Wall v Philip Leong Stores Pty Ltd
[2025] NSWPICMP 138
•4 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wall v Philip Leong Stores Pty Ltd [2025] NSWPICMP 138 |
| APPELLANT: | Adrian Wall |
| RESPONDENT: | Philip Leong Stores Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 4 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal by worker against 10% whole person impairment (WPI) Medical Assessment Certificate (MAC); whether the Medical Assessor (MA) had given adequate reasons for making a one fifth deduction regarding the left shoulder; Held – reasons adequate as they reflected the opinion of the appellant’s expert, referred to the prior radiological evidence, repeated the appellant’s history regarding the prior injury, and noted the appellant’s complaint of continuing symptomatology when he returned to work; Wingfoot Australia Partners Pty Ltd v Kocak, and El Masri v Woolworths Ltd applied; Cole v Wenaline Pty Ltd referred to; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 October 2024 Medical Assessment Certificates (MACs) were issued in respect of injuries to the purpose of nervous system and to the cervical spine and left upper extremity. Dr Ross Mellick was appointed to assess the injury to the nervous system, and the orthopaedic injuries were assessed by Medical Assessor Tommasino Mastroianni, who was also appointed as Lead Assessor.
On 19 November 2024 Adrian Wall lodged an application to appeal against the Lead MAC of Medical Assessor Mastroianni.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 13 August 2024 this matter was referred to the Lead Assessor (hereinafter “Medical Assessor”) for an assessment of whole person impairment caused by injury to the cervical spine and the left upper extremity on 9 January 2020.
Mr Wall was using a GPC truck which is a pallet moving machine. He had alighted from the machine when a high reach forklift collided with it. Mr Wall was thrown to his left side, hitting his head and left shoulder against the metal safety bars on the side of the GPC machine.
Some weeks later he was diagnosed at Nepean Hospital with post concussion syndrome and he underwent an MRI of the brain and cervical spine accordingly.
The cervical spine MRI revealed disc bulging and degenerative changes.
The Medical Assessor assessed a combined table value of 10% WPI which was made up 7% for the cervical spine less 1/10th pursuant to s 323(2) of the 1998 Act, leaving 6% , and 5% WPI for the left upper extremity from which 1/5th was deducted, leaving a total of 4%.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination notwithstanding one was sought by the appellant. The issue in the case concerned the deductions made pursuant to s 323 of the 1998 Act, the evidence for which was already within the evidence before the Medical Assessor. A further examination would not have been of assistance.
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 made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The sole ground was that the Medical Assessor had erred in making a deduction of 1/5th for the left shoulder assessment pursuant to s 323.
The MAC
In discussing previous accidents the Medical Assessor said:[1]
“He states that he injured himself in 2019 and had neck pain and left shoulder pain. He was treated with medication, physiotherapy and cortisone injections to the shoulder. I asked how he was prior to this injury in January 2020 he states that his neck was still aching and his left shoulder was sore but he had returned to work and cleared by his doctor to resume normal duties. He said he was put on a return to work program for the first week by the employer to see how he was coping. He said he was managing.”
[1] Appeal papers page 33.
At paragraph [5], the Medical Assessor noted relevantly on examination:
“● Man of stated age who appears a little apprehensive and walks keeping his left arm close to his body in a protective manner. He dresses and undresses slowly.
· ….
· Inspection of the shoulders reveals wasting over the left deltoid. Both shoulders were tender anteriorly, left greater than right. Right shoulder movements were normal whilst left shoulder movements were restricted.
Joint movement was measured with a goniometer.”
The diagnosis given by the Medical Assessor at [7] of the MAC was:
“As a result of the incident on 9 January 2020 Mr Wall sustained an injury to the neck, left shoulder and a head injury, aggravating pre-existing degenerative disease of the cervical spine and left shoulder.
My clinical diagnosis is cervical spondylosis, left shoulder tendonitis and rotator cuff disruption.”
in giving his reasons for assessment at [10] the Medical Assessor said:[2]
“DRE Cervical Category II is 5%-8% WPI. ADLs are affected by the neck injury, restricting him from doing physical work, attending to general house maintenance, gardening and domestic activities such as mopping and vacuuming. He is independent in self-care. I assess 2% WPI for ALDs. I therefore assess 7% WPI for the cervical spine.
There is evidence of pre-existing degenerative disease in the cervical spine. Guided by the history that he had some neck pain but that it was not significant when he returned to work, the injury sustained in the subject accident and the radiology reviewed, I have deducted one tenth, applying the provision of Section 323. This equates to 0.7% WPI. He therefore has 6.3% WPI which rounds off to 6%.
A one tenth deduction for pre-existing condition in my opinion is not at odds with the available evidence.
I have assessed 9% left upper extremity impairment for restricted shoulder movements. (2) (see 10b). As per the table in Section 5 of the MAC.
There is evidence of previous injury to the left shoulder which was still troubling him, though he was cleared to return to work and was managing. In my opinion the previous shoulder condition is contributing to the current impairment and guided by the patient’s history of still being troubled to some extent by the previous left shoulder injury and the radiology, I have deducted one fifth for pre-existing condition. 9% left upper extremity impairment equates to 5% WPI. One fifth of 5% is 1% WPI. I therefore assess 4% WPI as a result of the shoulder injury in 2020. In my opinion a one fifth deduction is not at odds with the available evidence.”
[2] Appeal papers pages 35 – 36.
In considering the reports of other medical practitioners at [10c] the Medical Assessor noted that Dr Utham Dias deducted 1/5th for Mr Wall's pre-existing condition in the cervical spine. The Medical Assessor also noted that Dr Dias had deducted 1/5th deduction for pre-existing condition of the left shoulder, with which the Medical Assessor agreed.
At [11] of the MAC the Medical Assessor said:
“a) In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) The worker has evidence of underlying degenerative disease both of the cervical spine and left shoulder.
In my opinion, previous symptoms in the neck and left shoulder are a result of the injuries sustained at work on 9 January 2020 and the underlying degenerative disease.
I am of the opinion that pre-existing degenerative disease is a component of the current impairment.
For the cervical spine I have deducted one tenth as outlined under 10a applying the provision of s.323 (2) as the extent of the deduction is difficult or costly to determine.
I have deducted one fifth for pre-existing condition regarding the left upper extremity.”
SUBMISSIONS
Appellant
Mr Wall surveyed the evidence and the findings of the Medical Assessor. He submitted that the error made by the Medical Assessor was that his reasons were no more than a “bare ipse dixit” without any reasons or exposure of reasoning provided.
It was argued that the Medical Assessor had given no explanation as to the extent of the deduction or explained why it should not be 1/10th, as he had applied in respect of the cervical spine.
Moreover, it was argued, the Medical Assessor did not explain why a 1/5th deduction was “not at odds with the available evidence”.
Mr Wall submitted that the Medical Assessor had to give reasons for his findings, referring to Vegan, which we have already mentioned.
Mr Wall submitted that even if the impairment assessment was based on clinical skill and judgment or intuition, the Medical Assessor was still required to provide an explanation and expose his “process of reasoning”. We were referred to Moy v Emoleum Services Pty Ltd[3] which further underlined the necessity for a Medical Assessor to give reasons “even if intuition from experience falls part of the process."
[3] [2015] NSWSC 1062.
Mr Wall stated that if the Medical Assessor had deducted 1/10th in respect of the left shoulder then the outcome would have been different. Mr Wall would have achieved a total of 11% WPI which was critical because it would have enabled him to receive compensation.
Mr Wall submitted that a re-examination should take place “to obtain evidence relevant to the assessment of the left shoulder/left upper extremity”.
Respondent
The respondent submitted that Mr Wall had paraphrased the reasons given by the Medical Assessor.
We were referred to the provisions of s 323 and the comments made by the Medical Assessor regarding the deduction.
The respondent referred to the well-known passage of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[4] noting that the High Court's comments applied equally to a Medical Assessor, relying on Western Sydney Local Health District v Chan.[5]
[4] [2013] 252 CLR 480.
[5] [2015] NSW SC 1968.
We were also referred to Doyle v QBE Insurance (Australia) Limited,[6] Vegan, and Farr v Insurance Australia Limited t/as NRMA Insurance Ltd,[7] Rahman v Insurance Australia Ltd t/as NRMA Insurance[8] and Allianz Australia Insurance Limited v Cervantes.[9]
[6] [2021] NSW SC 54.
[7] [2014] NSW SC 1435.
[8] [2022] NSWSC 1296.
[9] [2011] NSWSC 1296.
We were referred to authority for the well settled principles that reasons must be fairly read as a whole[10] and that reasons need not be lengthy.[11]
[10] D'Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201.
[11] Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55.
Having thus referred to relevant authority, the respondent submitted that the Medical Assessor was acutely aware of the requirements of s 323, particularly that the deduction needed not to be at odds with the available evidence. He did not merely adopt Dr Dias' 1/5th deduction (The author indicated “Dr Mastroianni”, but that was clearly a typographical error). but had weighed the history against the deductions made by Dr Dias and applied his own clinical judgment.
The respondent observed that Mr Wall had made his claim based on Dr Dias's assessments but that he now claimed the same assessment regarding the deduction for the left shoulder was incorrect.
DISCUSSION
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury(whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The submission that the Medical Assessor did not explain why the deduction for the left shoulder was not “at odds with the available evidence” can be seen to be inappropriate, as such a consideration applies to s 323(2) (although perhaps having more general application). The Medical Assessor has made no assumption as to the extent of the deduction for the left shoulder. He has rather applied s 323(1) and our enquiry is concerned with whether he has given adequate reasons for doing so.
It is settled law that in applying the provisions of s 323, a Medical Assessor must be satisfied that there was a pre-existing condition, and that it actually contributed to the impairment caused by the subject injury. That decision is not to be based on assumption or hypothesis.[12] In Cole, Schmidt J said at [38]:
“…Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
[12] Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole); Elcheikh v Diamond Formwork (NSW) PtyLtd [2013] NSWSC 365; Fire & Rescue NSW v Clinen [2013] NSWSC 609.
It can be seen that the Medical Assessor relied on the evidence before him. At [6] of the MAC he referred to the investigation of the left shoulder:
“MRI left shoulder
Thickness articular side anterior and supraspinatus tearing on a background of tendonitis. No muscle belly atrophy. Subacromial bursitis. Torn superior labrum.”
The MRI was dated 18 July 2019.[13] The Medical Assessor took a history that Mr Wall had injured his left shoulder in 2019 for which he made a workers compensation claim. He received medical treatment and was put on a return to work program when he resumed his employment. It was on the last day of this program that he suffered his injury on
9 January 2020.[14] As indicated above, the Medical Assessor said at [10a] of the MAC:“There is evidence of previous injury to the left shoulder which was still troubling him, though he was cleared to return to work and was managing. In my opinion the previous shoulder condition is contributing to the current impairment and guided by the patient’s history of still being troubled to some extent by the previous left shoulder injury and the radiology…”
[13] Appeal papers page 152.
[14] Appellant’s statement dated 19 July 2024, Appeal papers page 51.
Such an explanation satisfied the Medical Assessor’s obligation to give adequate reasons. Further, the apportionment given by Dr Dias regarding the left shoulder made Mr Wall’s task difficult in attempting to persuade us that the one fifth deduction was erroneous, as Dr Dias of course was Mr Wall’s own medico-legal expert. We regard Mr Wall’s emphasis on the Medical Assessor’s intuition as a reflection of that uphill task. Not only did the Medical Assessor agree with Mr Wall’s expert, but he differed from Dr Dias’s estimate of a one fifth deduction for the cervical spine, which indicates that he did indeed consider the evidence. We do not agree that intuition has played a significant part in the Medical Assessor's decision, and certainly not one that required any explanation, notwithstanding that Mr Wall laboured that point.
There is no dispute on the facts, and Mr Wall’s case was that they warranted only a one tenth deduction. The reasons given above satisfactorily explain why the Medical Assessor found the extent was greater. They exposed his path of reasoning[15] and were sufficiently detailed to comply with his obligation. In El Masri v Woolworths Ltd[16] Campbell J said at [50]:
“[A Medical Assessor’s] statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”
[15] See Wingfoot at [48].
[16] [2014] NSWSC 1344.
That standard has been met in this case.
The submission that the alleged error was significant because it prevented Mr Wall from reaching the threshold was self-evident and, with respect, unnecessary as it is not a relevant factor for the panel to consider.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 October 2024 should be confirmed.
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