-existing degeneration prior to October 2001. The earliest radiological evidence of it was an MRI scan in 2005. That demonstrated annular tear and bulging at C5/6 and disc bulging at C6/7, probably caused by trauma. This, plus retrolisthesis at C4 on C5 with disc bulging, coincides with the nature and conditions of employment from 2001 to 2006, when the appellant was driving a forklift;
(ii)the Medical Assessor assumed that, because there was pre-existing degeneration, it must contribute to current impairment: That assumption was impermissible: Cole v Wenaline Pty Limited [2010] NSWSC 526; Fardell v Clinton Industries Pty Ltd [2022] NSWSC 111;
(iii)the Medical Assessor failed to give reasons for adopting the view of
Dr Robinson, orthopaedic surgeon, that a deduction of one-half was ‘very logical and reasonable’. It was not open to him to prefer the views of one expert to those of another without providing reasons: Elcheikh v Diamond Form Work (NSW) Pty Limited (in liq) [2013] NSWSC 365;
(iv)in order to make a deduction, the Medical Assessor was required to find that, but for the pre-existing degeneration, the permanent impairment would be less: Ryder v Sundance Bakehouse [2015] NSWSC 526. No such finding was made by the Medical Assessor. The pre-existing degeneration could not possibly affect the outcome now, as Dr McEntee performed cervical fusion as a result of the aggravation of symptoms due to the nature and conditions of employment in 2005, and
(v)the Medical Assessor failed to take into account the appellant’s statement evidence that, when he commenced his employment with the respondent, he was medically examined and found to be fully fit for his duties, and ‘had no problems with [m]y neck or [m]y back before I started with this employer’.
(d)    If the Appeal Panel re-assesses the appellant, it should:
(i)assess a 3% whole person impairment (lower gastrointestinal tract) in accordance with the assessment of Dr Greenberg on 3 August 2021, and
(ii)deduct one-tenth only from its assessment of whole person impairment (cervical spine), consistently with the Medical Assessment Certificate of Approved Medical Specialist Dr McKee dated 6 July 2009.
The respondent Department submits as follows:
(a)    With respect to assessment under the Table of Disabilities as a result of the motor vehicle accident on 31 October 2001:
(i)the Medical Assessor did not determine that there was no injury to the back or left arm, but rather found that the injuries were minor and that only the cervical spine was affected;
(ii)that justified and explained an assessment of 0% permanent impairment in relation to the back and left arm;
(iii)he was not bound to accept the assessments of previous clinicians, and his assessment was reasonably open on the evidence, and
(iv)his assessment of the back and left arm also mirrored the assessments of approved medical specialist Dr McKee in his Medical Assessment Certificate of 6 July 2009, and of Dr Robinson in his reports of 20 March,
11 October and 4 November 2021.
(b)    With respect to his assessment of the neck as a result of the 2001 injury:
(i)the Medical Assessor adequately explained why he assessed 0% permanent impairment under the Table of Disabilities;
(ii)he found that the injury was relatively mild, and adopted the assessment of 5% made by approved medical specialist Dr McKee on 6 July 2009;
(iii)he excluded the effects of the extensive deterioration which had occurred ‘in the intervening period of time between then and now, … necessitating a very extensive surgical procedure’, and
(iv)that deterioration was considered by him in his assessment of whole person impairment as a result of the nature and conditions of employment to 2006, which had been pleaded by the worker as a separate injury.
(c)    With respect to the assessment of the lower gastro-intestinal tract as a result of injury on 13 September 2006 (deemed date):
(i)the Medical Assessor found that the worker suffered diarrhoea of recent onset, that he had ingested the anti-inflammatory agent, Naproxen, as a result of injury, and methotrexate as a result of unrelated polyarthritis nodosa since 2014, that diarrhoea is a side effect of both medications, though not a major side effect, and that this evidence was ‘too nebulous’ to determine that any significant lower gastro-intestinal tract deficit was caused by Naproxen;
(ii)this made plain his path of reasoning;
(iii)he explained that he had studied in detail all the documentary evidence provided. That included the report of Dr Chakravarty, and
(iv)an assessment of 0% whole person impairment was reasonably open on the evidence.
(d)    With respect to the deduction of one-half for pre-existing degeneration of the cervical spine:
(i)a deduction of one half was not excessive in the circumstances;
(ii)the Medical Assessor found that there was cervical degeneration prior to the 2001 motor vehicle accident, based on radiological reports;
(iii)he found that the condition of the cervical spine had been contributed to by three factors: the 2001 motor vehicle accident, which he considered ‘relatively minor’; naturally occurring degenerative change over 22 years, and driving a forklift at work;
(iv)he also found that fusion surgery was necessary to treat the condition of the cervical spine;
(v)he concluded, “Therefore, … these additional features would account for half of his impairment evaluation’, and
(vi)the ‘additional features’ included the 2001 motor vehicle accident and naturally occurring degenerative changes over a period of time. Both pre-dated injury on 13 September 2006 (deemed date). It was reasonably open to him to conclude, as he did, that a deduction of one-half was appropriate to take account of these changes.
In accordance with directions made by the Appeal Panel, the parties also provided supplementary written submissions. Those submissions have been taken into account.

PROCEDURAL HISTORY

These proceedings are among a number of proceedings taken in relation to one or other of the injuries for which compensation is now sought. Before considering the parties’ submissions, it is necessary to appreciate the procedural history, which may be summarised as follows.
In Workers Compensation Commission proceedings WCC1231/09, Mr Syed had claimed weekly compensation and permanent impairment compensation as a result of the 2001 motor vehicle accident and the nature and conditions of his employment from
25 October 2001 to 29 August 2006. On 12 May 2009, Arbitrator Foggo found:
(a) that degeneration in the cervical spine had been exacerbated by the nature and conditions of employment – at [34] of his reasons, and
(b) that the neck and back had been injured in the motor vehicle accident – at [36] and [39].
By a certificate of Determination dated 12 May 2009, he awarded weekly compensation and remitted the matter to the Registrar for referral to an approved medical specialist to assess permanent impairment.
By a Medical Assessment Certificate dated 6 July 2009, approved medical specialist
Dr McKee assessed the following as a result of a motor vehicle accident on 4 October 2001 – which, for reasons given below, was the motor vehicle accident the subject of these proceedings:
(a)    5% permanent impairment of the neck, from which he deducted one-tenth for the effects of pre-existing degeneration of the neck to yield 4.5%;
(b)    0% permanent impairment of the back, and
(c)    0% loss of efficient use of the left arm at or above the elbow.
Dr McKee also assessed a 7% whole person impairment (cervical spine) as a result of the nature and conditions of employment. From this, he deducted one-tenth for pre-existing degeneration of the cervical spine to yield 6% whole person impairment.
Awards giving effect to those assessments were made by the Workers Compensation Commission in a Certificate of Determination dated 19 August 2009. That Certificate was amended by a further Certificate of Determination dated 10 September 2009, which had the effect of amending the dates of injury to:
(a) 30 October 2001 in the case of the motor vehicle accident, and
(b) 13 September 2006 (deemed date) due to the nature and conditions of employment from 25 October 2001 to 29 August 2006.
Those are the dates of injury as a result of which permanent impairment compensation has been assessed in these proceedings.
In later proceedings, Approved Medical Specialist Dr Oates issued a Medical Assessment Certificate dated 28 September 2018. He declined to assess the worker, because he was about to undergo fusion surgery at the hands of Dr McEntee. Dr Oates found that maximum medical improvement had not been reached.
On 3 October 2018, Mr Syed came to C4-C7 fusion surgery with good result.
As indicated, in these proceedings Mr Syed claimed compensation for the following:
(a) permanent impairment of the neck and back, and loss of the efficient use of the left arm at or above the below, as a result of the motor vehicle accident in 2001, and
(b) 26% whole person impairment with respect to the cervical spine and digestive system as a result of injury on 13 September 2006 (deemed date) due to the nature and conditions of his employment from 25 October 2001 to
28 August 2006.
On 14 February 2023, the Personal Injury Commission issued a Certificate of Determination by consent, referring the following for assessment:
(a) the neck, back and left arm under the Table of Disabilities, as a result of the motor vehicle accident in 2001, and
(b) whole person impairment of the cervical spine and lower gastrointestinal tract as a result of injury on 13 September 2006 (deemed date).
The Certificate of Determination included an award for the respondent in respect of ‘the alleged upper gastrointestinal tract consequential conditions resulting from the injury on
13 September 2006’, but otherwise included no findings with respect to any allegation of injury.
There was no need for any further findings, because the findings of Arbitrator Foggo as to injury resulting from the motor vehicle accident were sufficient to enable the Commission to refer the neck and back for assessment under the Table of Disabilities. There was no need to find injury to the left arm, as symptoms in the left arm caused by injury to the neck were assessable under the Table of Disabilities.

Assessment under the Table of Disabilities – left arm

It was the task of the Medical Assessor:
(a) to assess the degree of permanent impairment of the neck and back and loss of efficient use of the left arm at or above the elbow, and
(b) to determine whether the whole or any part (and if so, what part) of the assessed impairment resulted from the motor vehicle accident in 2001.
On examination, he found aching, stiffness and restrictions of motion in the neck and back. He could find ‘no significant features’ in the upper limbs, including the left arm.
At [4], he took a history of a motor vehicle accident on 10 October 2001, after which analgaesics were prescribed by the appellant’s doctor and scans were taken of which he ‘could find no details’. He said, ‘The condition seemed to settle within a month or two’, and that Mr Syed ‘experienced severe pain in his neck radiating down the left arm’ about a month or so after that.
He noted that Mr Syed continued to work, but found himself in an industrial unit in Parramatta, where he drove a forklift over potholes and uneven ground, twisting around to look behind. He developed ‘increasing pain in his neck and in his lower back’.
He recorded that on 3 October 2018 Mr Syed came to cervical fusion at the hands of neurosurgeon Dr McEntee, who removed most of the vertebral bodies at C5 and C6, inserted cages filled with bone graft, and stabilised them with an anterior fusion plate from C4 to C7, with a ‘very good result’.
Under the heading, ‘Present treatment’, he noted the appellant was taking anti-inflammatory medication, which he identified later in his reasons as Naproxen. He also noted that he took methotrexate to treat polyarthritis nodosa which had been diagnosed in 2014, and was unrelated to injury.
Under the heading, ‘Present symptoms’, he recorded neck pain with gross restrictions of movement, radiating down the left arm, lower back pain occasionally radiating down the left leg, and diarrhoea of recent origin.
At [4], he provided the following summary of injuries and diagnoses - emphasis added:
“Mr Syed gives a history of being hurt in a relatively minor vehicle accident which occurred in late October 2001. The vehicle which struck his car came from the right. Accurate details of this event are not available since there do not appear to be any records of this event in the General Practitioner progress notes. The other issue is that no radiological investigations were taken around that time. The history from Mr Syed and also in the clinical literature suggests that he continued at work without any time off and that the condition tended to settle over the next month or two. Later, he apparently woke (something like two months after the event) with pain in his neck radiating down his left arm. Nevertheless, he was able to continue with his occupation right up until mid-year 2005. This is some four and a half years later.
Since that occasion, there has been further deterioration of the cervical spine with extensive evidence of severe degenerative change, particularly in the lower segments. This has resulted in an extensive surgical procedure conducted in October 2018 (some 17 years after the original event) where there was a fusion from C4, across C5 and C6 and inserting at C7. In this procedure, the vertebral bodies of C5 and C6 were effectively removed (vertebrectomy) and replaced with a cage with bone grafting. Therefore, his clinical condition at the time of this assessment was very different and would bear no relation at all to how he was within the first year or so of this original injury in October 2001. For that reason, we must therefore rely on the available clinical records and assessments closest to that time. To that end, I would draw attention to the report of 06/07/09 by Specialist Surgeon, Dr John McKee who assessed an impairment of the neck of 5%. General Practitioner, Dr S Gulisano in his comprehensive report of 15/08/08 advised that Mr Syed’s neck pain came on in mid-year 2005.
Specialist Neuro-surgeons, Dr Michael Davies and Dr Michael Coroneos in their respective reports of 03/06/13 and 22/06/15 conclude that this particular event was relatively minor and that it would have aggravated extensive pre-existing degenerative changes. Although Mr Syed mentioned that he had hurt his lower back in the same event, there are no convincing clinical records of this.
The condition of his back only seems to be recorded later in 2005 and 2006 when he was driving a forklift over rough ground, which also had some potholes. In this event this also had a detrimental effect on his cervical spine. Therefore, to summarise this component, it looks as though any possible injuries sustained by Mr Syed associated with the vehicle accident of October 2001 were minor and effectively only seemed to affect the cervical spine and only to a relatively minor degree.”

He explained his calculations of permanent impairment at [10a] in the following way:
“As already advised, there is no convincing evidence of significant involvement of Mr Syed’s left arm or back specifically associated with the vehicle accident of 30/10/01. Just about all of the associated clinical material describes his neck condition and even that is relatively mild. The only assessment I can find which gives a comprehensive evaluation close to that time (although still quite a few years later) was from Specialist Surgeon, Dr John McKee in his report of 06/07/09 where he assesses impairment of the neck of 5%. This figure is therefore taken as fair and reasonable for the impairment of Mr Syed’s neck since in the intervening period of time between then and now, there has been extensive deterioration necessitating a very extensive surgical procedure.”
These reasons indicate that the Medical Assessor was satisfied that Mr Syed had injured his neck in the motor vehicle accident of October 2001, but not the left arm. So far as they went, those findings were not inconsistent with the findings of Arbitrator Foggo, who found injury to the neck, but made no finding either way in respect of injury to the left arm.
The acceptance by the Medical Assessor of the allegation that the neck was injured in October 2001 enabled him to assess both the neck and the left arm under the Table of Disabilities, at least to the extent that symptoms in the left arm radiated from the neck. There was no need for him to make, or to accept, a finding that the left arm was injured.
On examination, he found no significant features in the left arm. However, as indicated, under the heading, ‘Present symptoms’, he recorded neck pain with gross restrictions of movement, radiating down the left arm. We interpret that as meaning radiating from the neck. The presence of symptoms in the left arm radiating from the injured neck necessitated an examination of the left arm, and assessment of loss of efficient use at or above the elbow.
There is no doubt that the Medical Assessor examined the left arm. However, it was incumbent on him to explain why, notwithstanding the presence of pain radiating down the arm from the injured neck, he came to the conclusion that there were ‘no significant features’ and assessed a 0% loss of efficient use of the left arm. In circumstances where the Medical Assessor recorded symptoms in the left arm, insufficient reasons were given to explain why there was no loss of efficient use of the left arm at or above the elbow resulting from injury in 2001. In the absence of reasons, the Panel is not in a position to know whether the conclusions were affected by error. The absence of sufficient reasons itself demonstrates error, requiring that the Medical Assessment Certificate be set aside.

Permanent impairment of the back

The reasons quoted above include the following passages:
“Although Mr Syed mentioned that he had hurt his lower back in the same event, there are no convincing clinical records of this.
The condition of his back only seems to be recorded later in 2005 and 2006 when he was driving a forklift over rough ground, which also had some potholes. In this event this also had a detrimental effect on his cervical spine. Therefore, to summarise this component, it looks as though any possible injuries sustained by Mr Syed associated with the vehicle accident of October 2001 were minor and effectively only seemed to affect the cervical spine and only to a relatively minor degree.”
Read as a whole, those reasons indicate that Dr Anderson was not satisfied that the back was injured in October 2001. Whether injury has occurred and, if so, its nature, lies within the exclusive jurisdiction of the Commission. The task of the Medial Assessor is to determine whether assessed impairment results from injury.
Medical Assessor Anderson’s findings on examination (pain and restricted range of motion) indicate that there was assessable permanent impairment of the back.
In 2009, Arbitrator Foggo had found that the back was injured in the 2001 motor vehicle accident. In its review notice dated 20 May 2022 attached to the Reply, the respondent admitted that those findings bind the parties to these proceedings. The issue of injury to the back having been decided by the Workers Compensation Commission in 2009, it could not be disputed in these proceedings, and was not disputed. The Medical Assessor’s finding that the back was not injured exceeded his power. It demonstrates error, and necessitates the setting aside of the Medical Assessment Certificate, so far as the assessment of the back is concerned.

Permanent impairment of the neck - deterioration since 2009, effects of fusion surgery

As indicated, the Medical Assessor gave the following explanation at [10a] for his assessment of permanent impairment of the neck under the Table of Disabilities – emphasis added:
“The only assessment [of the neck] I can find which gives a comprehensive evaluation close to that time [the motor vehicle accident on 30 October 2001] (although still quite a few years later) was from Specialist Surgeon, Dr John McKee in his report of 06/07/09 where he assesses impairment of the neck of 5%. This figure is therefore taken as fair and reasonable for the impairment of Mr Syed’s neck since in the intervening period of time between then and now, there has been extensive deterioration necessitating a very extensive surgical procedure.”
This passage demonstrates that the Medical Assessor saw his task as one of assessing permanent impairment of the neck resulting from injury on 30 October 2001, and considered that the effects of subsequent deterioration (at least after July 2009) and consequent fusion surgery at C4-7 on 3 October 2018 should be excluded from that assessment. Accordingly, he relied on an assessment of the neck made by Dr McKee on 6 July 2009, almost a decade before the surgery. By necessary implication, he accepted that the condition of the neck in July 2009 resulted from the motor vehicle accident in 2001, and excluded from his assessment all deterioration after July 2009.
The task of the Medical Assessor was to assess permanent impairment of the neck on the day of examination, and to determine what part of that impairment resulted from injury on
30 October 2001. In order to exclude the effects of deterioration in the neck from July 2009, and the effects of fusion surgery in 2018, he had first to determine that there was no causal nexus between the motor vehicle accident in 2001 and either deterioration from 2009 or fusion surgery in 2018. No such findings were made, and no reasons given to support any such findings.
In the absence of such findings, and reasons to support them, the exclusion of the effects of post-2009 deterioration and fusion surgery in 2018 demonstrates error, necessitating the setting aside of the Medical Assessment Certificate.

Whole person impairment - lower gastro-intestinal tract

At [7], Medical Assessor Anderson gave the following reasons for finding that there was no causal nexus between medication to treat injury to the cervical spine on 13 September 2006 (deemed date) and the condition of his lower gastro-intestinal tract:
“I am unable to establish convincing evidence of a significant lower gastro-intestinal condition associated with the medication taken for his cervical spine. With the information available, this has been Naproxen, which is an anti-inflammatory. It is acknowledged that diarrhoea can be a side effect, although is not described as a major side effect. The same is said with methotrexate, which was taken since 2014 for the polyarthritis nodosa. Therefore, the information available is just too nebulous to convincingly determine that Mr Syed has a significant lower gastro-intestinal deficit specifically associated with medication for any of his work related phenomena.”
At [10a], Medical Assessor Anderson gave the following reasons for assessing a 0% whole person impairment (lower gastro-intestinal tract):
“[Assessment of the lower gastro-intestinal tract] is addressed in AMA 5 Page 128, Table 6-4. Mr Syed is in Class I. This provides a whole person impairment ranging between 0% and 9%. The associated criteria indicates signs and symptoms of colonic or rectal disease ….. Mr Syed gives a history of diarrhoea, although described that this was of relatively recent onset. He is also taking methotrexate for a completely unrelated auto-immune condition, polyarthritis nodosa. Therefore, there is no convincing evidence of a significant lower gastro-intestinal tract dysfunction associated with his medication.”
At [10b], he explained the differences between his assessment and that of Dr Greenberg:
“The gastro-intestinal condition is addressed by Specialist GIT Surgeon, Dr Anthony Greenberg and Specialist Gastro-enterologist, Dr Sidarth Sethi. Dr Greenberg advises that there is an impairment of the lower gastro-intestinal tract associated with his medication, although this figure is very low, with an initial 3% of which 1% is deducted, giving a final 2%. An alternative view is expressed by Specialist Gastro-intestinal Physician, Dr Sidarth Sethi in his report of 04/09/21. Dr Sethi advises of the extensive time delay since the development of any gastro-intestinal condition. He also advises quite strongly that Mr Syed has a diagnosis of gastro-oesophageal reflux disease (not specifically associated with this assessment) and also irritable bowel syndrome. He also advises that it would be highly unlikely for Mr Syed’s medication to have any significant effect on the lower gastro-intestinal system.”
Read as a whole, these reasons indicate that Medical Assessor Anderson was satisfied that the worker took Naprosyn to alleviate the effects of injury to the cervical spine, but was not satisfied of a causal nexus between Naprosyn and diarrhoea, because:
(a)    diarrhoea is not a ‘major’ side effect of Naprosyn (though it is one of the known side effects);
(b)    it is a side effect of Methotrexate, which is not taken for the treatment of injury;
(c)    diarrhoea is of recent onset, and
(d)    Dr Sethi has diagnosed GORD and IBS.
Even if accepted as true, none of these reasons, alone or in combination, is sufficient to explain a finding that Naprosyn does not contribute to the condition of diarrhoea, or to explain the omission to find there was a causal nexus between the two. As the Medical Assessor found, Naprosyn is a known cause of diarrhoea. The fact that symptoms are of recent onset (assuming that the medication has been taken for a long time) does not preclude it being causative. The fact that Methotrexate can also be causative does not exclude the possibility that Naprosyn contributes to the condition. The diagnosis of other conditions is not relevant.
In the circumstances, the reasons for the Medical Assessor’s finding are insufficient to explain it. That demonstrates error. This ground also succeeds.

Deduction of one-half for pre-existing condition of the cervical spine

At [8f], the Medical Assessor gave the following reasons for deducting one-half for pre-existing degeneration of the cervical spine:
“Attention is drawn to the very obvious pre-existing degenerative changes which have existed in Mr Syed’s cervical spine. When looking critically at the available radiological investigations, this level of severe deterioration would not reasonably have been anticipated from the relatively mild vehicle accident of October 2001, particularly when he did not take any time off work and does not appear to have had any radiological investigations at that time.”
He added at [11]:
“Attention is drawn to the extensive evidence of very severe degenerative features, particularly in the lower cervical segments. Due to the effects of the relatively minor vehicle accident of October 2001 and also to the jarring effects of driving the forklift, particularly going backwards with turning his head would have resulted in accelerated degenerative changes of the cervical spine. The underlying degenerative features have been identified as having been in existence well before the vehicle accident of 2001. Therefore, it looks as though the more recent event [sic, assessment] of his cervical spine does have a strong relationship to three basic factors. The first of these is the vehicle accident of October 2001, there is also the effects of naturally occurring degenerative changes over a period of time which now spans 22 years and also to the aggravating features which he experienced at his occupation, particularly driving a forklift. Therefore, there has been a combination of extensive additional features contributing to the cervical spine condition, for which the extensive fusion procedure was undertaken. Therefore, I would assess that these additional features would account for half of this impairment evaluation.
Doing our best to understand it, we interpret this as a finding that the current condition of the cervical spine results from a combination of the motor vehicle accident on 30 October 2001, natural cervical degeneration since 2001, and the nature and conditions of employment from 25 October 2001, particularly forklift driving.
The Medical Assessor assessed a 29% whole person impairment (cervical spine) as a result of the nature and conditions of his employment. No error is alleged in respect of that assessment.
His task then was to determine, pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998, whether any part of that impairment was due to a pre-existing condition or abnormality and, if so, to determine what part. He was obliged to give reasons for his determinations. It was not open to him to assume that, because there was a pre-existing condition or abnormality, it must contribute to impairment: Cole. To determine that there was a contribution to impairment, he had to find that, but for the pre-existing condition, the present impairment would be less than it is: Ryder.
In respect of the claim for whole person impairment compensation, injury was alleged as a result of the nature and conditions of employment from 25 October 2001 to 28 August 2006. In order to find that there was a pre-existing condition, it was necessary to find that the condition existed prior to that period.
The Medical Assessor approached his task, first, by finding that degeneration of the cervical spine was present “well before the vehicle accident of 2001” – that is, well before
October 2001. He relied on radiological investigations which he listed at [6]. The earliest of these were a CT scan of 4 June 2005 and an MRI scan of 22 June 2005. He summarised both as disclosing extensive degenerative changes from C4 to C7 with small posterior protrusions. In our view, it was reasonably open to him to find, as he did, that the degeneration was so extensive as at June 2005 that it probably existed prior to
25 October 2001, which was the commencement of the period of nature and conditions of employment alleged to have resulted in whole person impairment. We can identify no error in respect of that finding. He appears to have confused the date of the motor vehicle accident (30 October 2001) with that of the commencement of the period of nature and conditions (25 October 2001) but, as it was reasonably open to find that the degeneration occurred prior to October 2001, nothing turns on it.
We note that his view is consistent with that of independent medical expert and surgeon
Dr Miller in his assessment of 25 July 2019, and by Approved Medical Specialist Dr McKee in his Medical Assessment Certificate of 6 July 2009, even if Dr McKee seems to have taken a different view in his later report of 21 December 2020.
However, the reasons given by the Medical Assessor disclose that he made an impermissible assumption: namely that, because there was a pre-existing condition of extensive degeneration, it must necessarily contribute to impairment now. No reasons were given for the finding that the degeneration currently contributes to whole person impairment. That assumption, and the omission to provide reasons to justify it, demonstrate error.
In order to find that such a contribution exists, it was necessary for the Medical Assessor to find that, but for the pre-existing condition, the impairment would be less than it is. He made no such finding. That, too, demonstrates error.
This ground also succeeds.
The Panel referred the worker for examination by two of its members:
(a) Medical Assessor Stephenson in respect of permanent impairment of the neck and back, and of the deduction pursuant to section 323, and
(b) Medical Assessor Garvey in respect of the lower gastro-intestinal tract.
Their reports follow;
“Report of Dr Stephenson
1.   The worker's medical history, where it differs from previous records
On 30 October 2001 Mr Syed was driving home from the prison complex when his vehicle was struck by another vehicle. He experienced neck pain, left arm pain at above elbow and back pain, assessed in the table of disabilities by assessor Anderson.
The claimant advised that in the prison complex, he was teaching forklift driving. He was driving a forklift in that regard and experienced occurrence of symptoms. There were no shock absorbers on the forklift. He was constantly looking about and driving the forklift over a period of 14 years.
2.   Additional history since the original medical assessment certificate was performed.
I note the report of Dr Geoffrey Miller dated 25/7/01, who made a one tenth deduction and found a causal nexus between the MVA of 30/10/01 and the aggravation of the degeneration of the lumbar spine requiring conservative management. He assessed 10% permanent impairment of the back as did I.
3.   Findings on clinical examination.
Neck
On examination of the neck, there was asymmetric loss of range of motion as follows:
·    Cervical lateral tilt right 20 degrees and left 20 degrees.
·    Cervical flexion 20 degrees.
·    Cervical extension 10 degrees.
·    Cervical rotation right 50 degrees and left 30 degrees.
I noted the cervical scarring and the history of the three-level anterior cervical discectomy and fusion.
Approved medical specialist Dr McKee examined Mr Syed on 23 June 2009. He later reported on 21 December 2020, at page 9 under the heading “Diagnosis and Opinion”:
‘As a direct result of motor vehicle accident 25 October 2001, it is my opinion that Mr Syed developed an axial condition affecting his cervical spine. He had been able to continue driving to his home, and within a few days of the accident his neck symptoms had completely resolved, and for the ensuing two months, he had been able to undertake all activities of daily living. However, on 24 December 2001, while on holidays, he had awoken one morning with severe pain at the base of neck with radiation across to his left shoulder and down his left arm to the wrist. This had resolved within hours, and after consulting with his family doctor, he had not undergone any investigations, but he had been prescribed anti-inflammatory medication and returned to work on 4 January 2002.’
There is 20% permanent impairment of the neck.
I would deduct 1/10^th for the effects of pre-existing degeneration in the cervical spine evidenced on the scans, yielding 18% permanent impairment of the neck.
Left arm at or above the elbow
I have noted on my clinical examination, restriction in range of motion the left shoulder as follows:
Range of Motion Left Shoulder:

Abduction

70º

Adduction

10º

Flexion

60º

Extension

30º

External rotation

40º

Internal rotation

70º

There is a 15% permanent loss of use of the left arm at and above left elbow.
There was cervical radiculopathy in accordance with [4.27] of the Guidelines, because the following criteria were satisfied:
· Muscle weakness anatomically localised to an appropriate spinal nerve root distribution (major criterion)
· Muscle wasting – atrophy.
The restrictions in movement of the left shoulder are caused by cervical radiculopathy resulting from surgery to the neck.

Back
On examination of the lumbar spine, he would forward flex the fingers to each knee level only, with lateral flexion to knee level on the left and lower third of the thigh on the right. There is no increased sciatic nerve tension. There was no calf muscle wasting. There is no evidence of radiculopathy on the lower extremities. Power or dorsiflexion both feet and ankle strong at 5/5.
There is 10% permanent impairment of the back.
4. Results of any additional investigations to original medical assessment certificate.
There were no additional investigations.”

Assessment – neck

The Panel accepts the clinical findings of Medical Assessor Stephenson, have regard to his specialist expertise and clinical experience.
As indicated, by Certificates of Determination dated 19 August 2009 and
10 September 2009, the Workers Compensation Commission awarded permanent impairment compensation as a result of the 2001 motor vehicle accident as follows, in accordance with the assessment of approved medical specialist Dr McKee:
(a)    4.5% permanent impairment of the neck;
(b)    0% permanent loss of efficient use of the left arm at or above the elbow, and
(c)    0% permanent impairment of the back.
That amounted to a finding that, as at 2009, there was permanent impairment of the neck resulting from the 2001 motor vehicle accident, though not permanent impairment of the back or loss of efficient use of the left arm. That finding was made, notwithstanding the history recorded by Dr McKee at [5] of his Medical Assessment Certificate that neck symptoms resolved after the accident until the emergence of further symptoms on 24 December 2001. At that time the worker (according to his statement of 27 October 2018) was driving forklifts and, according to the history recorded at [8] of the Medical Assessment Certificate, was opening and closing heavy prison doors, after which he remained asymptomatic until a further emergence of symptoms in May 2005.
The finding by the Commission in 2009 that there was then permanent impairment of the neck resulting from the 2001 motor vehicle accident binds the parties, and precludes any finding to the contrary.
Medical Assessor Anderson found at [7] of his reasons that, since 2005, “there has been further deterioration of the cervical spine with extensive evidence of severe degenerative change, particularly in the lower segments. This has resulted in an extensive surgical procedure conduct in October 2018 ….”.
We note that extensive degenerative changes in the cervical spine were demonstrated by a CT scan of the cervical spine conducted as early as 4 June 2005, and again by a CT and MRI scan dated 22 November 2017, both of which were referred to at [6] of the Medical Assessment Certificate. Nevertheless, we are likewise satisfied that further degeneration occurred in the intervening period, as there is no persuasive evidence that the need for fusion surgery arose prior to 2017 or 2018. It is likely that the further degeneration contributed to the need for fusion surgery.
It does not follow, however, that there was no causal connection between the effects of the 2001 motor vehicle accident and fusion surgery. The fact that the 2001 accident caused continuing permanent impairment of the neck as at 2009 makes it likely that the effects of the motor vehicle accident had accelerated the progress of degeneration. There is no persuasive evidence that this acceleration ceased, or was somehow negated, during the period 2009 to 2018. In our view, but for the effects of the motor vehicle accident, the extent of the degeneration by 2018 is likely to have been less than it was. It follows that the chain of causation between the 2001 accident and the need for surgery in 2018 was unbroken, even if there was by then an additional contributor to the need for surgery – namely, the nature and conditions of employment.
Accordingly we are satisfied that the 2001 motor vehicle accident contributes to the permanent impairment caused by cervical fusion surgery.
In accordance with Medical Assessor Stephenson’s findings, a deduction of one tenth is appropriate, because the degeneration revealed by the scans in 2005 (discussed below) was so extensive that it is likely there was degeneration prior to the motor vehicle accident, the amount of the deduction is difficult to determine as many years elapsed between the 2001 motor vehicle accident and cervical fusion in 2018, and the nature and conditions of employment also contributed to the need for surgery. In our view, the deduction is not at odds with the available evidence.
In accordance with Medical Assessor Stephenson’s findings, we assess 18% permanent impairment of the neck as a result of injury on 30 October 2001.

Assessment – left arm at or above the elbow

Medical Assessor Stephenson found there was cervical radiculopathy. We accept the accuracy of his clinical observations. As one major and one minor criterion was present in accordance with [4.27] of the Guidelines, we accept there was cervical radiculopathy.
In the absence of evidence of any other cause, we are satisfied that restrictions of motion in the neck result from radiculopathy.
It is a reasonable inference that radiculopathy results from surgery to the cervical spine, and we draw that inference.
For the reasons already given above, we are satisfied that the surgery resulted from injury to the neck in 2001.
For those reasons, and accepting Dr Stephenson’s measurements, we assess 15% loss of efficient use of the left arm at or above the elbow as a result of the 2001 motor vehicle accident.

Assessment - back

We accept that the back was injured in the motor vehicle accident of 30 October 2001, in accordance with the findings of Arbitrator Foggo.
It does necessarily not follow, however, that current impairment of the back results from injury in October 2001. On examination in 2009, Dr McKee could identify no permanent impairment of the back caused by the motor vehicle accident. Two subsequent Certificates of Determination issued in 2009 gave effect to that finding. At [4] of his Medical Assessment Certificate, Medical Assessor Anderson recorded a history that back symptoms had emerged in the context of forklift driving. In his report of 21 December 2020, Dr McKee recorded a history of low back pain with radiation down the left leg first emerging on 29 August 2006. He advised that the nature and conditions of employment from 25 October 2001 to 29 August 2006 had aggravated pre-existing asymptomatic degenerative change in the lumbosacral spine, but did not attribute permanent impairment of the back to the 2001 motor vehicle accident.
Similarly, though we accept that there was injury to the back in 2001, we are not satisfied that it has caused permanent impairment of the back, or that the current impairment of the back results from injury in 2001. We assess 0% permanent impairment of the back as a result of the 2001 motor vehicle accident.

Deduction for pre-existing condition of the cervical spine

Dr Anderson’s assessment of 29% whole person impairment (cervical spine) as a result of in the nature and conditions of employment is not contested on appeal. We turn to consider whether a deduction for a pre-existing condition of the cervical spine is available.
We note the degenerative condition of the cervical spine disclosed in:
(a) Dr Wong’s report of an investigation performed on 4 June 2005 (described variously as an X-ray and a CT scan in Dr McKee’s report of 21 December 2020, and his Medical Assessment Certificate of 6 July 2009 respectively) and
(b) Dr Seeff’s report of an MRI scan of 22 June 2005.
In our opinion, the degeneration there described was sufficiently advanced to make it likely there was degeneration of the cervical spine prior to 25 October 2001.
There is a causal connection between the pre-existing degeneration and current impairment of the cervical spine, because:
(a)    a DRE category IV impairment was assessed as a result of fusion surgery which occurred on 3 October 2018;
(b)    the surgery itself was rendered necessary by aggravation of the pre-existing degenerative disease by the nature and conditions of employment from 2001 to 2006, acceleration of the disease process by the consequences of the 2001 motor vehicle accident, and the natural progress of the degenerative disease from 2006;
(c)    had there been no pre-existing degeneration, it would not have been aggravated as it was by the nature and conditions of employment, and
(d)    in those circumstances, it is likely that permanent impairment would be less than it now is, because either that fusion surgery would not have been necessary at this stage of life or, if required, would have been less extensive than it was.
It follows that the test in Ryder is satisfied. A deduction is available.
The extent of the deduction is difficult to determine, because about 16 years elapsed between the onset of the work-related aggravations in 2001, which continued until the cessation of work in 2006, and surgery. A deduction of one-tenth is not at odds with the available evidence. We note that Dr G Miller made a similar deduction in his assessment of 25 July 2019, addressed to the worker’s solicitors.
Deducting one-tenth from Medical Assessor Anderson’s assessment of 29% whole person impairment (which is not the subject of appeal) yields 26.1%, rounded to 26% WPI.

Assessment of the lower gastro-intestinal tract

The report of Medical Assessor Garvey follows;
“1. DETAILS OF MATTERS REFERRED FOR ASSESSMENT
The following matters have been referred for assessment (s 319 of the 1998 Act):
·    Dates of injury: January 30, 2001, 2^nd event September 13, 2006
·    Body parts/systems referred: Lower gastrointestinal tract
·    Method of assessment: Whole person impairment
1.   EVIDENCE
Documentary Evidence
The following documents were referred by the Commission for this assessment:
MAC date April 19, 2023
Body part referred lower gastrointestinal tract
Date of injury January 30, 2001 and second event September 13, 2006
Present symptoms: Now experiences some diarrhoea, relatively recent development
General health polyarteritis nodosa in 2014 for which he takes methotrexate weekly
Work history: Medically retired at the end of 2006
Examination: Abdomen normal, laparoscopic port site incision and umbilical hernia
Summary: lower back condition has grumbled on managed by anti-inflammatory medication and methotrexate for polyarteritis nodosa (diarrhoea side effect). Diarrhoea has been relatively recent. No weight loss.
Decision: Medical assessor is unable to establish convincing evidence of a significant lower gastrointestinal condition associated with medication taken for his cervical spine which was naproxen (diarrhoea side effect)
Assessment: History of diarrhoea was relatively recent onset and also taking methotrexate for a completely unrelated autoimmune condition polyarteritis nodosa therefore, there is no convincing evidence of a significant lower gastrointestinal tract dysfunction associated with his medication
Additional Information
The following information was obtained in accordance with Section 324(1) of the 1998 Act:
Nil
·    List any imaging studies provided by the worker which were not listed in the documentation provided: Nil
2.   WORKER’S DETAILS INCLUDING
·    Date of examination: July 31, 2023
·    Date of birth and age at examination: August 6, 1960; age 63
·    Hand dominance: Right
·    Details of who attended the examination: The Claimant attended with his fiancée Lucia
·    Date of injury: October 25, 2001 with recurrence in August/September 2005/2006
·    Employer and occupation: Department of Corrective Services at Silverwater; Prison Officer Industrial Manager
3.   HISTORY RELATING TO THE INJURY
·    Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
·    I asked the Worker to tell me of the incident in his own words and I wrote this down as closely verbatim as was possible and reproduce it here: The Claimant said that he was on his way home from work from Silverwater Prison at about 2:30 PM in the afternoon in 2001. He was driving a Daiwu sedan and on his way to Campbelltown. Another vehicle drove straight through a stop sign at Holker Street and hit him on the right side and his car spun around twice and came to a halt in front of a Toyota Hi Ace van. He was out cold for a couple of seconds and then he called a friend from work to come and help. There was no bleeding, but he felt whiplash and he got his friend to take him home after exchanging details with the other driver. The police and ambulance did not attend, but a Tow Truck took his vehicle away to be repaired at the smash repair shop. Immediately he felt pain of sharp nature in his neck radiating to his back and his left arm. He returned to work the next day and reported the incident and he went to his doctor and was treated with painkillers. He struggled with pain in his neck, left arm and leg which continued on and off, and he went to another doctor and had scans. He was running the industry section at the prison and that is how we continued into 2005.
·    Subsequently in 2005, he was driving a forklift over a rough surface and the forklift had no shock absorbers and when he hit a rough patch, he felt a crack in his neck and he blacked out with trouble in his neck and he made a report of this incident in 2005. Then in 2006 a similar thing happened and although he did not want to retire, his workplace assessor said that he was not well enough to continue at work and so he was escorted out of the prison and sent home. An MRI scan and CT scan were performed of his neck and he was diagnosed “really bad” and was told by Orthopaedic Specialist Surgeon Dr Rimmer that his spine was in very bad shape and he was retired. He was back and forth to the insurance company without much success so he engaged a solicitor by the name of Chris Clarke in 2008 and eventually his work-related neck injury was accepted by the insurance company. He had an anterior cervical fusion operation in 2018 on discs C4, C5 and C6 which improved but he still had pain on turning his neck, flexing it and extending it.
·    With respect to diarrhoea, this started in 2001 about 6 months after he had the first medication after his first neck injury. If it gets worse occasionally there is blood in the motion. In addition, he had difficulty swallowing food because the muscles are weak after the operation on his neck and he had a choking sensation because the muscles were not working properly after the 2018 operation. He gets occasional indigestion and nausea and vomiting and reflux symptoms. The diarrhoea lasts for a couple of days and during an episode it might occur 5 or 6 times per day and this might occur once or twice a week. It is reduced when he takes cereal or porridge or stops the Naprosyn. If he stops the Naprosyn for a few days the diarrhoea subsides and he finds Tumeric and honey and soft foods helpful. With respect to diet, the Claimant said that he eats about half the diet of a normal person and he cannot digest well and his last meal has to be taken at 4 PM in the afternoon because of stomach bloating and rumbling and diarrhoea in the evening.
·    With respect to polyarteritis nodosa, this was diagnosed in 2014 after a trip to Tanzania in Africa. He was sick for 2 weeks after he returned home and was treated at Royal Brisbane Hospital and remained in hospital for about 10 days. He developed vasculitis and skin rash which was biopsied to confirm the diagnosis of polyarteritis nodosa and he was treated with intravenous cyclophosphamide every fortnight for 9 series of infusions intravenously. In addition, he had been treated with methotrexate and folic acid and prednisolone on a weekly basis after the intravenous cyclophosphamide had ceased. The treatment worked because the foot drop on the right resolved but he did develop peripheral neuropathy of both hands and mouth ulcers. He believes the diarrhoea was not made worse by the methotrexate or cytotoxic medication because it had existed about 14 years before he was treated with this cytotoxic medication.
·    Present treatment: Naprosyn SR 1000 mg/day when necessary, alternating with Nurofen 2 BD both of which cause diarrhoea. Methotrexate 15 mg tablet every Sunday and folic acid rescue, azithromycin for respiratory infection in the left lung.
·    Present symptoms: Constant pain in the neck and left arm, diarrhoea, poor digestion unable to eat beef, spices, cheese; limited ability to dine out; cannot settle at night because of disturbed digestive. Cannot carry more than 5 kg, cannot walk more than 10 minutes (half a kilometre), cannot sit more than 30 minutes without having to get up and stretch.
·    Details of any previous or subsequent accidents, injuries or condition: Previously healthy apart from polyarteritis nodosa.
·    General health: “Struggling”.
·    Work history including previous work history if relevant: Corrective services for 14 or 15 years. Previously with State Railways in Sydney. Retired due to his spinal injury in 2007. Studied at Southern Cross University and looking for work in the administrative sector of up to 15 hours per week with Wise Employment looking for work as Case Manager, drug and alcohol coordinator or other administrative tasks.
·    Social activities/ADL: Non-smoker and non-drinker. Engaged man with 3 children between the ages of 26 and 36.
4.   FINDINGS ON PHYSICAL EXAMINATION
Inspection: There was no cachexia, pallor of anaemia or jaundice. There was no clubbing of the fingers but liver palms. There were no spider naevi or stigmata of liver disease on the chest. There were no Caput Medusae (distended veins in chest or abdomen). The abdomen was symmetrical and flat in shape. There were no abdominal masses visible or discolouration. There were scars from an 8 cm paraligamentous right inguinal hernia repair 40 years ago, a 3 cm infra umbilical incision from an umbilical hernia repair in 2016, laparoscopic port site incisions from laparoscopic cholecystectomy in 2016 and a 4 cm oblique neck incision from anterior cervical fusion, but no sinuses or fistulas and the umbilicus was normal.
Palpation: There were no enlarged lymph glands palpable in the neck or groin regions. The supraclavicular fossae were normal, the external potential hernia orifices were closed, the femoral pulses were palpable and the external genitalia were normal. Light palpation was normal. Moderate palpation of the abdomen was normal in all quadrants. There was no muscular guarding and no rebound tenderness or crossed rebound tenderness. The liver was not palpable, nor was the spleen and the kidneys were not ballotable. There were no abdominal masses palpable.
Testing his conjoint tendons by resisted sit-up was normal on each side. His Carnet’s test for abdominal wall pain was negative on each side.
Percussion: The percussion note was resonant and there was no fluid thrill and no shifting dullness.
Auscultation: On auscultation the bowel sounds were normal and there was no aortic bruit and no gastric splash.
Rectal examination revealed liquid faeces and there were no fissures, fistulas or haemorrhoids and no blood. The weight was 72.3 kg (BMI 26.9).
5.   DETAILS AND DATES OF SPECIAL INVESTIGATIONS
Gastroscopy May 23, 2022: Mild erosive oesophagitis, nodular area at gastro-oesophageal junction. Antral gastritis probably the result of a combination of aspirin, Naprosyn and methotrexate. Duodenum normal
Histology May 23, 2022 columnar lined oesophageal mucosa with evidence of intestinal metaplasia and associated moderate chronic inflammation and reactive changes of squamous mucosa. Mild increase in antral chronic inflammatory cells and focal intestinal metaplasia with mucosal atrophy
Colonoscopy June 6, 2022 normal (hyperplastic polyp not significant)
Histopathology Biopsy report June 6, 2022: Ileum normal, colonic mucosa normal, ascending colon polyp: Ganglioneuroma (asymptomatic benign tumour of the sympathetic nervous system)
6.   SUMMARY
Diarrhoea (NSAIDs colopathy)
·    consistency of presentation
This Claimant’s history and examination is consistent with his presentation
7.   EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a.   Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body par/system: No
b.   Have all body parts/systems stabilized/reached maximum medical improvement? Yes
c.   If not, please list those injuries not yet stable/at maximum medical improvement: Not applicable
d.   If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable
e.   Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No
f.    If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Not applicable
8.   THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
History, physical examination and digestive tract endoscopy reports
9.   REASONS FOR ASSESSMENT
a.   My opinion and assessment of whole person impairment
10% WPI
In making that assessment I have taken account of the following matters:-
Examination findings show liquid stool. Digestive tract endoscopy is within normal limits. The history obtained is of frequent episodes of diarrhoea lasting days
b.   An explanation of my calculations (if applicable)
This Claimant suffers from objective evidence of colonic or rectal disease being liquid stool on physical examination and gastrointestinal symptoms with disturbance of bowel function and restriction of diet and no impairment of nutrition status. Therefore he is assessed as a Class 2 impairment of 10% WPI. He cannot be a Class I impairment because the signs and symptoms are not infrequent nor of a of brief duration, and limitation of diet is required (Table 6-4, page 128, AMA5)
c.   My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
Greenberg, Anthony Surgeon medical reports August 3, 2021 (videoconference): Cholecystectomy in 2017. Reflux symptoms Examination: BMI 25.5, epigastric tenderness Assessment 3% WPI for upper digestive system and 3% WPI for lower digestive symptom for medication induced gastrointestinal motility disorder, with one third deduction for the effects of methotrexate
September 19, 2022 gastrointestinal symptoms are more likely than not a consequence of his medication regime and deducted one third for the effects of methotrexate (cytotoxic)
Comment: 3% WPI for lower digestive impairment would be reasonable, but this Claimant is clearly a Class 2 impairment for the reasons listed above. It is noted that Dr Greenberg performed his assessment by video telemetry conference whereby no physical examination could be performed
Sethi, S: Gastroenterologist medical report (video conference) September 4, 2021 gastrointestinal symptoms of diarrhoea and loose runny stools and faecal urgency for the first time in 2011. Cholecystectomy in 2007, polyarteritis nodosa diagnosed in 2014.
Conclusion: IBS has occurred independently of his employment, work injury and medications due to the time gap of 10 years which has strongly negated any causative role.
Assessment 0% WPI for upper and lower digestive tract impairments (noted to use AMA4 and not AMA5)
Comment: The diagnosis for this Claimant is unlikely to be Irritable Bowel Syndrome because diarrhoea as a side effect of Naprosyn occurs in about 10% of patients and methotrexate can cause malabsorption and alteration in the composition of the gut microflora resulting in altered motility which can lead to diarrhoea. Irritable Bowel Syndrome should only be a diagnosis of exclusion when all other possible causes have been excluded. It is noted that Dr Sethi performed his assessment by video telemetry conference whereby no physical examination was able to be performed
d.   I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.”

Assessment – lower gastro-intestinal tract

The Panel accepts the clinical findings of Dr Garvey, having regard to his specialist expertise and clinical experience. It agrees that the criteria for a class 2 impairment are satisfied, because the worker suffers from objective evidence of colonic or rectal disease, being liquid stool on physical examination, and gastrointestinal symptoms with disturbance of bowel function and restriction of diet and no impairment of nutrition status. The criteria for a Class 1 impairment are not satisfied, because the signs and symptoms are not infrequent, they are not of brief duration, and limitation of diet is required.
A class 2 impairment attracts an assessment of 10% whole person impairment.
Having regard to the onset of diarrhoea as early as 2001, and to the fact that diarrhoea subsides when Naprosyn is not taken even for a few days, the Panel is comfortably satisfied that symptoms in the lower gastro-intestinal tract are substantially caused by the ingestion of Naprosyn.
It is not satisfied that there is a causal relationship between injury to the cervical spine and either polyarthritis nodosa or cholecystectomy.
The respondent submits:
(a) that diarrhoea is a symptom, but not a clinical sign, relying on the Guidelines at [16.9], and
(b) that ‘any whole person impairment with respect to the lower gastrointestinal tract should be apportioned between the ingestion of NSAID’s taken to treat the workplace injury and those taken to treat the cholecystectomy and the non-work related polyarthritis nodosa (methotrexate).’
Paragraph 16.9 of the Guidelines deals with constipation and irritable bowel syndrome, but makes no reference to diarrhoea. We are not satisfied that it is intended to deal with diarrhoea at all. Diarrhoea is a common condition of the lower gastrointestinal tract, which can result from various causes. Where diagnosed, it can give rise to permanent impairment, and is relevant to an assessment of whole person impairment with respect to the lower gastrointestinal tract. We have taken it into account.
The Panel is satisfied that Methotrexate makes a significant contribution to diarrhoea in this case, and that the effects of cholecystectomy conducted in 2016 are likely to have an appreciable but minor effect on the level of permanent impairment now.
Though a precise attribution is not possible, we consider that about half the current impairment is caused by a combination of Methotrexate and the cholyscectomy, and not Naprosyn. The balance is likely to result from the ingestion of Naprosyn.
Notwithstanding the submission of the appellant, we are not bound by the opinion or assessment of any previous assessor, including Dr Greenberg. The task of any assessor is to assess whole person impairment resulting from injury. Ingestion of Naprosyn results from injury to the cervical spine. Its ingestion causes about half the current impairment, which is 5% whole person impairment. Accordingly, a 5% whole person impairment results from injury to the cervical spine.
The Medical Assessment Certificate of Medical Assessor Anderson is revoked and replaced with the attached Medical Assessment Certificate.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7159/22
Applicant:	Sabahat Syed
Respondent:	Secretary, Department of Communities & Justice

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 Anderson 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	13/09/06 (deemed)	Chap 4 P 24	P 392 T 15-05	29	1/10^th	26
Lower gastro-intestinal tract	13/09/06 (deemed)	P 78 Chap 16	P 128 T 6-04	5	0	5
Total % WPI (the Combined Table values of all sub-totals)					30

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received before 1 January 2002

Matter Number:	W7159/22
Applicant:	Sabahat Syed
Respondent:	Secretary, Department of Communities & Justice

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 Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

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

Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee	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 (after deduction of any pre-existing impairment in column 4.)
Neck	30/10/01	20	1/10^th	18
Left arm at or above the elbow	30/10/01	15	0	15
Back	30/10/01	0	0	0

Abduction	70º
Adduction	10º
Flexion	60º
Extension	30º
External rotation	40º
Internal rotation	70º

[2024] NSWPICMP 75

15 February 2024