Vadala v Burwood Council

[2023] NSWPICMP 489

DETERMINATION OF APPEAL PANEL
CITATION:	Vadala v Burwood Council [2023] NSWPICMP 489
APPELLANT:	John Vadala
RESPONDENT:	Burwood Council
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	4 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Worker suffered injury to cervical spine and right shoulder and had consequential condition of scarring from laminectomy to cervical spine; Medical Assessor (MA) assessed worker’s permanent impairment relating to cervical spine by reference to DRE Cervical Category II, which both parties agreed was wrong and that the assessment should have been by reference to DRE Cervical Category III; unclear from MA’s findings whether worker met criteria for finding of radiculopathy; unclear from MA’s findings whether MA examined the flexion of the worker’s right shoulder; worker re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. John Vadala commenced employment with Burwood Council around 2006 to 2007. On 18 February 2020 he was working at the Strand at Croydon erecting signs. This required him to walk through some vegetation in which laid a plastic irrigation line that had been obscured by the vegetation. Mr Vadala’s right foot caught on the line. He fell forward injuring his cervical spine and right shoulder.

2. On 4 July 2022 Mr Vadala, through his solicitors, claimed compensation from the insurer of Burwood Council for permanent impairment resulting from his injury. Mr Vadala relied upon a report of consultant occupational physician, Dr Christopher Oates, dated 9 May 2022 who assessed Mr Vadala had 30% whole person impairment (WPI) resulting from his injury. In terms of the composition of his assessment, Dr Oates advised in that report he assessed Mr Vadala had 21% WPI relating to his cervical spine, 8% WPI relating to his right shoulder, and 8% WPI relating to his left shoulder. Dr Oates also advised that those components combined to 33% WPI, but he considered there should be a deduction of 10% of that when assessing Mr Vadala’s permanent impairment from his injury for a proportion of that total impairment that Dr Oates considered was due to a pre-existing condition.

3. The insurer arranged for Mr Vadala to be examined by orthopaedic surgeon Dr Richard Powell on 23 August 2022. In a report dated 10 October 2022 Dr Powell advised that Mr Vadala’s “ongoing symptoms and functional limitations are multi-factorial taking into account the contribution on the long-standing pre-existing degenerative disease process involving the cervical spine as well as the aggravation of the condition as a result of the specific workplace incident”. Dr Powell advised that Mr Vadala had 21% WPI relating to his cervical spine. Dr Powell also advised that “based on the available information noting the severe degenerative pathology across multiple levels in the cervical spine I would make a deduction of one-half of the above figure”. Dr Powell then said that with rounding this resulted in Mr Vadala having 9% WPI from his injury. The Appeal Panel observes that that calculation is obviously incorrect because the result after making a deduction of 50% and then rounding the result is 11% WPI.

4. The insurer in a letter dated 21 October 2022 notified Mr Vadala under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) that it disputed he was entitled to the compensation he claimed. It advised Mr Vadala that his employment was not the main contributing factor to an alleged bilateral shoulder injury and it disputed that his “claimed condition in your bilateral shoulders” had resulted from “the accepted injury” to his cervical spine. The insurer advised Mr Vadala that based on the assessment orthopaedic surgeon Dr Richard Powell had done, he did not have an entitlement to compensation under s 66 of the Workers Compensation Act 1987 because his impairment did not exceed the requisite 10% threshold required by that section.

5. Mr Vadala then instituted proceedings in the Personal Injury Commission (Commission), by filing an Application to Resolve a Dispute dated 19 December 2022 (ARD), seeking a determination of his disputed claim for compensation under s 66. The matter was referred to a member of the Commission, namely Ms Elizabeth Beilby, who on 31 March 2023, with the consent of the parties, made the following determination:

   “1. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:

   (a) Date of injury: 1           8 February 2020 – Frank incident.

   (b) Body systems / parts:   Cervical spine, right upper extremity (shoulder)

   (c) Method of Assessment:          Whole person impairment

   2. The following additional documents to be reviewed by the Medical Assessor are:

   a. Application and Reply;

   b. Late documents dated 24/3/23 and 15/3/23.

   3.      Award for the respondent as to any injury, howsoever occasioned, to the applicant’s left upper extremity (shoulder).”

6. A delegate of the President of the Commission duly referred the matter to Medical Assessor Dr Farhan Sahzad to assess the medical dispute between Mr Vadala and Burwood Council relating to the degree of Mr Vadala’s permanent impairment from his injury.

7. On 5 June 2023 the Medical Assessor issued a Medical Assessment Certificate (MAC) in response to that referral in which he certified the Mr Vadala had 13% WPI resulting from his injury, comprising 5% WPI relating to his cervical spine and 8% WPI relating to his right shoulder.

8. Both Mr Vadala and Burwood Council have appealed against that medical assessment and both rely on the following grounds for appeal provided in s 327(3) of the 1998 Act:

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

9. 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.

10. Rule 128 of the Personal Injury Commission Rules 2021 (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.

11. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
    1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that Mr Vadala should undergo a further medical examination. This is because, for reasons the Appeal Panel will explain below under the heading Findings and Reasons, the Appeal Panel found that the MAC contained demonstrable errors and the Appeal Panel could not rely on the findings the Medical Assessor made from his examination of Mr Vadala, to correct those errors. It was necessary therefore for the Appeal Panel to conduct its own examination to obtain the necessary clinical data to correct the errors in the MAC.

3. The Appeal Panel appointed Dr James Bodel, one of its members, to conduct that examination, which he did on 19 September 2023. Dr Bodel’s report to the Appeal Panel is set out under the heading Findings and Reasons.

EVIDENCE

1. 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

1. The Medical Assessor examined Mr Vadala on 31 March 2023. The Medical Assessor obtained a history relating to the occurrence of the Mr Vadala’s injury. The Medical Assessor noted that a MRI scan of the Mr Vadala’s cervical spine done on 21 October 2020 revealed significant vertebral body spur formation that was indicative of diffuse idiopathic skeletal hyperostosis (DISH) and ossification of the posterior longitudinal ligament (OPLL) at C3/4 that had led to mild to moderate spinal canal stenosis. The Medical Assessor further noted that MRI revealed a moderate right foraminal disc osteophyte at C6/7 that was likely impinging on the departing right C7 nerve root and causing stenosis at the foramen. The Medical Assessor noted the MRI revealed a left foraminal disc osteophyte complex at C7/T1 with stenosis of the left neural foramen likely impingement of the existing left C8 nerve root.

2. The Medical Assessor noted that the Mr Vadala came under the care of neurosurgeon Professor Van Gelder who on 16 December 2020 performed a cervical foraminotomy and cervical laminoplasty at C3 and C4 and partial C5 laminectomy. The Medical Assessor noted that Professor Van Gelder found, when performing that procedure, that the Mr Vadala had severe upper cervical canal stenosis producing myelopathy with DISH and OPLL.

3. The Medical Assessor summarised within the MAC the reports on the radiological investigations Mr Vadala had undergone. These included an ultrasound of the right shoulder dated 2 June 2022, the MRI of the cervical spine dated 21 October 2020, and an X-ray and CT scan of the cervical spine dated 4 December 2020.

4. The Medical Assessor recorded the following findings from his examination of Mr Vadala’s cervical spine and right shoulder:

   “Cervical spine

   He had a 7cm scar on the posterior aspect of his neck which is well healed. He had no guarding or rigidity.

   He had a motor deficit on the right side. Cervical spine has a reduced range of movement to half to one third of normal on flexion, extension, lateral flexion and lateral rotations and scar tissue.

   Right Shoulder

   On examination of the right shoulder, he has restriction on abduction 100 degree, adduction 30 degree, internal rotation 60 degree and external rotation 70 degree and extension to 40 degree. Jobe’s, Hawkins and Neer impingement test on the right side were negative. He has motor deficit on the right side and variable pins and needles in the tips of the fingers.

   There was no localised tenderness, guarding or rigidity. Muscle girth measurement on the right arm was 32cm and 33cm on the left arm.

   Dynamometer grip strength assessment shows 5.2kg on the right side and 19.1kg on the left side.

   He has non verifiable radiculopathy in the right upper limb with motor deficit.”

5. The Medical Assessor said within the MAC that he based his assessment of the appellant’s WPI on his “physical assessment, the clinical presentation, radiological investigations and documentation”. Under the heading “an explanation of my calculations (if applicable)” within the prescribed form for the MAC the Medical Assessor stated “not applicable”. The Medical Assessor did not attach any worksheet to the MAC.

6. The Medical Assessor said he was in agreement with other medical reports, but did not specify which.

7. The Medical Assessor said that Mr Vadala did not suffer from any prior injuries, pre-existing conditions or abnormalities. In Table 2 attached to the MAC the Medical Assessor set out that his assessment of Mr Vadala’s permanent impairment relating to the cervical spine was 5%. He indicated in that table that that assessment was made by reference to the criteria of DRE Cervical Category II of Table 15-5 of AMA 5. The Medical Assessor also disclosed in that table that he assessed Mr Vadala had 8% WPI relating to his right shoulder, which the Medical Assessor indicated was assessed by reference to the criteria set out in pages 476 to 479 of Chapter 16 of AMA 5. The Medical Assessor noted within the table that what he assessed Mr Vadala had with respect to his cervical spine and right shoulder combined to 13% WPI. The Medical Assessor certified that was the permanent impairment of Mr Vadala resulting from his injury.

8. The Medical Assessor provided no further explanation for his assessment of Mr Vadala’s permanent impairment.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, Mr Vadala’s submissions in support of the appeal he made against the medical assessment were that the Medical Assessor failed to have regard to the laminectomy he had done and failed to apply the criteria within clause 4.37 of the Guidelines. Mr Vadala submitted that his impairment with respect to his cervical spine ought to have been assessed by reference to DRE Cervical Category III, for which a base rating of 15% WPI applies. Mr Vadala submitted that was how both Dr Oates and Dr Powell assessed his impairment with respect to the cervical spine. Mr Vadala noted that both of those doctors had correctly assessed he had 17% WPI, implying that that to the base rating of 15% WPI provided by DRE Cervical Category III, the Medical Assessor ought to have added 2% WPI in accordance with clause 4.33 of the Guidelines for the effect his injury to his cervical spine has had on his activities of daily living.

3. Mr Vadala further submitted that to that rating the further additional ratings ought to have been applied in accordance with Table 4.2 of the Guidelines, specifically 3% WPI for surgery at one level and a further 2% WPI for surgery at additional levels, such that his permanent impairment with respect to his cervical spine ought to have been assessed at 21% WPI.

4. Burwood Council, in response to those submissions, acknowledged that the criteria set out in clause 4.37 of the Guidelines applied with respect to the assessment of Mr Vadala’s permanent impairment relating to his cervical spine and that the Medical Assessor failed to assess Mr Vadala’s permanent impairment by reference to that criteria. Burwood Council accepted the Medical Assessor erred in applying DRE Cervical Category II given the surgery Mr Vadala had.

5. Burwood Council disputed however, the submission Mr Vadala made that both Dr Oates and Dr Powell had added 3% WPI for one surgery at one level and a further 2% WPI for surgery at an additional level. Burwood Council submitted that what Dr Oates and Dr Powell did was apply a 3% WPI modifier for residual symptoms and radiculopathy. Burwood Council noted that Table 4.2 of the Guidelines requires a modifier of 1% WPI to be added for spinal surgery done at the second and each additional level. Burwood Council submitted that because Mr Vadala underwent surgery at two additional levels 2% WPI ought to have been added by the Medical Assessor.

6. Burwood Council noted that the Medical Assessor recorded in the MAC that Mr Vadala had non-verifiable radiculopathy in the right upper limb with motor deficit. Burwood Council submitted that finding did not accord with the requirements of clause 4.27 of the Guidelines for a finding of radiculopathy to be made. Burwood Council submitted that based on that finding of the Medical Assessor Mr Vadala would not therefore qualify for the 3% WPI modifier that both Dr Oates and Dr Powell had made when they respectively assessed Mr Vadala’s permanent impairment.

7. Burwood Council submitted that based on what the Medical Assessor recorded in the MAC relating to Mr Vadala’s activities of daily living, which included that he is slowly getting back to recreational activities and has returned to drumming, and noting that Mr Vadala is able to drive a car and undertake housework, and do grocery shopping and gardening and mow his lawn, that 0% WPI ought to be allowed for the impact of Mr Vadala’s injury on his activities of daily living.

8. With respect to its appeal against the medical assessment, Burwood Council submitted that the Medical Assessor’s findings from examination of Mr Vadala demonstrated he had abduction to 100°, adduction to 30°, internal rotation of 60°, external rotation of 70° and extension to 40°. Burwood Council noted that the Medical Assessor made no record of Mr Vadala’s shoulder flexion. Burwood Council submitted that in accordance with figures 16-40 to 16-46 of AMA 5, based on the findings the Medical Assessor recorded in the MAC relating to the movement of Mr Vadala’s right shoulder, the Medical Assessor ought to have assessed Mr Vadala had 8% upper extremity impairment which converts to 5% WPI. Burwood Council submitted that the Medical Assessor erred by assessing Mr Vadala’s impairment relating to his right shoulder’s 8% WPI.

9. Burwood Council also submitted that the Medical Assessor provided no explanation for finding that Mr Vadala did not have a pre-existing condition or abnormality. Burwood Council referred to various pieces of the evidence before the Medical Assessor that it contended indicated Mr Vadala had degenerative disease in his cervical spine at the time Mr Vadala suffered injury. Burwood Council submitted that, given that evidence, the Medical Assessor erred by not making a finding that Mr Vadala had a pre-existing condition in his cervical spine. Burwood Council submitted that the pre-existing condition in Mr Vadala’s lumbar spine contributed to one-half of the permanent impairment Mr Vadala had relating to his cervical spine and the Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act of that order. Burwood Council submitted that to assume under s 323(2) of the 1998 Act that the deducted proportion under s 323(1) is 10% would be at odds with the available evidence.

10. In response to those submissions, Mr Vadala conceded that the Medical Assessor failed to address whether a proportion of his permanent impairment is due to a pre-existing pathology that affected his cervical spine. Mr Vadala however submitted that the deduction should not be 50% as Burwood Council submitted. Mr Vadala referred to his being entirely symptom free and having unimpeded function before he suffered injury. Mr Vadala submitted that this indicates that prior to his suffering injury on 20 February 2020 the pre-existing pathology in his cervical spine was not causing any compression of his spinal cord whereas following injury there was a compression. Mr Vadala submitted that based on that the deductible proportion under s 323(1) should, in accordance with s 323(2), be assumed to be 10%.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. The Appeal Panel agrees with the submissions of both parties that the Medical Assessor ought to have assessed Mr Vadala’s permanent impairment relating to his cervical spine by reference to the criteria contained within clause 4.37 of the Guidelines. Further, it is unclear from the findings the Medical Assessor recorded in the MAC from his examination of Mr Vadala’s cervical spine whether Mr Vadala met the criteria set out in clause 4.27 of the Guidelines for a finding of radiculopathy to be made. That is relevant because, as Burwood Council submitted, if Mr Vadala has residual symptoms and radiculopathy following his surgery, then in accordance with Table 4.2 an additional 3% WPI should be added to the base assessment of Mr Vadala’s impairment allowed by DRE Cervical Category III. Specifically, the Medical Assessor did not indicate in the MAC whether he tested the reflexes of Mr Vadala’s upper extremities. Certainly, no finding was recorded in the MAC regarding that. Further, there was no indication in the MAC that the Medical Assessor had examined Mr Vadala for positive nerve root tension.

1. The Appeal Panel also considers that the Medical Assessor’s examination of Mr Vadala’s right shoulder was deficient in that there is no record within the MAC of the Medical Assessor testing the flexion of Mr Vadala’s right shoulder. If the Medical Assessor did so, he did not record his finding in the MAC relating to that.

2. The Appeal Panel finds therefore that the MAC does contain demonstrable errors. Further, with respect to the Medical Assessor’s assessment of Mr Vadala’s impairment of his cervical spine, the Medical Assessor applied the incorrect criteria to make his assessment.

3. As indicated above, in order to correct those errors, the Appeal Panel needed to re-examine Mr Vadala, and the Appeal Panel assigned that task to Dr James Bodel. Dr Bodel examined Mr Vadala on 19 September 2023 and reported to the Panel on 21 September 2023 as follows:

   “PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W40/23 and M2-W40/23
Mr Vadala:	John VADALA
Respondent:	Burwood Council
Date of Report:	21 September 2023

Examination Conducted By:	Medical Assessor Dr James G Bodel
Date of Examination:	19 September 2023

1.   The workers medical history, where it differs from previous records

I have reviewed the history in the Medical Assessment Certificate, and it is accurately recorded.

The event that caused injury to his neck and right shoulder occurred when he tripped on a ‘plastic irrigation line’ in a garden in a concrete traffic island as he had completed the erection of the street sign that he was undertaking at that time.

He was with a co-worker who was working on another section, installing another sign. As he tripped, he was thrown across the roadway towards his work truck which was on the other side of the road. He was dazed but not fully unconscious.

His co-worker came to investigate. He managed to get up from the ground and sat down on the curb to collect his thoughts.

He suffered grazes to his face and damage to his nose. He also injured his neck and right shoulder and arm with numbness and tingling in the right hand. He felt like he was developing a ‘dead’ hand. Two or three months later he developed numbness in both hands. His neck and left shoulder were the main area of pain at the time of the injury.

The rest of the history confirms that he was seen by Professor Van Gelder. He presented with persisting neck pain, right shoulder girdle pain and numbness and tingling in both hands.

Professor Van Gelder was concerned that there was spinal cord compression in the neck and investigations did show significant pathology in that region with the existence of significant degenerative change, but Mr Vadala indicated that he was unaware of this and he had no prior problems with his neck. He does not recall ever being treated for a neck injury at any time prior to this.

I have carefully been through the local doctor’s continuation notes to verify that statement.

I also note the signed and dated statement from 24 February 2024 from Mr Vadala indicating that ‘prior to 18 February 2020, I was unaware of any pain or disability whatsoever affecting either my neck or my right shoulder or for that matter, either shoulder or arms’.

I note that Dr Poplawski, another assessor indicated asymptomatic DISH and OPLL and cervical myelopathy following a fall at work.

There are no signs to confirm that he did have an abnormal gait pattern or true signs of cervical myelopathy, but I understand that Professor Van Gelder was very keen to compress him because of the potential for this to occur.

In a letter dated 2 dated 2 December 2020, Professor Van Gelder confirms why he has recommended the posterior decompression and partly, that is because of the extensor osteophyte formation and spontaneous fusion which appears to have occurred anteriorly.

I did not notice any definite clinical signs of myelopathy in his clinical assessment pre-operatively.

There is no reference that I can identify in the local doctor’s notes of any prior problems with the neck.

I also note that a worksite investigation was undertaken, this identified that Mr Vadala also worked part-time as an entertainer, principally at the Marconi Club in western Sydney. He is a member of a duo and he is a drummer by trade. He also is a singer, and he was unable to play drums for about twelve months as a consequence of his injury. He has now returned to this work.

2.   Additional history since the original Medical Assessment Certificate was performed

Nil

3.   Findings on clinical examination

There is a well healed scar at the back of the neck consistent with the wide deep compressive laminectomy performed by Professor Van Gelder.

He has quite marked stiffness in neck flexion, extension and rotation to about only 40% of the expected range in a man of his age. There is discomfort at the extremes of the rotational movement but there is no asymmetry of movement.

He has a restricted range of shoulder movement in each shoulder as recorded below:

Shoulder Movement	Active ROM Measured RIGHT	Active ROM Measured LEFT	NORMAL ROM
Flexion	140°	180°	180°
Extension	40°	50°	50°
Adduction	30°	50°	50°
Abduction	100°	180°	180°
Internal rotation	60°	90°	90°
External rotation	70°	90°	90°

There is no restriction of elbow, wrist or hand movement. Grip strength is normal. There is no residual sign of reflex abnormality or sensory impairment in a dermatomal distribution in either upper limb and no clinical signs of radiculopathy.

4.   Results of any additional investigations since the original Medical Assessment Certificate

No additional investigations have been provided.

I have however had the opportunity to view a CT scan of the cervical spine which shows a well-maintained disc space between C2/3 and C3/4. There is a very large, almost bridging osteophyte anteriorly at C3/4 but there is ankylosis and fusion of the C4/5 C5/6 and C6/7 disc spaces anteriorly with the opacification of the anterior longitudinal ligament. There is uncovertebral canal stenosis posteriorly, particularly at the C3/4 level.

Signed:    Dr James G Bodel”

1. It is apparent to the Appeal Panel from Dr Bodel’s report that he conducted a thorough examination of Mr Vadala, and the Appeal Panel adopts his findings from examination. Based on Dr Bodel’s findings, Mr Vadala does not meet the criteria as set out in clause 4.27 of the Guidelines for a finding of radiculopathy to be made. Dr Bodel did not find any loss or asymmetry of reflexes. Dr Bodel found Mr Vadala had normal grip strength. Dr Bodel found Mr Vadala did not have sensory impairment in a dermatomal distribution. Mr Vadala accordingly did not meet any of the major criteria set out in clause 4.27.

2. As both parties submitted, Mr Vadala’s impairment of his cervical spine, in accordance with clause 4.37 of the Guidelines, had to be assessed by reference to DRE Cervical Category III on account of Mr Vadala having had surgical decompression for cervical spinal stenosis. Because Mr Vadala had surgery at three levels of his cervical spine, a further 2% WPI is to be added in accordance with the modifiers specified in Table 4.2 of the Guidelines.

3. The Appeal Panel considers that there is to be nothing added under clause 4.33 of the Guidelines for the impact of Mr Vadala’s injury to his cervical spine has on his activities of daily living. This is because, as the Medical Assessor recorded, Mr Vadala has returned to work, is able to drive a car, is able to undertake housework, grocery shopping, and gardening and is able to mow his lawn. He has returned to his previous recreational activity of drumming and is singing for a band. He is able to shower and dress, with the exception of having a modest difficulty bending his knee up to get his socks on. That modest difficulty does not relate, in the Appeal Panel’s view, to Mr Vadala’s injury to his cervical spine.

4. It is the case that Mr Vadala had degenerative disease in his cervical spine prior to suffering injury. The investigations done after injury reveal long standing degenerative changes in his cervical spine associated with DISH and also calcification of the longitudinal ligaments particularly the anterior ligament. Hence, there were well established changes in Mr Vadala’s cervical spine at the time of injury. The evidence however reveals that Mr Vadala was not exhibiting any clinical sign due to that degeneration in his cervical spine prior to the event that occurred on 18 February 2020. The degenerative changes did not impede his function. It did not prevent his drumming in a band and undertaking heavy concreting work for Burwood Council.

5. The particular incident that occurred on 18 February 2020 triggered the signs and symptoms that Mr Vadala subsequently suffered from the longstanding degenerative change in his cervical spine. However, the surgery that Professor Van Gelder did has largely resolved the signs and symptoms Mr Vadala has from this degeneration.

6. When considering the deduction to be made under s 323(1) of the 1998 Act for the proportion of a worker’s impairment that is due to a pre-existing condition, the requisite point in time at which a contribution the pre-existing condition makes to the worker’s impairment is the time of assessment of the impairment. In other words, the contribution that the pre-existing condition made to the onset or occurrence of injury is not relevant, rather it is the contribution of the pre-existing condition to the worker’s permanent impairment as assessed at the time of assessment.[1] As said, in Mr Vadala’s case, his impairment from the pre-existing degeneration in his cervical spine has largely been ameliorated due to the surgery he had.

   [1] State of New South Wales (Central Coast Local Health District) v Page [2023] NSWSC 935 at [69]-[70],

7. The exact contribution the pre-existing degeneration in Mr Vadala’s cervical spine makes to his present impairment is too difficult to determine precisely. Give that, the Appeal Panel assumes, in accordance with s 323(2), the proportion of Mr Vadala’s permanent impairment relating to his cervical spine that is due to the pre-existing condition he had at the time of injury is 10%. That assumption is not at odds with the evidence, that evidence being that Mr Vadala has achieved substantial relief from that pre-existing condition as a consequence of the surgery he had.

8. The Appeal Panel also assesses the degree of permanent impairment of Mr Vadala relating to the injury in his right shoulder to be 7% WPI, based on the findings of Dr Bodel, which, as said, the Appeal Panel has adopted. The impairments with respect to the movements of Mr Vadala’s shoulder comprising that figure are as follows:

Shoulder Movement	Active ROM Measured RIGHT	Upper Extremity Impairment
Flexion	140°	3
Extension	40°	1
Adduction	30°	1
Abduction	100°	4
Internal rotation	60°	2
External rotation	70°	0
11%

1. The Appeal Panel notes that 11% upper extremity impairment converts to 7% WPI.

2. There is no evidence that indicates Mr Vadala had any pre-existing condition or abnormality in his right shoulder or had previously suffered injury to his right shoulder and consequently s 323 has no application with respect to the assessment of his permanent impairment relating to the injury to his right shoulder.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 5 June 2023 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:	W40/23
Applicant:	John Vadala
Respondent:	Burwood Council

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 Dr Farhan Shahzad 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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Cervical spine	18/02/2020	Chapter 4	DRE Cervical Category III Table 15-5, Page 392 of AMA 5	17%	one-tenth	15% (after rounding down from 15.3%)
2. Right Upper Extremity (shoulder)	18/02/2020	Chapter 2	Figure 16-40 Page 476 Figure 16-43 Page 477 Figure 16-46 Page 479	7%	0	7%
Total % WPI (the Combined Table values of all sub-totals)					21% WPI