The Westhaven Association v Heycox
[2022] NSWPICMP 37
•8 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | The Westhaven Association v Heycox [2022] NSWPICMP 37 |
| APPELLANT: | The Westhaven Association |
| RESPONDENT: | Kylie Ann Heycox |
| APPEAL PANEL: | Member Carolyn Rimmer Dr David Crocker Dr Drew Dixon |
| DATE OF DECISION: | 8 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker injured her lumbar spine; Medical Assessor assessed 25% whole person impairment of the lumbar spine and applied a one tenth deduction for prior injury and pre-existing condition; whether a one tenth deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was manifestly too low given the evidence in the matter; Held- by the Panel that a deduction of one tenth was open to the Approved Medical Specialist on the evidence; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 January 2022 The Westhaven Association (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 December 2021.
The respondent to the appeal is Kylie Ann Heycox (Ms Heycox).
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 MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued on1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Heycox sustained an injury to her lumbar spine on 27 February 2000 in the course of her employment as a personal care assistant when she was pushed by a patient and her back impacted against the corner of a bench.
The matter was referred to the MA, Dr Tim Anderson, on 24 June 2021 for assessment of person impairment of the lumbar spine and scarring (TEMSKI) in a threshold dispute as to the degree of permanent impairment.
The MA examined Ms Heycox on 22 November 2021 and assessed 25% WPI in respect of the lumbar spine. The MA made a deduction of one-tenth pursuant to s 323 of the 1998 Act. Therefore, the total WPI was assessed as 23% WPI as a result of the injury on 27 February 2000.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that Ms Heycox be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Heycox to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) The MAC contained demonstrable error with reference to the deduction under
s 323 0f the 1998 Act to account for pre-existing impairment.(b) There is no issue with the base assessment of 25% WPI having regard to the fusion surgery (20%), interference with ADLs (2%), continuing radiculopathy (3%) and surgery at a second level.
(c) In assessing the deduction under s 323 to account for pre-existing impairment the MA only made a deduction of 10%. That was inadequate when regard was had to the evidence as to pre-existing impairment, including:
(i)an episode of low back pain in 1991 which resulted in hospitalisation for several months (see Ms Heycox’s statement (paragraphs 16 - 18)), and
(ii)Ms Heycox injured her back in the course of her employment with the appellant in February 2000 at which time she was 26 years of age. There was radiological evidence of substantial degenerative changes which would be unusual in a 26-year-old (see the report of Orana Radiology dated 8 March 2000 and the report of an MRI scan prepared by Western Plains Radiology & Nuclear Medicine dated 24 March 2000).
(d) Under s 323 (2) if the extent of the deduction is too difficult or costly to determine, then it is assumed to be 10% unless the assumption is at odds with the available evidence. There was a body of evidence available to the MA such that determination of the extent of the deduction would not have been too difficult or costly.
(e) Settlement orders in Compensation Court proceedings commenced in 2001 reflected a 33% deduction for pre-existing impairment with reference to s 68A (as it then was) of the Workers Compensation Act 1987 (the 1987 Act). That was consistent with the approach adopted by Dr Bentivoglio in his report of 29 June 2001.
(f) Dr Berry assessed the deduction at 50% in his report of 29 June 2001.
(g) Dr Millons assessed the deduction at two-fifths in a report dated 4 March 2002.
(h) Associate Professor Miniter assessed the deduction at 25% in his report of 15 January 2020.
(i) Whilst the MA was not obliged to accept the assessment of any or all of the above mentioned doctors, they reflected a body of evidence available to the MA such that the task of assessing the deduction should have been neither too difficult nor costly.
(j) The evidence was available for the MA to assess the extent of the deduction, and a discount of only 10% was manifestly too low.
(k) The MAC dated 6 December 2021 be revoked and a new MAC issued.
Ms Heycox’s submissions include the following:
(a) When considering a deduction for previous injury or pre-existing condition or an abnormality, the MA needs to have regard to s 323 of the1998 Act and paragraph 1.6 of the Guidelines.
(b) Within the MAC under the heading “10. Reasons for Assessment” and paragraph c an explanation of my calculations the AMS noted the following regarding the Independent Medical Examiner (IME) reports obtained by the appellant: “…He also advises of on(sic) a deduction of one-quarter. Under the circumstances, bearing in mind that there has been subsequent surgery, I believe this is too great a deduction”.
(c) Ms Heycox had no issue with the assessment but disputed there was a demonstrable error with respect to pre-existing condition.
(d) The appellant’s submissions lack any gravity or force, essentially stating that the deduction should be far greater than one-tenth. The appellant submitted that there was a body of evidence available to the MA such that determination of the extent of the deduction would not have been too difficult or costly.
(e) The MA was under no obligation to agree with Dr Bentivoglio, Dr Millons,
A/Prof Miniter and/or the previous agreement in the Compensation Court. The MA was entitled to consider the matter afresh and make his own determination. The submission that other IMEs instructed by the insurer came to a greater deduction for pre-existing condition was irrelevant.(f) Ms Heycox disagreed that a deduction of greater than one-tenth should be made and considered the MAC should be confirmed.
(g) At paragraph 11 deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality, the MA noted the following:
“There has been a pre-existing pars interarticularis at the L5/S1 articulation. The most recent treatment was the spinal fusion. Unfortunately, she continues to have a lot of lower back pain and radiculopathy radiation down the left leg. There must reasonably be a deduction for the significant pre-existing condition, although up until that particular event, this condition had not caused any significant lower back issue. Therefore, I am persuaded that a deduction of one-tenth is most appropriate.”
(h) Ms Heycox referred to the decision of the Supreme Court matter of Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole) noting that what was necessary was for the MA to determine on the evidence available whether any proportion of the permanent impairment present after the second injury was due to the earlier injury. Cole was also authority for the proposition that the deduction must be assessed upon an evidentiary basis rather than upon speculation.
(i) In Cook v Rail Corporation New South Wales [2013] NSW WCC MA 43 the Appeal Panel at paragraph 23 quoted Matthew Hall Pty Limited v Smart [2000] NSW CA 284:
“... the language of pre-disposition and vulnerability does not form the basis of a Section 323 deduction. When making a Section 323 deduction it is necessary to distinguish between features that contributed to the injury and features that contributed to the impairment. Matters which only contribute to the occurrence and extent of the injury do not form basis of a Section 323 deduction.”
(j) Ryder v Sundance Bakehouse [2015] NSW SC 526 is authority for the approach required by an MA when considering s 323 and was quoted in New South Wales Fire and Rescue v Fabri [2016] NSW WCC MA 71 where at paragraph 34 the Appeal Panel noted the following:
“What a Section 323 requires is an enquiry into whether there are other causes (previous injury, or a pre-existing abnormality) of an impairment caused by a work injury. The proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from that work injury... to put it another way the Panel must be satisfied that but for the pre-existing abnormality the degree of impairment resulting from that work injury would not have been as great.”
(k) Fire and Rescue New South Wales v Clinen [2013] NSW SC 629 (Clinen) was quoted by the Appeal Panel in Langley v Woolworths Limited [2015] NSW WCC M1-006552/14 at [27]:
“As Schmidt J., pointed out in Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before Section 323 is engaged.”
(l) This has occurred in this case. The MA was required to determine the degree of impairment for the injury on 27 February 2000 (which he did) and then make a deduction with respect to any impairment that has contributed to that injury. The MA did so. The MA considered the evidence. The MA considered the pre-existing parts interarticularis defect at the L5/S1 junction. He weighed up the pre-existing condition and noting the limited impact it had on her life prior to the accident and concluded that a one tenth deduction was appropriate in the circumstances. Noting the prior injury did not impact her ability to work, it is submitted that a one-tenth deduction was appropriate.
(m) Taking into account the recovery from the previous incident and the limited symptoms Ms Heycox suffered from following the previous incident, a deduction of one-tenth was appropriate in the circumstances.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the delegate has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
Under “History relating to the injury”, the MA wrote:
“On 27/02/00, Ms Heycox was pushed by an agitated patient. This resulted in an impact injury against the corner of the bench with her lower back. It was identified earlier on that she had a pars inter-articularis defect at the L5/S1 articulation. She had quite severe lower back pain with radiation down both legs. The left side was more affected than the right.
Her clinical management remained conservative for many years. Eventually, in
November 2018, under the care of Specialist Neuro-surgeon, Dr Mitchell Hansen a
surgical procedure was undertaken consisting of a fusion from L4, across L5 and inserting at S1. This gave her improvement although she has continued to have quite severe lower back pain and still has radiculopathy radiation down the left leg.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Ms Heycox sustain [sic] an injury to her lower back in February 2000. This resulted from an altercation with a disturbed patient at the facility where she worked. She was pushed against a bench which impacted against her lower back. Ever since then she has had severe lower back pain with radiation down both legs. The left side has always been more affected.
The condition was managed conservatively, which included a trial of a spinal cord
stimulator. The ultimate clinical management was a spinal fusion from L4, across L5
into S1. This gave her improvement, although she continues to have lower back dysfunction with continuing radiculopathy down the left leg”.
Under “Reasons for Assessment”, at 10(c)) the MA wrote:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
Although previously mentioned, attention is further directed to the report of 15/01/20 by Specialist Orthopaedic Surgeon, A/Prof Miniter. He has advised that Ms Heycox has failed back surgery and has a chronic pain condition. A/Prof Miniter did not make an allowance for the activities of daily living, resulting in a whole person impairment of 22%. With great respect, I do believe that this should have been included. He also advises on a deduction of one-quarter. Under the circumstances, bearing in mind that there has been subsequent surgery, I believe this is too great a deduction.”
At Pt 11 of the MAC under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” the MA wrote:
“There has been a pre-existing pars interarticularis at the L5/S1 articulation. The most recent treatment was the spinal fusion. Unfortunately, she continues to have a lot of lower back pain and radiculopathy radiation down the left leg. There must reasonably be a deduction for the significant pre-existing condition, although up until that particular event, this condition had not caused any significant lower back issue. Therefore, I am persuaded that a deduction of one-tenth is most appropriate.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Section 323 deduction
The Guidelines at Guideline 1.16 (a) under “Principles of assessment” provide:
“‘The proportion of permanent impairment due to any previous injury, pre-existing
condition or abnormality, if any, in accordance with the diagnostic and other objective criteria as outlined in these Guidelines.
…
C. In calculating the final level of impairment, the assessor needs to clarify the
degree of impairment that results from the compensable injury/condition. Any
deductions for pre-existing injuries/conditions are to be clearly identified in the
report and calculated…”
The Guidelines at Pt 2 under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case.”
In Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Campbell J refers to D'Aelo v Ambulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd(in liq) [2013] NSWSC 365, and to Cole. In Clinen Campbell J said, “As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice”. Campbell J also noted that it is “... necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case”.
To establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. The Assessor must point to the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributes to that assessment. In Vitaz v Westform (NSW) Pty Limited and Ors [2010] NSWSC 667, decided on 22 June 2010, Johnson J said at [48]:
“...it is insufficient to assume that the existence of a pre-existing injury or condition will always contribute to the impairment flowing from any subsequent injury: Cole v Wenaline Pty Limited at [30].”
Basten JA in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 referred to the approach adopted by the Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]- [32] and, more recently, by Schmidt J in Cole. His Honour said:
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
The Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality”.
Discussion
The appellant submitted that the MA in assessing the deduction under s 323 made a deduction of one-tenth which was inadequate when regard was had to the evidence as to pre-existing impairment. The appellant argued that there was “a body of evidence available to the MA such that determination of the extent of the deduction would not have been too difficult or costly”.
The Appeal Panel reviewed the evidence in this matter.
In her statement dated 6 April 2000, Ms Heycox wrote [at paragraphs 16-19]:
“I don’t know if the injury I’ve got to my lower back now is the same injury I got to my back ten years ago. I can’t tell myself from within myself because it is so long ago and I’ve no trouble from it since then. …
17. My first back injury wasn’t anything to do with work. It happened when I was trying to push a car out of a bog in our garden at home. They put me in hospital in Canberra for 3 months on a morphine drip. They said it was mainly muscular injury.
18. The doctors at the hospital at Canberra that time ten years ago told me that I also had congenital spondylothesis. That’s the only reason I knew anything about this thing, this condition.
19. I haven’t had any other back injuries or back problems at all.”
Ms Heycox stated that she had been employed by the appellant since 26 August 1999 as a residential support worker. She said that her work duties included assisting residents with daily needs such as preparing meals, dressing, cleaning showers and bathrooms, ironing, general home chores, taking residents to parks or to eat out, the washing of sheets and some spring cleaning.
Settlement orders in Compensation Court proceedings (Matter No 0055132/01) noted a 33% deduction for pre-existing impairment with reference to s 68A (as it then was) of the 1987 Act.
In a CT scan report from Orana Radiology dated 8 March 2000, Dr R Slack-Smith, radiologist, noted that there was a minor lower lumbar scoliosis concave to the right and minimal narrowing of the L4/5 disc space and a bilateral spondylolisthesis of L5 without significant listhesis.
In an MRI scan report from Western Plains Radiology & Nuclear Medicine dated 24 March 2000, Dr Hazan, radiologist, noted that there was disc desiccation at L4/5 and L5/S1, a small anterior slip of L5 on S1 measuring up to 4mm in maximal length with no distinct nerve root compression seen. Bilateral pars defects were noted on previous imaging at L5 and there was also degenerative arthritis within the underlying L5/S1 facet joints with evidence of hypertrophic change and some synovial prominence as well at those levels without any other significant abnormality.
Dr Bentivoglio, consultant orthopaedic surgeon, in a report dated 19 June 2001, assessed 24% permanent impairment of the back and deducted one third for pre-existing spondylolisthesis.
Dr Bentivoglio, in a report dated 21 June 2002, was of the opinion that Ms Heycox had aggravated pre-existing degenerative changes present in her low back region as a result of the injury on 27 February 2000 and also sustained some degree of discal damage at the L4/5 level of the spine. He made an assessment of 24% permanent impairment of the low back and deducted one quarter for pre-existing abnormality.
Dr Berry, consultant general surgeon, in his reports of 29 June 2001 noted that Ms Heycox had past back problems 10 years ago when she was pushing a car with her father and developed some back pain. He noted that she was admitted to Woden Valley Hospital where she was kept for three months being treated with traction and physiotherapy. Dr Berry noted that the condition settled and she had no trouble until the injury on 27 February 2000.
Dr Berry assessed Ms Heycox as having 30% permanent impairment of the back and 10% permanent loss of efficient use of the left leg at or above the knee and made a deduction at 50% for previous injury and pre-existing spondylosis.Dr C Oates, occupational physician, in a report dated 28 August 2001, noted that Ms Heycox had low back pain in 1991 after pushing a car and investigations showed spondylolisthesis and minor L4-5 disc prolapse. He reported that she was in hospital for two months on a morphine pump, had an epidural injection and the pain settled four to five months later through a graduated exercise program.
Dr J Matheson, consultant neurosurgeon, in his report dated 28 February 2002, noted that Ms Heycox had been hospitalised in Canberra in 1991 for back pain and spondylolisthesis but was not offered surgery. He noted that she said this was her only previous episode of back pain.
Dr David Millons, consultant surgeon, in a report dated 4 March 2002 noted that Ms Heycox had been a hairdresser in her formative years, then worked delivering catalogues for a year before commencing employment with the appellant. He reported that when she was 18 and living in Canberra, she had severe back and right leg pain that came on spontaneously and was in hospital for two months. She was treated with bed rest and pain management but discharged herself and came under the care of her general practitioner. He noted that she was off work for six months, and her condition improved and “came good” and she returned to hairdressing. Dr Millons noted that Ms Heycox was untroubled by her back until 27 February 2000. He considered that the problem at L5/S1 had settled within a few months.
Dr Millons assessed 25% permanent impairment of the back and made a deduction of two-fifths for the underlying constitutional condition.In the MAC dated 23 May 2019, Dr Greggory Burrow, AMS noted that Ms Heycox was injured at work on 27 February 2000. He noted that there were ongoing arguments and discussions among various surgeons including Dr Bentivoglio and Dr Kuru as to whether there was pre-existing spondylolisthesis lesion or there was a traumatic lesion as a result of the work incident or an aggravation of a traumatic isthmic spondylolytic lesion. He wrote:
“Dr Bentivoglio for example believing there was no significant structural injury as a result of the work incident and that she was suffering mechanical back pain, through to Dr Kuru who believes that she suffered a traumatic lesion to the spine by way of isthmic spondylolysis or an aggravation of pre-existent isthmic spondylolytic lesion.”
Associate Professor Miniter, consultant orthopaedic surgeon, in his report of 15 January 2020 made an assessment of 22% WPI of the lumbar spine and then applied a deduction of 25% which resulted in a total assessment of 15% WPI.
Dr Andrew Porteous, occupational physician, in a report dated 12 March 2020 reported a history of no medical conditions prior to the lumbar back pain in February 2020. He assessed 25% WPI of the lumbar spine and 1% WPI for scarring but made no deduction for pre-existing condition or abnormality stating that there was no evidence of significant pre-existing condition.
In the MAC dated 5 January 2021, Dr Tim Anderson, AMS, noted that there had been a pre-existing pars inter-articularis defect at the L5/S1 articulation. He considered that Ms Heycox had reached maximum medical improvement.
The appellant submitted that evidence was available for MA to assess the extent of the deduction, and a discount of only 10% was manifestly too low. The Appeal Panel noted that the medical reports available were all written after the injury on 27 February 2000. There were no medical reports, investigations or hospital records concerning the injury in 1991 and the admission to hospital in Canberra. The evidence from Ms Heycox, which was largely reflected in the histories taken by the various doctors she saw after the injury on 27 February 2000, was that she recovered after the injury in 1991 and had no further back pain until 27 February 2000, that is, she was asymptomatic until 27 February 2000.
While the Appeal Panel accepted and agreed with the MA that Ms Heycox had a prior injury and a pre-existing condition in the lumbar spine, the question to be addressed was whether this condition contributed to the impairment assessed by the MA and, if it did, what that contribution was. The Appeal Panel was satisfied that the pre-existing injuries or condition in the lumbar spine did contribute to the current level of impairment assessed by the MA.
The Appeal Panel was satisfied that the MA took into account the evidence filed in this matter when conducting his assessment even if he did not refer specifically to all of the medical reports noted above. The MA made a one-tenth deduction in respect of pre-existing injury to the lumbar spine. He did not actually state that a one-tenth deduction was made because the deduction was too difficult or costly to determine. The MA considered that the deduction made by A/Prof Miniter was too great a deduction because Ms Heycox had undergone surgery. The MA also noted that although Ms Heycox had a significant pre-existing condition, up until the injury on 27 February, the condition had not caused any significant low back issue. The Appeal Panel noted that Ms Heycox had been performing relatively heavy physical work for the appellant until the injury on 27 February 2000.
While a number of doctors, including A/Prof Miniter, made a larger deduction than one-tenth for prior injury and pre-existing condition, the Appeal Panel considered that it was open to the MA to reach the view that a one-tenth deduction should be made pursuant to s 323 in respect of the lumbar spine. The MA was not bound by the opinions of other doctors and provided adequate reasons for making the deduction of one-tenth. The Appeal Panel did not consider that a deduction of one-tenth was at odds with the evidence. The Appeal Panel was not persuaded that the MAC contained a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 2021 should be confirmed.
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