Thomson v WA & Je Hatton Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Thomson v WA & JE Hatton Pty Limited [2022] NSWPICMP 324
APPELLANT:	Ian Trevor Thomson
RESPONDENT:	WA & JE Hatton Pty Ltd
APPEAL PANEL:	Member Paul Sweeney Medical Assessor Margaret Gibson Medical Assessor James Bodel
DATE OF DECISION:	15 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Appeal by worker against deductions pursuant to section 323 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) including 50% reduction for lumbar spine impairment; worker argued that the Medical Assessor (MA) had considered a frank injury and not the disease injury referred for assessment; section 15 of the Workers Compensation Act 1987 (1987 Act) precluded a section 323 deduction of the 1998 Act and that if one was made it should have been pursuant to s323(2) of the 1998 Act; Held — MA did not misconstrue the injury referred; it was open to the MA to make a deduction as the case was pleaded and put by the appellant as one to which section 16 of the 1987 Act applied; Vannini vWorldwide Demolitions Pty Ltd considered; the MA had given no logical reasons for making a deduction of 50% in respect of lumbar spine; deductible proportion reassessed at 10%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 April 2022, Ian Trevor Thomson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Long, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 5 April 2022.
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,
· 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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 has a long history of back pain. More recently, he has experienced shoulder pain. He attributes both to his employment as a truck driver. By his evidentiary statement, the appellant says that he first experienced back pain in 1998, shortly after he commenced driving trucks. He first saw an orthopaedic surgeon for treatment, Dr Hillier, on
19 December 2000. He was treated with a facet joint injection. He states:
“The pain in my back was manageable by over the counter pain medications. It did not affect my continuation to work as a long haul truck driver.”
The appellant says that between 2005 and 2010, he was employed by Border Express Transport. He drove articulated vehicles known as B-doubles which had “thick and heavy” curtains on each side which were operated by rollers. He continues:
“The curtains were difficult to roll and unroll especially when picking up or delivering big reels of paper. There have been many occasions in which the curtains when pulling them back or pulling them forward to be ready for the journey would stop dead and I recall on occasions the curtains would fall off.”
The appellant says that with repetitive twisting, bending and manipulation of the curtains, his back pain worsened from 2007. In the context of manipulating the curtains and lifting gates, his shoulders also became painful in 2008 and he saw Dr Adrian Kay, a general practitioner.
The appellant says he worked for Ron Finemore Transport briefly in 2011 driving a fuel tanker. However, he returned to Border Express for a year in 2011 to 2012. Thereafter, in 2012 he was employed by Toll Liquids at Wagga Wagga carting fuel and tallow, but by this time he experienced persistent pain in his back and pain in both his shoulders.
From January 2015 to early 2017, he was employed by Shobbrook, who contracted to Border Express, performing interstate driving work from Albury to Melbourne, Sydney or Newcastle. The business was sold to the respondent in these proceedings in about 2017. He continues:
“Once again the loading and unloading of the freight such as the reels of paper were undertaken by the warehouse or the factories. I continued to climb onto the trailers to check the loads were properly secured before commencing the journey.
I would manually roll up and unroll the curtains and they were heavy. I would pull, push and manipulate the curtains not less than four times per day. I phoned Wayne Patten and complained about the state of the trailers/curtains.”
The appellant states continuous pulling of the truck curtains aggravated the pain in his back and shoulders. He says that in 2017 his back pain was such that he could not sleep. He was again referred to Dr Hillier, the orthopaedic surgeon, on 7 February 2018. After conservative treatment failed, he was referred to Dr Paul Verrills in Melbourne for pain management. When his symptoms worsened, he was referred to Dr Goldschlager, a neurosurgeon in Melbourne, who performed surgery on his low back on 12 September 2019.
The appellant says that while his pain has improved following surgery, he has constant back pain which interferes with most aspects of his life. He states that he has loss of strength in both his shoulders and is only able to carry light weights.
On 24 February 2021, Dr Giblin provided a medico-legal report at the request of the appellant’s solicitor. He took a history of the appellant hurting his back at work on
29 November 2017 after which he only took “a few days off work”. In December 2017, however, he experienced increasing pain in his back and ceased work. Earlier, in 2015,he had developed bilateral shoulder pain. Dr Giblin recorded that:
“He had troubles with stiff curtains and heavy gaits and he could not throw the strap over the load.”
Dr Giblin also recorded a history of recurrent low back pain from 2000 from which the appellant made a substantial recovery. He expressed the opinion that the appellant had suffered a soft tissue injury to his low back causally related to the injury on
29 November 2017 and a soft tissue injury to both his shoulders “reasonably causally related to the nature and conditions of his work environment as being the main contributing factor to the injury”.
Dr Giblin assessed the appellant as suffering 39% whole person impairment (WPI) as a result of injuries to his lumbar spine and both upper extremities. He made no deduction pursuant to s 323 for previous injury or pre-existing condition. In respect of the appellant’s shoulders, he stated that a deduction was inappropriate as the “disease injury was only caused in terms of a main significant contribution by his work environment”.
By a supplementary report of 24 August 2021, Dr Giblin expressed the opinion that the nature of the appellant’s employment was the main contributing factor to “the acceleration of the disease of his back and shoulders”. He made a deduction of one-tenth pursuant to s 323 in respect of the low back injury “to acknowledge the history of 2000”.
Dr Frank Machart, an orthopaedic surgeon, provided a report to the respondent’s solicitor on 29 June 2021. He noted that the records of the appellant’s general practitioner contained notations of complaints and investigations which demonstrated the presence of multilateral spinal degenerative changes and stenosis well prior to the injury on 25 November 2017. He expressed the opinion that spinal canal stenosis:
“Would have been evident in absence of the DOI (date of injury). The DOI, was less significant in the context of the severity of the pathology.”
Dr Machart assessed 22% WPI in respect of the appellant’s lumbar spine and 2% in respect of each upper extremity (shoulder). In respect of the lumbar spine, he made a deduction of two-thirds to reflect the appellant’s pre-existing spinal canal stenosis. In respect of the shoulder, he made no deduction.
By a supplementary report dated 22 November 2021, Dr Machart elaborated on his opinion that a substantial deduction should be made pursuant to s 323 to reflect a pre-existing condition of the appellant’s spine. He said this:
“It appears that the symptoms commenced well before employment with the Insured. It would be difficult to argue that the employment between early 2017 and December 2017 was of much significance, as nature and conditions of employment when the symptoms were already substantial prior to that employment.”
Dr Machart expressed the opinion that there was no evidence that the appellant’s employment with the respondent was the main contributing factor to the disease process in either his lumbar spine or his shoulders.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injuries to his lumbar spine and both upper extremities (shoulders). Notwithstanding Dr Machart’s opinion, the respondent concedes that the appellant suffered injury to these body parts in his employment. As the remaining issue between the parties was a medical dispute as that term is used in s 319 of the 1988 Act, a delegate of the President referred the dispute to a MA for assessment. It is from the assessment of Dr Long that the appellant brings this appeal.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the worker to undergo a further medical examination.
The panel noted that the appellant sought a further medical examination by a medical practitioner who was a member of the panel. As the appellant did not challenge the primary findings of the MA on his examination and as the dispute between the parties was confined to whether there should be a deduction for a pre-existing condition, the panel concluded there was no obvious benefit in re-examining the appellant.
The evidence before the panel included the appellant’s statement, the records of his general practitioner, treating specialists, and the histories obtained by Dr Giblin and Dr Machart. It was, therefore, improbable that a further consultation would further elucidate the issue in dispute. More so as the MA recorded that the appellant’s recall of the onset of his condition, which was many years ago was imperfect.

EVIDENCE

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

Medical Assessment Certificate

Those parts of the medical certificate which are relevant to the appeal are set out in the panel’s findings and reasons below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, however, the panel has taken them into account in reaching its conclusions. In summary, the appellant submits that the MA made demonstrable errors in assessing the deductions to be made for a pre-existing condition pursuant to s 323.
The appellant argued that the MA had assessed the matter on the:
“The mistaken view that the work injury was one that occurred on 26 November 2017 as a result of a single incident when unloading a truck.”
The appellant noted that the pleaded injury did not limit the claim to one day. Rather it was “one caused by the nature and conditions of employment including on 26/11/2017”. The appellant submitted that he had consistently performed arduous work including “continually pulling and manipulating heavy truck curtains” throughout his employment as a long haul truck driver. He further submitted that the combined effect of the Application to Resolve a Dispute (the Application) and the Consent Orders is that the injury referred for assessment was one “to which section 15 of the 1987 Act applies”.
In order to make a deduction pursuant to s 323, it was necessary to identify a condition or injury that predated the first employment to which the injury was due in accordance with the reasoning in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 [51]-[58] (Cullen). The appellant submitted there was no evidence of this fact, as he had commenced to drive trucks at age 20 and largely worked as a truck driver for the remainder of his working life until it was curtailed by his injury. The Assessor had not approached the matter on this basis. Rather, he considered “whether there was any condition that predated 26 November 2017”.
In addressing the contemporaneous clinical evidence, the appellant argued that he first experienced back pain in 1998 by which time he would have suffered 16 years of insult to his back in the course of his various employments.
The appellant alleged the MA made the same error in respect of his shoulders. They were also injuries to which s 15 of the 1987 Act applied. The correct question was whether there was a condition that predated 1982 “when the Appellant started working as a truck driver”. The symptoms the appellant experienced in 2008 were “merely an early manifestation of the subject injury”.
In the alternative, the appellant submitted that if the panel accepted the presence of a pre-existing condition there should have been a deduction of one-tenth. He continued:
“By comparison the effects of 25 years of truck driving any pre-existing condition could only make a minimal contribution to the impairment.”
By its submissions the respondent conceded that the nature of the appellant’s work aggravated a disease process in the back and the shoulders. However, it took issue with the appellant’s argument that before a deduction could be made pursuant to s 323, it had to be established that the condition existed before the commencement of truck driving work in 1982. It submitted that the deeming provisions of s 16 have “no relevance other than for the purposes of providing a mechanism for fixing a deemed date of injury”. In this respect, it relied on the reasoning of Simpson AJ at [67] in Woolstar Pty Ltd v Lando [2002] NSWSC 241 at [70] (Woolstar).
The respondent continued thus:
“The Respondent submits that whether the starting point is taken as a date earlier in 2017, when the Appellant commenced employment with the Respondent, or 26 November 2017, it was open to the Member (presumably MA) to find that the conditions were pre-existing and to make s 323 deductions as found.” (Panel’s italics)
The respondent submitted that no demonstrable error had been established by the appellant and the MAC should be confirmed.

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 Siddik v WorkCover Authority of NSW [2008] NSWCA 116. 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. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak [2013] HCA 43 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
In considering an appeal from a finding by a MA that there should be a deduction for a prior injury or previous condition pursuant to s 323 of the 1998 Act, a Medical Appeal Panel (MAP) must be careful not substitute its own opinion for that of the MA. It is necessary for the appellant to prove that the MA has made a demonstrable error or applied incorrect criteria in reaching a conclusion that there should be a deduction or the extent of the deduction. In the latter case, it may be difficult for an appellant to establish error. In Vannini vWorldwide Demolitions Pty Ltd [2018] NSWCA 324 (17 December 2018) (Vannini), Gleeson JA, who delivered the judgment of the Court of Appeal said this at [90]-[92]:
“90. An Appeal Panel performing the function of administrative review by way of a rehearing is confronted with similar issues when correcting error, particularly when the ground of appeal is demonstrable error contained in the certificate of the medical specialist. It is not necessary to consider how the reasoning of the approved medical specialist may be shown to wrong in every respect. In this case, the Panel was considering the reasoning of the medical specialist on the question of causation arising under s 323. The relevant issue was whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality? If so, what was that proportion?
91. The first question involved an assessment by the Panel, substantially of fact by reference to the evidence, although in part informed by the exercise of a clinical judgment. Such an assessment may be characterised as an evaluative judgment or conclusion based on findings of fact. Nonetheless, the legal criterion applied to reach that conclusion on causation demands a unique outcome, rather than tolerates a range of outcomes. Accordingly the reasoning and finding of the medical specialist attracts the correctness and error standard of review by a Panel[66].
92. The position may be different in relation to the second question. A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the “proportion” of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive.”

In his MAC, the MA noted that the date of injury was “26 November 2017 – deemed”. In taking his history he also noted that the appellant had “poor recall for events in the past” and that it was necessary to review his general practitioner’s treatment records. Relevantly, those records commenced on 1 December 2000 when a general practitioner recorded that the appellant had experienced two years of lumbosacral back pain and referred pain in his legs.
Against that background, the MA summarised the appellant’s injuries as follows:
“It is probable that Mr Ian Thomson who is now 59 years of age sustained an aggravation of well-documented pre-existing lumbar spinal degenerative change and spinal stenosis at work on or about 26 November 2017. It is probable that the naturally occurring degenerative changes of his lumbar spine were aggravated by the nature and conditions of his work as a truck driver.”
The MA continued:
“Reviewing his medical history, he had been troubled with chronic low back pain since 2000 and occasionally this included radicular complaints. Imaging studies revealed some protrusion of the L4/5 intravertebral disc.
In respect of shoulder pain the MA stated that the records show pain in the right shoulder where a right supraspinatus tendon impingement on 29 December 2008 and he had “ongoing symptoms in the right shoulder with evidence of rotator cuff tendinosis, tears and probable subacromial bursitis”.
Until 26 October 2018, when undergoing an injection with imaging control (L4 injections) that he developed pain in the left shoulder (when asked to elevate his arm above shoulder height) and since then he has had ongoing pain and restriction of movement in the left shoulder. He claims this as a consequential injury secondary to his accepted lumbar back injury.
On examination he had seeming symmetrical restriction of movements of his right and left shoulders. There was no evidence that he had sustained any shoulder injury as a result of any work injury on 26 November 2017. It is accepted that the nature and conditions of his work would have been responsible for the original shoulder symptoms recorded in 2008 and thereafter. There was no other record or any injury to the left shoulder prior to 26 November 2017.”
In dealing with the application of s 323, the MA stated:
“The worker has a long consistent history of lumbar back pain extending from at least 2000. Occasionally with non-verifiable radiculopathy. With this long history; and severe pain recorded by his general practitioner on 21 November 2017 five days before the back injury ‘back spasm. Targin prescribed.’ With advice from the doctor not to work, a one-tenth deduction is insufficient. A one-half reduction based upon pre-existing degenerative changes in lumbar spine; spinal canal stenosis and episodes of non-verifiable radicular symptoms is appropriate.”
In respect of the question of a deduction in respect of the right and left upper extremities (shoulder), the MA stated:
“the restriction of movement right and left shoulders, apart from rotator cuff pathology, is now associated with capsulitis and impairment based on restriction of movement is appropriate. I agree with Dr Machart that the shoulder injuries did not occur at work on 26 November 2017 but are the result of some documented work injuries throughout his employment as a truck driver. I note Dr Machart uses a date of injury 29 November 2017. However this would be covered by the term ‘deemed date’ as would, it seems the injury to the worker’s shoulders in this case.”
The MA continued:
“Based on his history since 2008 of ongoing symptoms and disability related to the right shoulder a deduction of ¼ is valid. Similarly a deduction for the left shoulder based on the history of symptoms in the left shoulder prior to 26 November 2017 as noted in the worker’s statement. A one-tenth deduction applies as the documentation of prior symptoms of left shoulder are few although mentioned by the worker in his statement.”
It is quite evident from the above quotations that the MA did not approach the matter on the basis that he was required to assess a single incident when unloading a truck on
26 November 2017 as the appellant argues. On the contrary, he opined that it was probable that “ the naturally occurring degenerative changes in the appellant’s lumbar spine were aggravated by the nature and conditions of his work”. Similarly, he accepted that the nature and conditions of the appellant’s work was responsible for the “original shoulder symptoms recorded in 2008 and thereafter”. Again, in discussing the medical evidence, the MA expressed his agreement with Dr Machart that the shoulder injuries “did not occur at work on 26 November 2017”. However, he accepted that they were as a result of “documented work injuries” throughout the appellant’s employment as a truck driver.
Plainly, the MA was aware that he was required to assess a “deemed” injury i.e. one to which the deeming provisions in ss 15 and 16 of the 1987 Act apply. He expressly referred to the term in the body of this report when differentiating his conclusion from that of
Dr Machart. Equally, the MA was aware that he was required to assess injury caused or materially aggravated by the nature of the appellant’s employment over the years as a truck driver. He referred to this on more than one occasion. In these circumstances, the appellant has not established that the MA has misconstrued or misunderstood the nature of the injuries referred for assessment.
The appellant next submits that the combined effect of the Application and the Consent Orders is that the injury referred for assessment was one to which “section 15 of the 1987 Act applies”. If that was correct, it would be an error to make a deduction pursuant to s 323. Sections 15 of the 1987 Act, in so far it is relevant, is as follows:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker's death or incapacity, or
(ii)(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(iii)(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
Section 16, in so far as it is relevant, is as follows:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
The panel accepts that if the injury referred was one to which s 15 applied it would be difficult to justify a deduction. Section 15 picks up injuries which are contracted in the course of the employment and makes liable the last employer who employed the worker in employment to the nature of which the disease was due. As the disease is contracted in the employment, it is difficult to see from a practical perspective how a deduction can be made for a pre-existing condition or prior injury.
But it is not apparent that the matter was referred for assessment on the basis of a disease to which s 15 applies as the appellant contends. There is nothing in the Referral to suggest this. More importantly, in view of the decision in Skates v Hills industries Ltd [2021] NSW CA 142 (14 July 2021), the Application describes the appellants injury as the “Aggravation, acceleration or exacerbation of disease”, which appears a clear reference to s 16 and the medical evidence is replete with references to aggravation or acceleration of a disease.
Dr Giblin, the appellant’s qualified doctor, speaks of the work causing an “acceleration” of a disease in his back and shoulders and of work being the main contributing factor to the aggravation or acceleration of the disease. Patently, Dr Machart also believed that the appellant was suffering from a disease process.
Thus, it was undoubtedly open to the MA to treat the appellant’s injury as the aggravation of a disease within s 4(b)(II) of the 1987 Act and one to which s 16 applied. His approach is perfectly consistent with the pleadings and much of the evidence. The appellant’s contention that is s 15 of the 1987 Act applies is not made out. In the circumstances, it is doubtful whether the appellant’s submission that it must be proven that the pre-existing condition predated the commencement of his employment as a truck driver has any force. The question of whether a constitutional condition was present prior to the worker suffering injury is largely a matter of medical opinion.
If the injury is found to consist in the aggravation etc of a disease within s 16, it assumes that the presence of a pre-existing condition and there is scope for a deduction to be made pursuant to s 323 of the 1987 Act. In Moran v Thomson Adsett &Partners Pty Ltd[1996] NSWCC 29; (1996) 13 NSWCCR 484 (17 September 1996) Neilson J, in the former Compensation Court of NSW said this:
“I find it difficult as a matter of logic to accept that, where the only diagnosis is of exacerbation or aggravation of a pre-existing conditionsuch as degeneration of cervical spine, that no part of the impairment of the whole of the neck can be laid at the door of the underlying condition.”
It is true that it is not open to a MA or MAP to merely identify a constitutional condition and automatically assume that it was a pre-existing condition. That was the error found in Woodbrae Holdings Pty Ltd [2015] NSWSC 146 (28 September 2015) (Cullen), Beech-Jones J in the Supreme Court of NSW set aside determinations by an MA and a MAP that a substantial deduction should be made pursuant to s 323 in respect of an osteoarthritic condition of a worker’s hips. At paragraph 57, the Judge said this:
“Overall, the approach of the MAP was to treat a pre-existing condition as a condition that existed outside the course of employment whereas in this case it had to be a condition that existed prior to Mr Cullen’s employment. As noted, Mr Blount repeatedly asserted that there was evidence to support such a finding but that contention travels nowhere as the MAP did not make such a finding. Instead the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a “constitutional pathology” then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time).” (Panels italics)
But it cannot be suggested that the MA made the same error in this case where the matter was pleaded and particularised as the aggravation of a disease and, at least in respect of the back, both qualified doctors had accepted the need for a deduction to be made.
The appellant submitted, in the alternative, that in the circumstances highlighted in its submissions the quantum of the deduction suggested error. If there was a pre-existing condition, the deduction should have been made pursuant to s 323 (2) of the 1998 Act. As the reasoning in Vannini demonstrates the assessment of the quantum of a deduction pursuant to s 323 largely involves matters of degree and impression which make proof of error exceedingly difficult. Nonetheless, in this case the panel is of the opinion that there is error in the manner in which the MA has approached the task of ascertaining the deductible proportion in respect of the appellant’s lumbar spine.
To reiterate, the MA’s reasoning for making a deduction pursuant to s 323 (1) was:
“The worker has a long consistent history of lumbar back pain extending from at least 2000. Occasionally with non-verifiable radiculopathy. With this long history; and severe pain recorded by his general practitioner on 21 November 2017 five days before the back injury ‘back spasm. Targin prescribed.’ With advice from the doctor not to work, a one-tenth deduction is insufficient.”
It is not evident why the documented history of back pain from 2000 or the appellant’s attendance on the general practitioner some five days before the deemed date of injury can be determinative of the deductible proportion. As the appellant submitted, he had been working for many years as a truck driver before the year 2000. The back pain he experienced on and after that time may have been a manifestation of a pre-existing condition or the effects of work. It may have also related to the effect of work as a truck driver on the pre-existing condition. The presence of symptoms recorded in the clinical notes following 2000 does not provide any reliable answer to the quantum of a deduction for a pre-existing condition. It says nothing about the cause of the condition or the relative causal potency of the pre-existing condition or the work. In concluding that these records were of overwhelming importance in ascertaining the deduction, the MA erred.
The MA gave no other reasons for making a substantial deduction pursuant to s 323. In those circumstances, the actual path of his reasoning is not apparent to the panel as required by the reasoning in Wingfoot. It is therefore necessary for the panel to reassess the appropriate deduction pursuant to s 323 in respect of the lumbar spine.
Different considerations apply in respect of the appellants shoulders. It was open to the MA to find that he had pre-existing rotator cuff problems which were aggravated by the work that he performed from 2005 where he worked for Border Express. It is not evident from his statement that the appellant drove B- doubles with heavy curtains before that time. The quantum of the deductible proportion found by the MA are smaller. In the circumstances, the panel concluded that the appellant had not proven demonstrable error.
In reassessing the deductible proportion in respect of the lumbar spine, it is necessary to bear in mind the extensive case law which has entangled the seemingly simple words of the section in a legal thicket. Some of the important cases were brought together by Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133 (21 August 2015) where he said at [81]:
“The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq) [2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40].”
Bearing in mind these principles, the panel concluded that it was difficult to assess the respective contributions of injury and pre-existing condition to the appellant’s impairment. While the panel accepts that there was a pre-existing constitutional disease, it is impossible on the evidence available to evaluate with any precision its contribution to the appellant’s lumbar impairment. As discussed above, the fact that the appellant saw medical practitioners in respect of his back after 2000 does not assist in this enquiry. While the pre-existing condition of the appellant’s back may have progressed irrespective of his work, it is equally, or more, plausible that if he had not performed the work of a truck driver over a very long period of time, he would not have experienced progressive back pain which brought him to surgery and a measurable WPI.
Dr Machart addressed what deduction should be made in respect of a frank injury on
26 November 2017. Accordingly, his opinion is of no real assistance in assessing the relative contributions of a pre-existing condition and the nature of the appellants work as truck driver over a very long period of time. Dr Giblin opined that the deductible proportion was 1/10. But his reasoning is also fallacious.
In the opinion of the medical practitioners on the panel the impossibility of reaching any sensible evaluation of the relative contributions of the pre-existing condition to the impairment leads to the conclusion that s 323 (2) should apply and the deduction should be 1/10^th.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W4411/21
Applicant:	Ian Trevor Thompson
Respondent:	WA & JE Hatton Pty Ltd

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

The Appeal Panel revokes the Medical Assessment Certificate of Dr Long 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 NSW workers compensation guidelines	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)
Right upper extremity (shoulder)	26.11.2017	Pages 1012	Page 439 Table 16-3	6%	1/4^th	5%
Left upper extremity (shoulder)	26.11.2017	Pages 10-12	Page 439 Table 16-3	7%	1/10^th	6%
Lumbar spine	26.11.2017	Pages 24-30	Page 384; Table 15-3	22%	1/10^th	20%
Total % WPI (the Combined Table values of all sub-totals)					29%

[2022] NSWPICMP 324

15 August 2022