Tomazos (Deligiannis) v Insurance Australia Ltd
[2025] NSWPICMP 445
•24 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tomazos (Deligiannis) v Insurance Australia Ltd [2025] NSWPICMP 445 |
| APPELLANT: | Tomazos (Deligiannis) |
| RESPONDENT: | Insurance Australia Ltd |
| APPEAL PANEL | |
| MEMBER: | Jacqueiline Snell |
| MEDICAL ASSESSOR: | Dr Alan Home |
| MEDICAL ASSESSOR: | Dr James Bodel |
| DATE OF DECISION: | 24 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant alleged error in application of section 323 and failure to account for reduced capacity in daily activities in assessment of whole person impairment (WPI); section 323 was misapplied and 10% deduction should have been applied; no error in assessment of daily living impairment and failing to increase WPI; Held – MAC revoked; new certificate issued. |
WORKERS COMPENSATION DIVISION
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
Matter number: | M1-W4155/24 |
Appellant: | Mary-Anne Tomazos (Deligiannis) |
Respondent: | Insurance Australia Limited |
Date of decision: | 24 June 2025 |
Appeal Panel: | |
Member: | Jacqueline Snell |
Medical Assessor: | James Bodel |
Medical Assessor: | Alan Home |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 October 2024 Mary-Anne Tomazos (Deligiannis) (Ms Tomazos) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 September 2024.
Ms Tomazos relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
(a) the assessment was made on the basis of incorrect criteria, and
(b) 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 grounds 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
Ms Tomazos made a claim for permanent impairment compensation resulting from injury to her cervical spine, consequential condition in her gastrointestinal system and scarring/TEMSKI arising out of or in the course of her employment with Insurance Australia Limited (Insurance Australia), with date of injury of 7 February 2012. An Application to Resolve a Dispute was lodged with the Personal Injury Commission (Commission) and a Reply was lodged with the Commission in response. On 12 August 2024, the Commission referred Ms Tomazos’ claim to a Medical Assessor.
The Medical Assessor examined Ms Tomazos on 3 September 2024 and the MAC in which the Medical Assessor assessed Ms Tomazos as having sustained 19% whole person impairment (WPI) resulting from injury to her cervical spine, consequential condition in her gastrointestinal system and scarring TEMSKI was issued on 25 September 2024. The Medical Assessor assessed Ms Tomazos with 14% WPI resulting from injury to her cervical spine (following 3/10ths deduction under s 323 of the 1998 Act), 5% WPI resulting from consequential condition in her gastrointestinal system and 1% WPI resulting from scarring/TEMSKI.
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.
Neither Ms Tomazos nor Insurance Australia requested Ms Tomazos undergo a further medical examination and as a result of that preliminary review, the Appeal Panel determined it was not necessary for Ms Tomazos to undergo a further medical examination. While the Appeal Panel is of the view the Medical Assessor erred in his application of deduction to be made pursuant to s 323 of the 1998 Act, the Appeal Panel did not consider such error necessitated Ms Tomazos undergoing further medical examination, particularly in circumstances where neither Ms Tomazos nor Insurance Australia requested she undergo further medical examination.
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.
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 provided written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the Ms Tomazos submits:
(a) the Medical Assessor failed to correctly apply s 323 of the 1998 Act, in that the correct approach is to apply a 10% deduction, and
(b) the Medical Assessor failed to increase his assessment of WPI to account for impairment of Ms Tomazos’ compromised ability to perform her Activities of Daily Living (ADLs).
In reply, the Insurance Australia submits:
(a) the Medical Assessor had sufficiently taken into account both Ms Tomazos’ presentation on the day of assessment and the clinical history in reaching his conclusion as to the deduction to be applied under s 323 of the 1998 Act, and
(b) the Medical Assessor had increased his assessment of WPI by 2% WPI for ADLs.
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.
Review of the MAC
The Medical Assessor assessed Ms Tomazos on 3 September 2024. The Medical Assessor recorded the date of injury of 7 February 2012. The Medical Assessor provided a brief history of the injury Ms Tomazos sustained to her cervical spine in a motor vehicle accident occurring on her way home from work. The Medical Assessor described Ms Tomazos as coming under the specialist care of Dr McKechnie, neurosurgeon. The Medical Assessor noted Ms Tomazos came to surgical treatment in October 2012 in the nature of a foraminotomy at the C4/5/6 levels and further surgical treatment in December 2022 in the nature of foraminotomy at the C5/6/7 articulations. The Medical Assessor reported
Ms Tomazos said, “she did not feel that this gave her much improvement.” The Medical Assessor noted “the possibility of a cervical fusion was mentioned. Ms Tomazos is not very keen on this idea and so far, there has been no further planning for this.”The Medical Assessor relevantly reported Ms Tomazos had been involved in a motor vehicle accident in January 2008 in which she injured her cervical spine, which was managed conservatively. The Medical Assessor did not note Ms Tomazos had been involved in a motor vehicle accident in 2005, and the Appeal Panel notes that in her statement
Ms Tomazos did not report injury to her cervical spine in this particular motor vehicle accident.Relevant to his assessment of permanent impairment sustained by Ms Tomazos resulting from the injury she sustained to her cervical spine on 7 February 2012, in response to specific questioning as to whether any proportion of WPI is due a previous injury, the Medical Assessor said “yes” and further said “attention is drawn to the previous injury to the cervical spine in January 2008.”
The Medical Assessor relevantly assessed Ms Tomazos with 20% WPI resulting from injury to her cervical spine, with explanation:
“This is addressed in AMA 5, page 392, Table 15-05. There has been decompressive surgery to the cervical spine, which places her into DRE Cervical Category III in this table. This provides a whole person impairment ranging between 15% and 18%, depending on the activities of daily living. For this she would reasonably attract a further 2%, giving 17%.
According to the SIRA Guidelines Page 29, Table 4.2 there are further modifications with a second surgery at 2% and surgery at three levels with a further 2%. This gives a combined WPI of 20%.”
Relevant to his deduction under s 323 of the 1998 Act, the Medical Assessor explained:
“At this stage, I would advise that I saw Ms Tomazos, who at that time was Ms Deligiannis, with a MAC dated 06/05/15. On that occasion it was assessed that she had a cervical spine whole person impairment at 6%. In retrospect, this was incorrect, since she was assessed in DRE II and should have been assessed in DRE III, since the first foraminotomy procedure had been conducted in October 2012, which was some two and a half years previously. Rather strangely, this does not seem to have been picked up by anybody reviewing the case subsequently and as a result, 6% whole person impairment was accepted by the Commission for the cervical spine. At this assessment, it is very obvious that she should be assessed in DRE Cervical Category III, which provides a whole person impairment ranging between 15% and 18% depending on the activities of daily living. A further 2% was assessed for this component, together with a further 4% for the modifications in the SIRA Guidelines, Table 4.2. As a result, the baseline impairment at this assessment was 20%.
According to the SIRA Guidelines Paragraph 1.28, ‘a standard deduction of one-tenth is applied for pre-existing conditions unless this is at odds with the available evidence.’ In this situation, this is very definitely the case. The reason for this is that previous surgery was conducted on the cervical spine and also with a significantly identifiable condition of the cervical spine, which would be at odds with a standard deduction of one-tenth. We have, however a figure of 6% WPI which was accepted for the condition of her cervical spine at that time, although rather ironically the methodology behind this is acknowledged to be incorrect. Therefore, for this assessment it is appropriate to carry out a “mathematical deduction” as described by Dr John Watson in his report of 20/03/2017. This therefore reduces the whole person impairment from 20% down to 14%. In Table 2 of this MAC, this is indicated as a deduction of 3/10ths.”
Relevant to any increase to his assessment of WPI to account for impairment of
Ms Tomazos’ compromised ability to perform her ADLs the Medical Assessor relevantly noted:“Ms Tomazos has been separated since about 2010. She lives alone in a second-floor unit. She has a son of 38 whom she occasionally sees and a granddaughter whom she seems more often and who gives her some help around the unit.
In years gone by, she was keen and gifted at soccer and Tai Kwon Do, but she has not been physically involved for many years. She can drive but has difficulty turning her head.”
Relevant to his assessment of WPI resulting from the injury Ms Tomazos sustained to her cervical spine, the Medical Assessor confirmed:
“This is addressed in AMA 5, Page 392, Table 15-05. There has been decompressive surgery to the cervical spine, which places here into DRE Cervical Category III in this table. This provides a whole person impairment ranging between 15% and 18% depending on the activities of daily living. For this she would attract a further 2%, giving 17%.”
Review of Ms Tomazos’ statements
In her statement dated 21 July 2022 Ms Tomazos explained she has been involved in three motor vehicle accidents.
Ms Tomazos said that in the motor vehicle accident occurring on 17 May 2005 she hit her head on the b frame of her car when her car was struck on the right side by another vehicle. She said she was treated conservatively.
Ms Tomazos said in the motor vehicle accident occurring on 2 January 2008 she hurt her neck and left shoulder when her stationary car was hit in the rear by another vehicle. She said, “I was still getting a great deal of symptoms in my neck beforehand, and this just made things worse”. She said too “I obtained treatment, but it took years to get over my injuries”.
Ms Tomazos said in the motor vehicle accident occurring on 7 February 2012 she “got the full force of the impact in my neck” when she collided with the back of the vehicle in front of her, which had stopped suddenly. Ms Tomazos explained her car did not have air bags.
Ms Tomazos said with her neck symptoms persisting despite conservative treatment in the nature of physiotherapy, she came to surgery under the neurosurgical care of Dr McKechnie in October 2012.
In her further statement dated 2 May 2024, while Ms Tomozas made reference to subsequent surgical treatment in that she said “the first surgery worked. But the results of the second operation were not favourable” she provided no further particulars regarding surgery subsequent to that performed in October 2012.
Review of previous MAC
The Medical Assessor had previously assessed Ms Tomazos on 13 April 2015, with one matter referred for assessment being injury sustained by Ms Tomazos to her cervical spine on 2 January 2008.
The Medical Assessor recorded injury sustained in the incident occurring on 2 January 2008:
“On 02/01/08, she was stationary in her car and was hit in the rear. She hurt her neck and shoulders. Treatment consisted of physiotherapy, hydrotherapy, and her own exercise regime.”
The Medical Assessor also recorded subsequent injury sustained in the incident occurring on 7 February 2012:
“In February 2012, she was involved in yet a further rear end vehicle accident in which her neck was further hurt. Ultimately a foraminotomy procedure was carried out by specialist neurosurgeon, Dr Simon McKechnie, in October 2012. This seemed to give her improvement of her arms but less so the neck.”
The Medical Assessor relevantly described his findings on physical examination:
“There was generalised ache through her neck. There was also a posterior scar which would be consistent with the most recent surgical approach following the vehicle accident of 2012. Movement of the head and neck was grossly reduced. Forward flexion and lateral rotation to the right were just about normal although extension and lateral flexion to the right were very grossly reduced to one third of the range. Lateral flexion to the left was reduced to half the range. Lateral rotation to the left was further reduced at two thirds of the range.”
When providing summary of injury and diagnosis resulting from the injury Ms Tomazos sustained in the incident occurring on 2 January 2008, the Medical Assessor said in part:
“The major injuries on this occasion affected her neck, upper back, and her shoulder complex. The left seems to have been more affected than the right. Elements of this condition continue.”
When providing comment as to the further injury Ms Tomazos sustained in the incident occurring on 7 February 2012, the Medical Assessor said:
“There has been a further vehicle accident which occurred in February 2012. This affected her neck with particular emphasis at the C4/5 level. There was neurological irritation down her right arm. This was managed by a surgical approach for a foraminotomy. This improved the condition of the right arm, but the condition of the neck continued.”
Relevant to the injury Ms Tomazos sustained to her cervical spine in the incident occurring on 2 January 2008, the Medical Assessor provided assessment of 6% WPI, with explanation:
“For her cervical spine, she qualifies for inclusion in DRE Cervical Category II of Table 15-5 on page 392 of AMA-5. This carries a whole person impairment ranging between 5% and 8% depending on the activities of daily living. She attracts a further 2% for this raises the impairment to 7%. There is a deduction of one tenth due to pre-existing degenerative issues which reduces this from 7% down to 6%.”
Review of the independent medical evidence
Dr Dixon
Dr Dixon provided five reports, two of which are dated 12 November 2008, and the others are dated 13 May 2011, 8 November 2011, and 7 October 2014.
In his initial reporting on 12 November 2008, Dr Dixon noted Ms Tomazos had sustained injury to her neck in the motor vehicle accident occurring on 17 May 2005 and had sustained further injury to her neck in the motor vehicle accident occurring on 2 January 2008. At that time Dr Dixon described Ms Tomazos as suffering stiffness in her neck and provided diagnosis:
“Post traumatic stiffness of her cervical spine with right sided cervical facet arthralgia with disc bulges at C4/5 and a disc protrusion at C3/4 with trapezial muscle pain with radicular complaint in the right upper limb with sensory changes and occipital headache.”
In his subsequent reporting on 13 May 2011, Dr Dixon again noted Ms Tomazos had sustained injury to her neck in the two motor vehicle accidents referred and again described Ms Tomazos as suffering stiffness in her neck and provided diagnosis:
“neck strain injury with post traumatic stiffness with dysmetria with residual mid cervical facet arthralgia and trapezial muscle pain with radicular complaint with occipital headaches and sensory changes in her right upper limb with a C3/4 posterior-central disc protrusion and aggravation of C3/4, C4/5, C5/6 and C6/7 cervical spondylosis which is ongoing.”
At that time Dr Dixon assessed Ms Tomazos with 5% WPI resulting from injury to her cervical spine in the motor vehicle accident on 2 January 2008, which included 1/10th deduction pursuant to s 323 of the 1998 Act.
In his most recent reporting on 7 October 2014, while Dr Dixon again noted Ms Tomazos had sustained injury to her neck in the two motor vehicle accidents referred, he noted
Ms Tomazos had sustained further injury to her neck in yet another motor vehicle accident occurring on 7 February 2012. Dr Dixon noted Ms Tomazos had come to surgical treatment on 31 October 2012, which he said provided “some relief”. Dr Dixon described Ms Tomazos as suffering pain and stiffness in her neck and provided diagnosis:“further neck strain injury with post traumatic stiffness with dysmetria, residual mid cervical facet arthralgia and trapezial muscle pain with spasm with radicular complaint with occipito frontal headaches and sensory changes in the right upper limb which are less marked following her decompression laminectomy with aggravation of previously asymptomatic cervical spondylosis which is ongoing.”
At that time Dr Dixon assessed Ms Tomazos with 5% WPI resulting from injury to her cervical spine on 7 February 2012, which included 5% WPI deduction under s 323 of the 1998 Act.
Dr Stephen
Dr Stephen provided reports dated 12 Arill 2012, 23 April 2012, 13 September 2012,
23 December 2014, 26 November 2021, and 30 December 2021.In his initial reporting Dr Stephen noted he had previously assessed Ms Tomazos on
27 May 2008 and while this earlier report is not currently before the Commission, Dr Stephen confirmed that at that time he had provided diagnosis non-specific mechanical cervical pain with some radiation to the interscapular region and right scapula. Dr Stephen noted
Ms Tomazos had sustained injury to her neck in the motor vehicle accidents occurring on
17 May 2005, 2 January 2008 and 7 February 2012. Dr Stephen reported Ms Tomazos complained of increased neck pain and headaches and provided diagnosis:“Mrs Deligiannis has had an exacerbation of neck pain and headaches following the motor vehicle accident of 7 February 2012, which has served to exacerbate her previous non-specific mechanical cervical pain.”
On this occasion Dr Stephen assessed Ms Tomazos with 0% WPI resulting from the injury she sustained to her cervical spine on 2 January 2008. In response to specific questioning
Dr Stephen said the injury Ms Tomazos sustained to her neck in the motor vehicle accident in 2005 “contributed, probably roughly equally, to the complaints of neck and shoulder pain with the injury of 2008”.
In his report dated 13 September 2012, Dr Stephen described Ms Tomazos’ neck symptoms as having worsened since he last assessed her and reported “she was troubled by pain at the base of the neck on the right side.” Dr Stephen provided diagnosis:
“Mrs Deligiannis now has severe symptoms of nerve root irritation particularly in the distribution of C5 as well as mechanical neck pain.”
Dr Stephen said too that “it is likely that in February of 2012 Mrs Deligiannis sustained disc damage to a disc that was already susceptible to further damage, having been the subject of two insults in 2005 and 2008” and the initial surgical treatment proposed by Dr McKechnie was reasonably necessary treatment for the injury she sustained to her neck in the motor vehicle accident on 8 February 2012.
In his report dated 23 December 2014 Dr Stephen noted Ms Tomazos had come to surgical treatment under the care of Dr McKechnie on 31 October 2012 and while this had “largely relieved her right arm pain and improved her range of movement here, as she described it” her neck pain remained the same. Dr Stephen provided diagnosis of ongoing non-specific cervical pain with associated ongoing headaches. Relevant to his assessment of WPI,
Dr Stephen said:“There is a whole person impairment in respect of the neck. She has had surgery for a radiculopathy. She no longer has a radiculopathy.
Referring to the Workcover Guides and to the AMA Guides to the Evaluation of Permanent Impairment, table 15-5, page 392, she is DRE Cervical Category III 15-18% whole person impairment.
Taking into account activities of daily living, I would put her toward the middle of this scale at about 16.5% WPI rounded off to 17%.
Of this whole person impairment, one third is the product of the motor vehicle accident of 17 May 2005, one third is the product of the motor vehicle accident of 2 January 2008, and one third is the product of the motor vehicle accident of 7 February 2012.
Rounded off, 6% whole person impairment is the product of the accident of 17 May 2005, 6% is the produce of the accident of 2 January 2008 and 6% is the produce of the motor vehicle accident of 7 February 2012.”
In his most recent reporting, Dr Stephen again provided assessment of 17% WPI resulting from the injury Ms Tomazos had sustained to her cervical spine. Dr Stephen again provided opinion that such permanent impairment is to be divided equally between the motor vehicle accidents occurring in 2005, 2008 and 2012. Dr Stephen confirmed assessment of 6% WPI resulting from the injury Ms Tomazos sustained to the cervical spine on 7 February 2012.
Dr Endrey Walder
Dr Endrey Walder provided three reports dated 23 November 2016, 4 May 2021 and
6 September 2023. Dr Endrey Walder provided assessment of 22% WPI resulting from the injury Ms Tomazos sustained to her cervical spine on 7 February 2012, with no deduction made under s 323 of the 1998 Act.
Dr Watson
Dr Watson provided two reports dated 1 March 2017 and 20 March 2017. Dr Watson provided assessment of 18% WPI resulting from the injury Ms Tomazos sustained to her cervical spine on 7 February 2012, with no deduction made under s 323 of the 1998 Act.
Review of the treating medical evidence
Diagnostic imaging
In the circumstances of this particular matter the Appeal Panel carefully considered the diagnostic imaging reporting:
(a) on 13 October 2008 an MRI cervical spine reportedly demonstrated bulge at C4/5 with degenerative changes, mostly in the lower segments;
(b) on 2 February 2012 a CT scan cervical spine reportedly demonstrated a very mild right sided foraminal stenosis of C4/5 and C5/6 secondary to uncovertebral osteophytes with no nerve root compression visualised;
(c) on 7 May 2012 an MRI cervical spine reportedly demonstrated postero-lateral protrusion at C4/5 deviated towards the right;
(d) on 20 February 2013 an MRI cervical spine reportedly demonstrated C4/5 osteophyte complex on the right causing foraminal stenosis and at C5/6 there was a posterior protrusion deviated towards the right;
(e) on 6 July 2015 an MRI cervical spine reportedly demonstrated significant narrowing of the right C4/5 and C5/6 foramina and the left C6/7 foramen, multi-level spondylitic changes, and mild wedging of the C4/C5 vertebrae;
(f) on 7 March 2021 an MRI cervical spine reportedly demonstrated cervical spondylitic change and loss of normal cervical lordosis most likely due to muscle spasm;
(g) on 6 June 2023 an MRI cervical spine reportedly demonstrated cervical spondylosis with multilevel neural foraminal stenosis, most prominent at left C6/C7 with possible impingement at the left C7 nerve root and possible impingement of the right C5 nerve root, and mild spinal canal stenosis from C3/4 to C5/C6, and
(h) on 27 December 2023 an MRI cervical spine reportedly demonstrated spondylitic changes with minor narrowing of intervertebral foramina at multiple levels particularly at C6/7 on the left side and C5/6 on the right side.
Dr Mahony
Dr Mahony was Ms Tomazos’ initial treating orthopaedic surgeon. Dr Mahony provided a number of reports during the period 8 October 2008 and 8 January 2010 and accordingly his reporting pre-dates injury sustained by Ms Tomazos in the motor vehicle accident occurring on 7 February 2012.
When reviewed by Dr Mahony on 16 November 2009, which is some three years prior to the motor vehicle accident occurring on 7 February 2012, Dr Mahony said of Ms Tomazos:
“She complained of pain in the back of her neck which radiated to the occipital area and to the shoulders, the right more so than the left and to her right hand, and occasionally to her left elbow.” At that time, Dr Mahony recommended continuing conservative treatment and restricted duties, with ongoing review.”
Dr McKechnie
Dr McKechnie is Ms Tomazos’ treating neurosurgeon. Ms Tomazos came to C4/5 and C5/6 partial laminectomy, posterior microdiscectomy and spinal rhizolysis under his care on
31 October 2012, with limited relief. Ms Tomazos came to left level C5/6 and C6/7 foraminotomy under his care on 14 December 2022.When reviewed on 4 January 2024 Ms Tomazos complained of persistent pain, particularly over the left side of her neck and shoulder. Dr McKechnie considered surgical treatment in the nature of an anterior C5/6 and C6/7 discectomy and fusion was an option for
Ms Tomazos but recommended initial review by an orthopaedic surgeon.On review on 26 February 2024, which followed Ms Tomazos’ orthopaedic review (noted below) Dr McKechnie said, “if the pain continues, she will need to decide whether she wishes to proceed with anterior cervical discectomy and fusion surgery.”
Dr Herald
Ms Tomazos was orthopaedically reviewed by Dr Herald on 12 February 2024. Dr Herald noted at that time that while Ms Tomazos’ neurological symptoms had improved “to some degree” following surgical treatment, “she still had chronic pain and difficulty with rotation of her neck”. Dr Herald considered “a fusion may be the last resort” and returned Ms Tomazos to the care of Dr McKechnie.
Legal considerations
Guidelines
Legislation and Guidelines
Section 323 of the 1998 Act relevantly 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 … or that is due to any pre-existing condition.
(2) If the extent of a deduction under this section (or 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.
…
(3) The reference in subsection (2) to medical evidence is reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.”
Chapter 1 of the Guidelines provides for deductions for pre-existing condition or injuries.
Clause 1.27 provides:
“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.”
Clause 1.28 provides:
“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. The 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.”
Authorities
At this point it is useful to note authority the Appeal Panel considers to be central to complaint made by Ms Tomazos.
In Ferguson v State of New South Wales[1] the court cited with approval NSW Police Force v Daniel Wark[2] where the court said:
“The pre-eminence of the clinical observations cannot be underrated. The judgment as to the significant or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.”
[1] [2017] NSWSC 140 (Ferguson).
[2] [2012] NSWCCMA 36.
The task of the Medical Assessor was described by the court in State of New South Wales v Kaur:[3]
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise…”
[3] [2016] NSWSC 346.
Justification of intervention by an Appeal Panel such as ours was also discussed by the court in Ferguson:[4]
“The Appeal Panel accepted that intervention was only justified: if the categorization was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[4] [2017] NSWSC 140 (Ferguson).
The matter of Ferguson was cited with approval by the court in Parker v Select Civil Pty Limited.[5]
[5] [2018] NSWSC 140.
In determining Ms Tomazos’ appeal, we are mindful too that in Campbelltown City Council v Vegan[6] the court held that the Appeal Panel is obliged to give reasons. While where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based and where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement
Issues to be determined
Did the Medical Assessor fail to correctly apply s 323 of the 1998 Act?
[6] [2006] NSWCA 284.
The Appeal Panel considers the Medical Assessor failed to correctly apply s 323 of the 1998 Act in that the Medical Assessor has merely deducted his previous assessment of 6% WPI resulting from the injury she sustained to her neck in the motor vehicle accident on
2 January 2008.Although the Appeal Panel accepts the pathology demonstrated after Ms Tomazos sustained injury in the motor vehicle accident on 7 February 2012 is not remarkably different to that demonstrated after she sustained injury in the motor vehicle accident on 2 January 2008, the Appeal Panel accepts the reporting of Dr Dixon, who had the opportunity to assess
Ms Tomazos after she sustained injury to her neck in the motor vehicle accident on
2 January 2008 and before she sustained injury to her neck on 7 February 2012, demonstrates that at the time Ms Tomazos sustained further injury to her neck in the motor vehicle accident on 7 February 2012 she had remained symptomatic, but with her symptoms considerably worsening after the motor vehicle accident on 7 February 2012.Of significance is that Dr Dixon reported on 12 November 2008 and again on 13 May 2011 (which is less than one year prior to the motor vehicle accident occurring on
7 February 2012) that Ms Tomazos suffered pain and stiffness in her neck with radicular complaint, and on 7 October 2014 (which is over two and half years after the motor vehicle accident occurring on 7 February 2012) Dr Dixon reported that following the further injury
Ms Tomazos sustained to her neck in the motor vehicle accident on 7 February 2012,
Ms Tomazos had come to surgical treatment under the care of Dr McKechnie on
31 October 2012, with limited relief.While the Appeal Panel accepts Ms Tomazos continued to suffer symptoms in her neck as a result of the injury she sustained to her neck in the motor vehicle accident on
2 January 2008, the Appeal Panel considers that these symptoms Ms Tomazos suffered in her neck had stabilised at the time she sustained further injury to her neck in the motor vehicle accident occurring on 7 February 2012 and notes that it was not until after
Ms Tomazos sustained this further injury to her neck in the motor vehicle accident occurring on 7 February 2012 that she came to C4/5 and C5/6 partial laminectomy, posterior microdiscectomy and spinal rhizolysis under the care of Dr McKechnie on 31 October 2012, with limited relief, and left level C5/6 and C6/7 foraminotomy again under the care of Dr McKechnie on 14 December 2022, again with limited relief.Although the Appeal Panel accepts there is medical evidence available that addresses the injury Ms Tomazos sustained to her neck prior to the further injury Ms Tomazos sustained to her neck in the motor vehicle accident on 7 February 2012, in circumstances where the Medical Assessor failed to correctly apply s 323 of the 1998 Act in that he merely deducted his previous assessment of 6% WPI resulting from the injury Ms Tomazos sustained to her neck in the motor vehicle accident on 2 January 2008, the Appeal Panel considers the correct deduction to be made under s 323 of the 1998 Act is the legislative assumption of 10% of the impairment resulting from the injury Ms Tomazos sustained to her cervical spine.
Following a thorough review of the medical evidence available to the Appeal Panel, the Appeal Panel does not consider a deduction of 10% of the impairment that results from the injury Ms Tomazos sustained to her cervical spine in the motor vehicle accident on
7 February 2012 “is at odds” with that evidence.While the Medical Assessor assessed Ms Tomazos with 20% WPI resulting from the injury she sustained to her cervical spine, the Medical Assessor made a deduction of 3/10ths under s 323 of the 1998 Act, which resulted in an assessment of 14% WPI resulting from the injury Ms Tomazos sustained to her cervical spine in the motor vehicle accident on 7 February 2012. Neither Ms Tomazos nor Insurance Australia quibble with the Medical Assessor’s assessment of 20% WPI resulting from the injury Ms Tomazos sustained to her cervical spine in the motor and accordingly neither does the Appeal Panel.
With reference to Table 15-5 on page 392 of AMA 5, the Medical Assessor noted
Ms Tomazos came to initial decompression surgery of her cervical spine on 31 October 2012 under the care of Dr McKechnie, which the Medical Assessor said placed her in Category III, providing assessment ranging between 15% WPI and 18% WPI depending on the ADLs, which the Medical Assessor assessed at 2% WPI. The Medical Assessor therefore assessed Ms Tomazos with 17% WPI. With reference to Table 4.2 on page 29 of the Guidelines, the Medical Assessor upwardly modified his assessment of 17% WPI by 4% WPI, allowing 2% WPI for the further surgery Ms Tomazos came to under the care of Dr McKechnie on
14 December 2022 and 2% WPI because Ms Tomazos’ surgeries involved three levels, being the initial surgery at C4/5 and C/56 and the subsequent surgery at C5/6 and C6/7.With reference to the Combined Values Chart, the Medical Assessor therefore assessed
Ms Tomazos with 20% WPI resulting from the injury she sustained to her cervical spine, prior to making a deduction of 3/10ths under s 323 of the 1998 Act. For reasons discussed above, the Appeal Panel considers it appropriate that a deduction of 1/10th (rather than 3/10ths) be made under s 323 of the 1998 Act, which results in 18% WPI.
Did the Medical Assessor fail to increase his assessment of WPI to account for impairment of
Ms Tomazos’ compromised ability to perform her ADLs?
The Appeal Panel does not consider the Medical Assessor failed to increase his assessment of percentage WPI to account for impairment of Ms Tomazos’ compromised ability to perform her ADLs.
The Medical Assessor noted Ms Tomazos lived alone, and her granddaughter provided her with some help around her unit. The Medical Assessor also noted while Ms Tomazos continued to drive, she had difficulty turning her head. The Medical Assessor provided reasoning for his assessment of WPI resulting from the injury Ms Tomazos sustained to her cervical spine which included:
“There has been decompressive surgery to the cervical spine, which places her into DRE Cervical Category III in this table. This provides a whole person impairment ranging between 15% and 18%, depending on the activities of daily living. For this she would reasonably attract a further 2%, giving 17%.” (our emphasis added).
CONCLUSION
For the reasons outlined above, the Appeal Panel has determined that the MAC issued on
25 September 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: | W4155/24 |
Appellant: | Mary-Anne Tomazos (Deligiannis) |
Respondent: | Insurance Australia 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 Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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) |
| 1. cervical spine | 07/02/12 | Chapter 3 Page 13 | Page 392 Table 15-05 | 20 | 1/10th | 18 |
| 2. Gastrointestinal system | 07/02/12 | Chapter 16 Page 78 | Page 121 Table 6-03 | 5 | 5 | |
| 3. Scarring | 07/02/12 | Page 74 Table 14.1 | 1 | 1 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 23 | |||||
0
4
0