Tang v Bandsaw Furniture Manufacturing Pty Ltd
[2024] NSWPICMP 439
•10 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tang v Bandsaw Furniture Manufacturing Pty Ltd [2024] NSWPICMP 439 |
| APPELLANT: | Zi Guang Tang |
| RESPONDENT: | Bandsaw Furniture Manufacturing Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 10 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of the lumbar spine following an injury; Medical Assessor (MA) made a deduction of one-half pursuant to section 323 for a degenerative condition in circumstances where the worker was asymptomatic and performing heavy work duties when the injury occurred; Held – MA erred in making the deduction in circumstances where there was insufficient evidence as to the actual consequences of the pre-existing condition; worker re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 March 2024 Zi Gunag Tang (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 February 2024.
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.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) dated 11 December 2023 in which he claimed 12% whole person impairment (WPI) of the lumbar spine as a result of the injury in his employment as a truck driver with Bandsaw Furniture Manufacturing Pty Limited (the respondent) on 25 March 2002.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated 17 January 2024 the matter was referred to the Medical Assessor, Dr Drew Dixon, for assessment of WPI of the lumbar spine with the date of injury being 25 March 2002.
The Medical Assessor examined the appellant on 14 February 2024 and assessed 7% WPI of the lumbar spine. The Medical Assessor made a deduction of one half for pre-existing injury, condition or abnormality which resulted in a total of 4% WPI in respect of the injury on 25 March 2002.
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.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent submitted that a further examination of the appellant was not necessary.
As a result of that preliminary review, the Appeal Panel determined that there was a demonstrable error in the MAC and that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence to make a determination.
EVIDENCE
Documentary evidence
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.
Further medical examination
Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 24 June 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
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
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) ground 1 – the Medical Assessor erred in applying a 50% s 323 deduction of the 1998 Act. The Medical Assessor had no reason to doubt the appellant’s history that he had made a full recovery from the injury in 2001 and considered himself to be healthy, fit and highly capable without any pain or restrictions in his lower back prior to the subject injury. The evidence before the Medical Assessor demonstrates that the appellant was asymptomatic prior to the work injury on 25 March 2002.
(b) Mere existence of a congenital spinal condition is not enough to warrant a deduction under s 323. There was no medical or lay evidence before the Medical Assessor that established that the lumbar spondylosis and bilateral facet arthrosis ought to equate for one half of the degree of impairment. The 50% reduction under s 323 where there is no evidence “that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury” constitutes a demonstrable error.
(c) The deduction of 50% was too high and given the evidence before the Medical Assessor, the required deduction is “difficult” to determine and the deduction ought be 10%.
(d) Ground 2 – the Medical Assessor failed to disclose a path of reasoning for disagreeing with the opinion of the appellant worker’s Independent Medical Examiner (IME), Dr Kai Lee. The Medical Assessor is silent and proffers no explanation of why his opinion differs from Dr Lee.
(e) The Medical Assessor is silent as to the report of Dr Lee dated 13 July 2022. The report of Dr Lee was before the Medical Assessor and appears in the annexures to the ARD. The report is not even mentioned. There is no attempt made by the Medical Assessor to explain why his assessment differs from the assessment of Dr Lee.
(f) The Medical Assessor failed to:
(i)engage with and evaluate Dr Lee’s report and failed to give reasons which explain why he rejected Dr Lee’s opinion, and
(ii)disclose his actual path of reasoning as to why his opinion differs from the appellant worker’s IME, Dr Lee. In doing so, the Medical Assessor has fallen into demonstrable error.
(g) Ground 3 – the Medical Assessor failed to disclose a path of reasoning for his determination of the degree of permanent impairment. At page 5 the Medical Assessor concludes that: “That for his lumbar spine is DRE II with impacting on his ADLs giving 7% WPI.”
(h) The Medical Assessor set out the matters taken into account when determining the assessment of WPI. However, there is no engagement or explanation proffered as to why the injury to the lumbar spine fits within the diagnosis-related estimate (DRE) II category rather than the DRE III.
(i) The Medical Assessor failed to disclose his actual path of reasoning as to his assessment of the degree of whole person impairment. The appellant submits that the Medical Assessor’s failure to disclose his actual path of reasoning constitutes a demonstrable error.
(j) Ground 4 – the Medical Assessor failed to disclose a path of reasoning in relation to the determination of the s 323 deduction. At page 6, the Medical Assessor determined the s 323 deduction as: “One half as he has widespread degenerative changes in his lower lumbar spine.”
(k) The Medical Assessor continued to state that the previous injury, pre-existing condition or abnormality directly contributed to the assessment as a result of “lumbar spondylosis and bilateral facet arthrosis”.
(l) The Medical Assessor proffers no explanation as to his determination of the s 323 deduction. There is no consideration of the appellant’s evidence that his prior injury had settled and he was asymptomatic as at the time of the subject injury.
(m) The Medical Assessor failed to disclose his actual path of reasoning as to why he applies a s 323 deduction. This constitutes a demonstrable error by the Medical Assessor.
(n) The MAC involved application of incorrect criteria and/or demonstrable error for the reasons outlined above and should be revoked.
The respondent ‘s submissions include the following:
(a) grounds 1 and 4 – the Medical Assessor provided sufficient reasons for the application of a deduction as required by s 323. It is clear the Medical Assessor felt the extent of the appellant’s pre-existing degenerative changes in his lumbar spine on the history of a prior injury and sufficient pathology (recorded as lumbar spondylosis and bilateral facet arthrosis) warranted a deduction.
(b) Consideration of a pre-existing condition, even if it was to have been completely asymptomatic at the time of injury as submitted by the appellant, is relevant to an assessment of impairment and is not to be disregarded only due to a reported absence of symptoms at the time of an injury.
(c) The Medical Assessor assessed the application of a deduction under s 323 properly and in accordance with the necessary requirements.
(d) Should the Medical Assessor have felt that it was too difficult or costly to determine the extent of the applicable deduction he would have noted same in his findings.
(e) The Medical Assessor’s application of a 50% deduction accorded with that which was applied by the respondent’s qualified doctor, Dr Robinson, in his report dated 9 September 2022. It was also supported by the more contemporaneous report of Dr Bodel dated 18 March 2004 and various imaging taken of the appellant’s lumbar spine.
(f) It was open to the Medical Assessor to come to the view that a one-tenth deduction was applicable under s 323 of the 1998 Act when assessing the lumbar spine. He had available all evidence contained within the ARD and Reply, as well as his clinical judgement based on his examination of the appellant.
(g) The Medical Assessor did provide sufficient reasons to follow his actual path of reasoning insofar as his application of a deduction under s 323 was concerned.
(h) The Medical Assessor’s findings on this issue do not contain a demonstrable error (or contain the application of incorrect criteria, if alleged).
(i) Ground 2 – in terms of the adequacy of reasons for disagreeing with the opinion of Dr Lee, see (f) to (h) above.
(j) The Medical Assessor considered the questions relevant to the impairment assessment, namely the appropriate history, DRE category and applicable deductions. The appellant did not identify any specific aspects of the report or impairment assessment of Dr Lee that it says was not properly considered or engaged with by the Medical Assessor.
(k) In accordance with paragraph 1.6a of the Guidelines, the task of the Medical Assessor was to assess the appellant as he presented on the day of assessment and to apply his own clinical judgements. The Medical Assessor was not bound to agree with the findings of Dr Lee as a minimum starting point for his own assessment or to specifically reference or engage with all documents before him.
(l) The Medical Assessor’s findings on this issue do not contain a demonstrable error (or contain the application of incorrect criteria, if alleged).
(m) Ground 3 – failure to disclose a path of reasoning for the determination of impairment – the Medical Assessor provided sufficient reasons for his assessment of DRE II at page 5 of the MAC. In providing his assessment it is clear the Medical Assessor felt that the appellant’s clinical history and examination findings were compatible with his specific injury, noting that he had shown dysmetria and erector spinae muscle spasm on examination. The Medical Assessor also noted the appellant had non verifiable radicular complaints but no radiculopathy. These findings fall squarely within the criteria for an assessment of DRE II of the lumbar spine under the AMA 5.
(n) While the Medical Assessor may not have specifically referenced each table or paragraph of the AMA 5 or Guidelines relied on in making his assessment, his findings were sufficient to establish his actual path of reasoning in coming to the assessment of DRE II of the lumbar spine. For an assessment of DRE III to have applied, as is submitted by the appellant, a finding of significant radiculopathy would have been required and was not recorded by the Medical Assessor on his examination.
(o) The Medical Assessor’s findings on this issue do not contain a demonstrable error (or contain the application of incorrect criteria, if alleged).
(p) The MAC should be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 the form of the words used in s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
Ground 1 – s 323 deduction
The appellant submits that the Medical Assessor erred in applying a 50% pursuant to s 323 deduction of the 1998 Act, in circumstances where the appellant made a full recovery from a prior injury in 2001.The appellant argues that the Medical Assessor had no reason to then doubt the appellant’s history that he had made a full recovery from the injury in 2001 the evidence before the Medical Assessor demonstrates that he was asymptomatic prior to the work injury on 25 March 2002.
The Medical Assessor in the MAC under “Details of any previous or subsequent accidents, injuries or condition” wrote:
“In 2001 he was working as a delivery driver pushing trolleys laden with laundry and he sustained back pain, which was managed conservatively and he was on restricted duties and gradually his back pain settled. At the time he was a truck driver for the Hilton Hotel moving laundry from the hotel to the laundry and then back to the Hilton Hotel.
In April 2005 while working as a delivery driver delivering gas type machinery, he aggravated his back and continued such work in August 2005.
He subsequently injured his back more recently while lifting luggage at Auckland Airport while travelling on March 7, 2023. He was reviewed at Auckland Hospital for acute on chronic back pain early in the morning of March 8, 2023. He was discharged late in the morning. This was an exacerbation of his long standing low back pain. That exacerbation has resolved back to his normal low back pain.”
The Medical Assessor under “Findings on Physical Examination” wrote:
“He was 179cm tall and weighed 74kg. He walked with a slow gait and had difficulty with toe and heel walking due to back pain and his squat test was associated with low back pain. His straight leg raise was 60 degrees bilaterally and was associated with low back pain and left buttock sciatica. His reflexes were present and symmetrical. There was no wasting of either lower extremity measuring 38cm in the thighs bilaterally, 10cm above the patella and the calves measured 34cm bilaterally, 10cm below the knee. His Babinski signs were negative and power was grade 5 out of 5 bilaterally. He did have altered sensation in the left sole of his foot and the lateral left leg.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm and pain on back extension which was decreased by one half. Lateral flexion to the left was decreased by one third and that to the right by one quarter. There was tenderness of the lower lumbosacral facet joints bilaterally and at the L4/5 level in the mid line. There was tenderness in his left groin but no apparent inguinal hernia. The range of motion of both hips was equal. He could take weight on both legs and his Trendelenberg sign was negative for the left hip and he could manage assisted toe standing on both feet, although this was associated with low back pain”.
Under “Summary of injuries and diagnoses”, the Medical Assessor wrote:
“He sustained a back strain injury while working for Bradshaws loading and unloading furniture on a background of having had a back strain injury while moving laundry for the Hilton Hotel, with that injury having settled. He has subsequently developed degenerative changes in his lower back with radicular complaint, initially on the right but now some radicular complaint on the left and bilateral facet arthralgia, again now more marked on the left. There is no radiculopathy present but he does have signs of lumbar back strain with dysmetria, erector spinae muscle spasm and radicular complaint in the left buttock. He reports sensory alteration in his lateral leg and the sole of his left foot.
consistency of presentation
He was consistent in presentation”.
In answer to the question “Is any proportion of loss of efficient use or impairment or whole person impairment, due toa previous injury, pre-existing condition or abnormality?” the Medical Assessor stated “Yes”. He indicated that the body part affected was “Lumbar spondylosis and facet arthrosis”.
Under “DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY” the Medical Assessor wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) One half as he has widespread degenerative changes in his lower lumbar spine
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Lumbar spondylosis and bilateral facet arthrosis”
In his comments regarding other medical opinions and findings submitted by the parties, the Medical Assessor referred to reports of Dr David Millons (9 March 2022), Dr Paul Robinson (9 September 2022), Dr James Bodel (18 March 2004) and a letter to Dr Garro from Dr Alexander Woo in November 22.
In his statement dated 2 February 2023, the appellant stated:
“4. In or around mid-2001, during the course of my employment with the Hilton Hotel, I sustained an injury to my lower back. After completion of treatment, which mainly consisted of physiotherapy, I made a full recovery and returned to work on full, unrestricted duties.
5. Acknowledging the above, at the time of the subject workplace injury, I considered myself to be healthy, fit and highly capable at handling the physical demands of my employment. Immediately prior to my injury, I do not recall experiencing pain or restrictions in my lower back. I was able to engage with activities of daily living without compromise and I seldom took time off work”.
In a report dated 13 July 2022, Dr Y. Kail Lee, consultant orthopaedic surgeon, wrote:
“Mr Tang’s x-ray and CT scan in 2002 showed moderate facet joint degeneration at L3/4, L4/5 and also at L5/S1. His injury however caused the disc prolapse which aggravated the facet joint degeneration. I believe that Mr Tang has sustained an aggravation, acceleration, exacerbation or deterioration of underlying facet joint degeneration. His symptoms persist and deteriorated. I believe this aggravation, acceleration, exacerbation or deterioration to be ongoing.
Mr Tang has a decrease in light touch sensation of the L5 distribution in the left leg. He has a weak knee jerk. His ankle jerk was absent when he was supine but returned when he kneeled on a chair. These findings are between DRE II and DRE III. According to the WorkCover Guides, if the finding is between two categories, the higher value is to be chosen.
Mr Tang’s injury fits the description of DRE III lumbar spine and the impairment is 10% WPI, AMA 5.
He relies on his partner to do all the housework and shopping. There is an additional 2% WPI for impairment of activities of daily living”.
Dr Dan G Milder, consultant neurologist, in a report dated 9 February 2004 noted that the appellant began to suffer in mid 2001 the sudden onset of low back pain, when he was required to push a trolley containing linen, weighing approximately 300Kg up a ramp into a truck. The pain did not pass to the lower limbs. He was placed on light duties. The pain resolved completely after two months. Dr Milder noted that the applicant then sustained an injury in March 2022 when he was carrying timber wardrobes. Dr Milder assessed the appellant as fitting DRE Category III resulting in an impairment of 12% WPI. He wrote: “The impairment is due in one tenth part to the incident in mid-2001 and in nine tenths part to the incident in March 2002.”
Dr James Bodel, consultant orthopaedic surgeon, in a report dated 18 March 2004 noted that the appellant reported a previous episode of injury in the year 2001 while working at the Hilton Hotel. He was off work for two months with back pain at that time. He slowly improved over time but it appears that he never completely recovered. Dr Bodel noted that he had seen X-rays of the lumbosacral spine dated 25 March 2002 showing longstanding degenerative disc disease with narrowing of the disc spaces particularly at L3/4 and L4/5. Dr Bodel noted that there may have been additional structural damage in the back but it was difficult to be certain without seeing the original X-rays. Dr Bodel understood that no CT scan was done at the time of the original injury. Dr Bodel expressed the opinion that at least half of the overall level of impairment was due to pre-existing pathology.
In a report dated 9 March 2022, Dr David Millons, consultant surgeon, made an assessment of permanent impairment in respect of an injury sustained by the appellant on 6 August 2012. Dr Millons noted that the appellant’s back problems dated back to 2001 when he appeared to have possibly aggravated some degenerative changes in his back when transporting laundry. He noted that the appellant was only off work for a few weeks and then returned to work but maintained ongoing symptoms. He noted that the appellant then had a further episode of back pain in 2002 while working for the respondent and this resulted in him being off work for a considerable time. Dr Millons noted that a MRI scan on 1 August 2011 suggested moderate degenerative change throughout the L2/3 -L5/S1 regions. Dr Millons did not make an assessment of impairment in respect of the injury in 2002 but appeared to express the view that all of the impairment he assessed in the lumbar spine resulted from prior injury.
In a report dated 9 September 2022, Dr Paul Robinson, consultant orthopaedic surgeon, noted that there were pre-existing factors prior to the incident in 2002 in that the appellant had an incident in 2001 with back pain and in the investigations performed in May 2022 there was disc bulging at several levels with an osteophyte also indication that there was a pre-existing condition. Dr Robinson wrote:
“It is difficult to assess his current impairment and related back to March 2002.
I would rely basically on Dr Bodel’s assessment and this was on 18 March re he assessed a DRE Lumbar Category II of 5% and 1% increase for ADL incapacity. He reduced this by 50% indicating that there was a 3% whole person impairment.”
The Medical Assessor accepts that injury in 2001 settled but made a deduction for widespread degenerative changes in his lower lumbar spine, namely, lumbar spondylosis and bilateral facet arthrosis. However, there were no scans performed before the subject injury on 25 March 2022 and the Medical Assessor describes the X-rays taken on 26 March 2022 showing moderate degenerative changes at L3/4 and L4/5 with some changes to the facet joints inferior to L3. Dr Bodel, who examined the appellant on behalf of the respondent. made a deduction of one half for pre-existing pathology. Dr Robinson, who later examined the appellant on behalf of the respondent, adopted the assessment by Dr Bodel. Dr Lee made no deduction for pre-existing condition or prior injury.
The evidence of the appellant is that immediately prior to the injury on 25 March 2022, he was able to engage with activities of daily living without compromise and seldom took time off work. The appellant did not recall experiencing pain or restrictions in my lower back.
The Appeal Panel considered that in circumstances where the appellant was asymptomatic before the injury on 25 March 2022 and performing heavy physical work, there was limited evidence as the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributes to that assessment.
The Appeal Panel concludes that the Medical Assessor made a demonstrable error in making a deduction of one half pursuant to s 323 of the 1998 Act where there was insufficient evidence as to the actual consequences of the pre-existing condition and the Medical Assessor did not adequately explain how the pre-existing degenerative changes contributed to the assessment.
Section 323 deduction – failure to disclose reasons for disagreement with the opinion of Dr Lee
The appellant submits that the Medical Assessor erred in failing to disclose his reasoning for disagreeing with the opinion of Dr Lee.
The Appeal Panel agrees with the appellant that the Medical Assessor made no reference to the report of Dr Lee dated 13 July 2022. This was the report upon which the appellant relied in the current proceedings.
The Medical Assessor did not explain why his assessment differs from the assessment of Dr Lee.
The Appeal Panel accepts the appellant’s submission that consistent with the decision of Brereton JA in Lederer v Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 [2022] NSWSC 322; 99 MVA 29, the Medical Assessor was required to engage with the opinion of Dr Lee. At [44] Brereton JA comments:
“I agree that the Assessor was not required to respond word by word to Dr Steele’s analysis. But he was required to consider, to show that he had considered, the question of whether pre-existing age-related degenerative illness was aggravated and/or rendered symptomatic by the accident.”
The Appeal Panel is satisfied that the failure by the Medical Assessor to engage with the report of Dr Lee and explain why his findings were different in relation to the degree of permanent impairment as well as the s 323 deduction, results in demonstrable error.
Ground 3 – failure to disclose the path of reasoning for determining degree of WPI
The appellant submits that the Medical Assessor failed to disclose his path of reasoning for determining degree of WPI and why the appellant was rated DRE II and not DRE III. The appellant argues that there is no engagement or explanation proffered by the Medical Assessor as to why the injury to the lumbar spine fits within the DRE II category rather than the DRE III.
The Medical Assessor notes in his findings on examination that the appellant had altered sensation in the left sole of his foot and the lateral left leg. Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“He has subsequently developed degenerative changes in his lower back with radicular complaint, initially on the right but now some radicular complaint on the left and bilateral facet arthralgia, again now more marked on the left. There is no radiculopathy present but he does have signs of lumbar back strain with dysmetria, erector spinae muscle spasm and radicular complaint in the left buttock. He reports sensory alteration in his lateral leg and the sole of his left foot”.
The Medical Assessor, despite finding that the appellant reported sensory alteration in his lateral left leg and the sole of his left foot, did not expand on this further or proceed to consider whether the appellant had two or more of the criteria set out in the Guidelines at 4.27 that are required to conclude that radiculopathy is present.
In view of the assessment by Dr Lee of DRE lumbar category III, the Appeal Panel considers that the Medical Assessor should have provided further details of his reasoning for rating the appellant as DRE II rather than DRE III. The failure to provide adequate reasons for determining degree of WPI and why the appellant was rated DRE II and not DRE III is a demonstrable error.
Ground 4 – failure to disclose path of reasoning for s 323 deduction
The appellant submits that the Medical Assessor failed to disclose his path of reasoning in relation to the determination of the s 323 deduction. The appellant argues that the Medical Assessor provided no explanation as to his determination of the s 323 deduction and did not consider the appellant’s evidence that his prior injury had settled and he was asymptomatic as at the time of the subject injury.
At page 6, the Medical Assessor determined the s 323 deduction as: “One half as he has widespread degenerative changes in his lower lumbar spine.” The Medical Assessor then stated that the previous injury, pre-existing condition or abnormality directly contributed to the assessment as a result of “lumbar spondylosis and bilateral facet arthrosis”.
As noted above the Medical Assessor appeared to accept that injury in 2001 had settled but made a deduction for widespread degenerative changes in his lower lumbar spine, namely, lumbar spondylosis and bilateral facet arthrosis. However, there were no scans performed before the subject injury on 25 March 2022 and the Medical Assessor described the X-rays taken on 26 March 2002 showing moderate degenerative changes at L3/4 and L4/5 with some changes to the facet joints inferior to L3. A one-half deduction pursuant to s 323 in circumstance where the appellant did not recall any problems in his lumbar spine Immediately prior to the subject injury and said that he was highly capable of handling the physical demands of his employment requires more detailed reasons than given.
The Appeal Panel is satisfied that the Medical Assessor failed to disclose in adequate detail his actual path of reasoning as to why he applies a s 323 deduction of one half. This constitutes a demonstrable error by the Medical Assessor.
In view of the error made by Medical Assessor in failing to provide further details of his reasoning for rating the appellant as DRE II rather than DRE III when he had found altered sensation in the left sole of his foot and the lateral left leg, the Appeal Panel considers that it is necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Medical Assessor Pillemer re-examined the appellant on 24 June 2024. Medical Assessor Home provided the following report:
“1. The workers medical history, where it differs from previous records
Mr Tang attended with a Mandarin interpreter today, and I read him his history that he gave this to Dr D Dixon (MA) on 14 February 2023.
The history is slightly confused but it seems that there was an injury to his low back in 2001 while working as a delivery driver for the Hilton Hotel and after this injury it seems he was off for four weeks and then the symptoms settled down and he started working for Bradshaw’s Furniture doing furniture deliveries. However, he sustained an injury to his lumbar spine on 25 March 2002. He was unloading a wardrobe from the truck and this significantly aggravated his back pain.
I note that after this injury he was off work till 2006 when he started working for the RTA doing maintenance services as a school crossing supervisor which he did from 2006 to 2012. He has not worked since then.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Tang complains of constant pain in his low back radiating down his left lower limb and into his left foot particularly into his left big toe area. Symptoms are described as being constantly present range between 5-8/10 and aggravated by sitting or standing for long or bending and lifting and he does get some relief by taking his tablets and by simply resting.
3. Findings on clinical examination
Mr Tang was an adult male who undresses and dresses with considerable difficulty with an antalgic gait on the left side and was unable to walk on heels and toes.
He showed significant restriction of back movement only getting fingertips as far as his knees in flexion, other movements equally restricted.
Straight leg raising on the right side was present to 80°, but on the left side limited to only 40°, and this was in fact felt to be due to significant pain in relation to his left groin region and he also has very significant restriction of left hip movement indicative of advanced osteoarthritic change of his left hip.
Knee reflexes are present and equal and his left ankle reflex is depressed compared to the right side.
Mr Tang has hypoaesthesia to pinprick over the lateral aspect and sole of his left foot in an S1 distribution and there is also a weakness with eversion of his left foot. There is 1 cm wasting of his left calf compared to the right side.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Tang today has not had any further investigations carried out since his Medical Assessment Certificate.
I note from the various reports forwarded to me that an MRI of his lumbar spine in February 2012 showed disc bulging, no evidence of any neurological involvement. The CT scan of his lumbar spine on 24 November 2023 suggested moderate canal stenosis as well as bilateral facet arthropathy at the L5/S1 level.”
The Appeal Panel adopts the report and findings of Medical Assessor Pillemer. The Appeal Panel notes that on examination by Medical Assessor Pillemer the appellant has evidence of S1 nerve root involvement on the left side as evidenced by:
(a) decreased left ankle reflex;
(b) sensory loss in the S1 distribution;
(c) weakness with eversion of the left foot and ankle, and
(d) restricted straight leg raising on the left side.
The Appeal Panel agrees that the appellant should be assessed as having a DRE Category III impairment rating for the lumbar spine and a 10% WPI baseline applies with a further 2% WPI rating for interference activities of daily living. This gives a total of 12% WPI.
In terms of a deduction pursuant to s 323 of the 1998 Act, the Appeal Panel agrees that the appellant has a pre-existing condition, namely, lumbar spondylosis and bilateral facet arthrosis. The Appeal Panel is satisfied that this pre-existing condition contributes to the impairment assessed. However, the Appeal Panel concludes that the extent of the required deduction is difficult to assess because of the lack of medical information concerning the appellant’s pre-existing condition before his injury on 25 March 2002 and considers that this pre-existing condition a one tenth deduction is appropriate and not at odds with the evidence.
The Appeal Panel therefore assesses 12% WPI of the lumbar spine and applies a one-tenth deduction, which results in an assessment of 10.8% which rounds up to 11% WPI.
For these reasons, the Appeal Panel determines that the MAC issued on 16 February 2024 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: | W9296/23 |
Applicant: | Zi Guang Tang |
Respondent: | Bandsaw Furniture Manufacturing 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 Drew Dixon 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) |
| 1. Lumbar spine | 25/3/2002 | Table 4.1 Page 26 | Table 15-3 Page 384 | 12 | One tenth | 11 |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
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