Widak v Hornsby Automotive Group Pty Limited
[2022] NSWPICMP 472
•18 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Widak v Hornsby Automotive Group Pty Limited [2022] NSWPICMP 472 |
| APPELLANT: | Richard Widak |
| RESPONDENT: | Hornsby Automotive Group Pty Limited |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 18 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Back injury at work in 2017 and accepted consequential condition from fall at home three years later leading to surgery; deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) made 50% deduction for pre-existing condition; MA considered that 2017 injury was minor but did not have regard to ongoing treatment; Held – extent of deduction difficult or costly to determine and one-tenth deduction was appropriate; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 August 2022 Richard Widak lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 July 2022.
Mr Widak relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Widak was employed by Hornsby Automotive Group Pty Limited (Hornsby Automotive) as a valet. On 4 July 2017 he tripped on stairs at work, suffering pain in his right ankle and low back. Mr Widak pleaded that the injury was the aggravation, acceleration, exacerbation or deterioration of a disease, though he said in his statement that he was active and had no symptoms before the injury. In August 2020, Mr Widak fell at home and Hornsby Automotive accepts that was a consequence of the injury at work.
The Medical Assessor was asked to assess Mr Widak’s whole person impairment (WPI) as a result of the injury to his lumbar spine in 2017 with an aggravation in mid-August 2020. The terms of the referral confirm that Hornsby Automotive’s insurer accepted that the fall in 2020 was a consequence of the original injury.
The Medical Assessor assessed Mr Widak in DRE Lumbar Category III and allowed 2% for the impact of the injury on his activities of daily living and 1% for the second level operated on, resulting in 23% WPI. He deducted one-half under s 323 of the 1998 Act, resulting in an assessment of 11%.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we agreed that the Medical Assessor had made a demonstrable error in the application of s323 of the 1998 Act. We determined that it was not necessary for the worker to undergo a further medical examination because there is sufficient evidence in the file to determine the appeal.
EVIDENCE
We have 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.
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. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by Mr Young of counsel, Mr Widak submitted that the Medical Assessor was in error to make such a large deduction under s 323 when his lumbar spine condition was asymptomatic before the injury in 2017. He said that the Medical Assessor failed to have regard to the evidence that the need for surgery arose from a fracture to the L2 vertebrae and to the evidence about his continuing symptoms after 23 August 2017. Mr Young argued that the Medical Assessor failed to disclose his path of reasoning for disagreeing with the s 323 deductions made by the independent medical examiners qualified for Mr Widak and Hornsby Automotive.
Mr Widak sought re-examination.
In reply and in submissions prepared by its solicitor, Mr Maakasa, Hornsby Automotive submitted that the Medical Assessor provided clear and cogent reasoning for the s 323 deduction. It submitted that it was immaterial that the condition was asymptomatic before the injury and that the Medical Assessor was not required to have regard to the surgery because no claim for compensation had been made in respect of it. Hornsby Automotive said that, when read as a whole, the MAC showed that the Medical Assessor had disclosed his path of reasoning with respect to s 323 and that he was not required to provide reasons for agreeing or disagreeing with every report.
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[1] 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.
[1] [2006] NSWCA 284.
The MAC
When taking a history of the injury and its aftermath, the Medical Assessor wrote:
“Mr Widak recalls having developed discomfort in his low back going down his right leg ‘a couple of days later’, and having had ongoing problems since then.
As far as treatment was concerned he was treated conservatively initially, was referred to a chiropractor and an exercise physiologist, and he also took tablets.
He continued to work with intermittent breaks (see below), and finally stopped working in June 2018. He informs me that he still had pain in his back and right lower limb at the time, but in mid-August 2020 while at home, he says he was walking in the kitchen and the floor was moist, and his right leg simply ‘gave way’ and he slipped and fell.”
The Medical Assessor noted that in 2020 investigations showed a fracture of the L2 vertebrae. He summarised the investigations:
“I note that an MRI of Mr Widak’s lumbar spine on 31 January 2018 showed multilevel disc degenerative changes with a Grade II spondylolisthesis of L5 on S1 with bilateral pars defects. There was also a right sided disc prolapse at the L5/S1 level and a central bulge at L4/5.
I note that x-rays taken after his fall in August 2020 showed a wedge compression fracture of L2 and post-operative films showed the fusion from L1 to L3.”
The Medical Assessor summarised his diagnosis:
“Mr Widak originally developed discomfort in his low back region following a fall up some stairs at work on 4 July 2017. As noted his back and leg symptoms seem to have come on a few days after this fall. Mr Widak feels that he has had significant ongoing problems with his back and right lower limb ever since then, and as noted he feels that in mid-August 2020 when walking at home in the kitchen, his right leg gave way as a result of which he sustained a compression fracture of his second lumbar vertebra. Because of this he had a lumbar fusion from L1 to L3 with a very satisfactory result.
He has however been left with significant ongoing constant symptoms in his low back with intermittent referred pain down his right lower limb.
As noted investigations show a longstanding Grade II spondylolisthesis of L5 on S1 with multiple areas of disc space narrowing.
As noted because of his fall in August 2020, he came to a two level lumbar fusion and it would seem that this has been regarded as a consequential injury noting that the fall occurred when his right lower limb gave way.”
The Medical Assessor summarised other medical evidence in the file. He stated his disagreement with Dr Bodel’s deduction of one-tenth under s 323. He noted that Dr Nair, qualified for Hornsby Automotive considered that the fall at home was not related to work. He said:
“There are reports of Mr Widak’s treating general practitioner, Dr B Raja of 25 July 2017, some three weeks after the fall at work, noting that Mr Widak’s right ankle was ‘worse’, and that ‘back better’. In his report of 9 August 2017 he notes that right foot pain is improving and in his report of 24 August 2017 notes that Mr Widak has ‘slight niggling pain in the back on and off, otherwise fine’.
In his report of 10 October 2017 he notes that Mr Widak’s pain has returned on the right side of his low back and right ankle region, and that getting in and out of the car was painful.
A further entry on 11 April 2018 notes that Mr Widak was working two to three hours extra every day to cover for one of his colleagues, and was then going on holidays to Nelson Bay for a week. The general practitioner notes ‘back and foot pain much better’.
I note that there is a report of A Gum (chiropractor) of 23 August 2017 noting that Mr Widak’s low back and ankle pain following his fall has ‘…shown a significant progressive improvement, now total full pre-injury capacity’. He also indicates that in his opinion Mr Widak is ‘okay to undertake full pre-injury duties as tolerated’. That is, within of eight weeks of Mr Widak’s injury.”
The Medical Assessor set out his reasons for the s 323 deduction:
“As noted I have elected to make a one-half deduction of Mr Widak’s total impairment as a result of his longstanding congenital and constitutional condition of his lumbar spine on the basis of a Grade II spondylolisthesis with pars defects, as well as disc degenerative changes at multiple levels. This gives 11.5% which rounds to 12% WPI. The final impairment is therefore 11% WPI.
My reasons for suggesting this figure are as follows:
- Mr Widak only developed discomfort in his low back region a few days following the fall, suggesting that any injury to his low back at the time was relatively minor. I would certainly accept that this injury would have aggravated his longstanding and very significant spondylolisthesis.
- As noted from his general practitioner’s reports there is significant improvement in his symptoms, and at one stage on 25 July 2017 noting that his back pain was better, that is three weeks after his injury, and on 25 August 2017 noting that he was getting niggling back pain.
- As noted the chiropractor’s report of 23 August 2017 indicated that Mr Widak had improved significantly and was fit for full pre-injury capacity.
- In my opinion then, Mr Widak’s ongoing symptoms are due to his congenital spondylolisthesis which was aggravated at the time of his fall in July 2017. It is certainly reasonable to suggest that if not for the fall he may well have continued in an asymptomatic fashion.
- As noted it seems to be accepted that his fall in mid-August 2020 was as a result of his right leg giving way, on the basis of a consequential condition.”
Medical evidence
The Medical Assessor noted the entries in Mr Widak’s general practitioner’s notes immediately after the injury until an apparent improvement a few weeks after the injury. The history in Mr Widak’s statement is that he returned to work soon after the injury and was treated by a chiropractor, Mr Gum. Mr Widak said that his pain persisted until his consultation with Dr Raja in October 2017 and again in January 2018.
Dr Raja’s notes support Mr Widak’s statement. In August 2017 Dr Raja noted that Mr Widak had a niggling pain in his back. Mr Widak returned to see Dr Raja on 10 October 2017 and said the pain had returned and was worsening. Dr Raja issued a workers compensation certificate. Hornsby Automotive’s insurer asked Dr Raja for details of the recurrence. Dr Raja said on 13 October 2017 that Mr Widak experienced a flare up of mechanical lower back pain and that it was related to the injury on 4 July 2017 because it was in the same anatomical site with similar symptoms. The chiropractor, Mr Gum, expressed a similar opinion in a report dated 18 October 2017.
On 17 January 2018 Dr Raja participated in a case conference with a representative of the insurer and the chiropractor. Dr Raja said that Mr Widak’s pain had improved and a pre-injury duties certificate was given in August 2017 though Mr Widak had a recurrence on 10 October 2017 and have been seeing the chiropractor since. An MRI scan was ordered.
The MRI scan dated 31 January 2018 was reported by Dr Chai as showing grade 2 anterolisthesis of L5 on S1, spondylitic change at all levels of the spine and disc pathology with areas of canal and foraminal stenosis at L4/5 and L5/1. After the scan, Mr Widak was advised to continue with his exercise program. At a case conference on 14 March 2018, Mr Widak said that he was improving with chiropractic treatment and a program with an exercise physiologist. At that time, Mr Widak was working.
As the Medical Assessor pointed out, Mr Widak was working overtime to cover for a colleague for a short period before a holiday in April. At another case conference on 30 May 2018, Mr Widak confirmed that he had experienced overall improvement though had flare ups from time to time. Dr Raja noted that Mr Widak continued with home exercises and was to see the chiropractor that day. Dr Raja noted that Mr Widak had reached a stage where little improvement could be expected and that “realistic expectations” were discussed. Shortly after that, Mr Widak ceased work when he was offered full time work.
From that time, Dr Raja’s notes record flare ups of pain and confirm that Mr Widak continued to see the chiropractor. From late 2018, Dr Raja regularly recorded that the pain radiated to Mr Widak’s right leg.
In March 2019, a representative of the insurer noted that the claim would “close” as it was two years since the injury and asked Dr Raja to certify Mr Widak fit for pre-injury duties. Mr Widak was referred to Dr Atkinson, orthopaedic surgeon. In April 2019, Dr Raja referred Mr Widak to a new chiropractor closer to his home.
Dr Atkinson reported to Dr Raja on 12 April 2019. She recorded the history of the injury and Mr Widak’s problems since that time, including pain down the right leg in the L5 distribution. She recommended a “selective nerve root block.” Mr Widak said that Dr Atkinson recommended surgery for “my pinched nerve” which he was reluctant to undergo. There is no reference to the outcome of any nerve root block in the file.
Mr Widak continued to see Dr Raja, making consistent complaints throughout 2019 until the conclusion of the notes provided in the file.
Mr Widak later consulted another general practitioner whose reports are not in the file. In his second statement dated 15 March 2022, Mr Widak said that he had continued to experience pain and restriction of movement in the period from April 2019 to July 2020. He felt unable to place weight on his right leg and had intermittent sharp pain down his right leg. In mid-August 2020 he was at home when he felt sharp pain then numbness in his right leg, causing him to fall. Dr Owler’s notes reveal that Mr Widak was admitted to Sydney Adventist Hospital in August 2020 after a fall in which he fractured his L2 vertebrae. Dr Owler noted that Mr Widak’s spine was quite ankylosed and suspected he had diffuse idiopathic skeletal hyperostosis (DISH). Mr Widak underwent a fusion from L1 to L3.
Medico-legal reports
Dr Bodel saw Mr Widak at the request of his solicitors both before and after the fall in August 2020. In his report dated 21 August 2019 he noted that Mr Widak complained of pain over the lower part of the back and the right buttock and that it sometimes radiated as far as his ankle. Dr Bodel considered that the well-established degenerative disease and large Grade II spondylolisthesis were contributing to his overall level of impairment. Dr Bodel assessed Mr Widak’s permanent impairment and deducted one-tenth under s 323.
Dr Bodel prepared a second report dated 18 June 2021 in which he said that Mr Widak fell awkwardly at home in August 2020 because of weakness in his right leg, which gave way while he was walking up stairs. He also assessed 23% WPI in respect of the lumbar spine and deducted one-tenth under s 323 for the same reason as in his first report.
Dr Nair also saw Mr Widak before and after the fall at home. In his first report dated 3 December 2019, he considered that Mr Widak’s symptoms were in a L5 dermatomal pattern, consistent with the lumbar spondylolisthesis. He considered that the symptoms were due to degenerative and constitutional causes and “somewhat arbitrarily” assigned 20% WPI to the effects of the fall in 2017.
Dr Nair saw Mr Widak again and reported on 25 January 2022. He had a history that Mr Widak slipped on the wet kitchen floor in mid-August 2020 and was diagnosed with an L2 vertebral body fracture resulting in an L1 to L3 spinal fusion. He said that the L2 fracture was suffered at home so was not work related. He did not make an assessment of permanent impairment.
Despite Dr Nair’s opinion, the insurer accepted that Mr Widak suffered a consequential condition in 2020 as a result of the injury in 2017.
Legal principles
Section 323 of the 1998 Act 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.
Note—
So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
In Cole v Wenaline Pty Ltd [2] (Cole), Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was warranted because of surgery which had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[3]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. 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.[4]”
[2] [2010] NSWSC 78.
[3] At [29]-[30].
[4] At [38].
In Ryder v Sundance Bakehouse[5] (Ryder) Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[6]
[5] [2015] NSWSC 526 at [45].
[6] At [54].
Mr Widak said that he was active before the injury in 2017 and that his condition was asymptomatic. In Vitaz v Westform (NSW) Pty Ltd[7] Basten JA (with whom the other members of the Court agreed) said, after referring to authorities including Cole:
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
[7] [2011] NSWCA 254.
The Medical Assessor did not have regard to those principles in making a deduction of 50% from the assessment of permanent impairment.
The Medical Assessor was required to assess Mr Widak as he presented on the day of the examination, including the result of the surgery. His primary assessment of WPI is appropriate.
The Medical Assessor gave four reasons for his s 323 deduction. The reasons did not engage with the evidence in the file. The first reason was that Mr Widak developed discomfort a few days after the fall. While that may be the history the Medical Assessor recorded, the evidence does not support that statement – Dr Raja recorded on 5 July 2017 that Mr Widak had fallen on the previous day and suffered pain in his low back.
The Medical Assessor’s second reason was that there was significant improvement over July and August 2017 and that Mr Widak was fit for pre-injury duties. The Medical Assessor did not have regard to the nature of those duties which were part time and relatively light, consisting of customer service, parking cars safely and taking care of car keys.
Dr Raja’s notes in July and August 2020 do suggest that Mr Widak’s condition was improving but the MA did not consider the later evidence that the pain recurred in October 2017 and continued. He did not consider the references in Dr Raja’s notes to the regular chiropractic treatment Mr Widak continued to undergo after he returned to work.
It should be noted that Mr Widak pleaded his injury as the aggravation, acceleration, exacerbation or deterioration of a disease. The MRI scan showed advanced degenerative changes at all levels of Mr Widak’s lumbar spine. The evidence about the injury in July 2017 shows that Mr Widak suffered low back pain which, after a period, radiated down his right leg in the L5 distribution.
Once the medical history as a whole is considered, it is clear that there is no basis for the size of the deduction made by the Medical Assessor and that the reasons he gave cannot support the deduction. That is particularly so when it is accepted that the consequential condition in 2020 was suffered because Mr Widak’s right leg gave way. That could only be as a result of the ongoing effects of the 2017 injury, being the aggravation of the changes in Mr Widak’s spine as disclosed in the medical evidence.
Mr Widak suffered significant pre-existing degenerative changes and he suffered L5 on S1 spondylolisthesis, but he said he had no symptoms before the 2017 injury. The Medical Assessor accepted that his condition may have remained asymptomatic if not for the fall. It is not uncommon for spondylolisthesis not to be diagnosed until an injury is suffered.
The pre-existing conditions of degenerative changes and spondylolisthesis clearly contributed to the impairment assessed in 2022 and it is appropriate to make a deduction under s 323. The Medical Assessor’s deduction of one-half was too high when all of the medical evidence is considered. The extent to which the pre-existing condition contributed to Mr Widak’s impairment is not possible to determine. In those circumstances, the appropriate deduction is one-tenth.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 July 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W1804/22 |
Applicant: | Richard Widak |
Respondent: | Hornsby Automotive Group Pty 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 Dr Roger Pillemer 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 WorkCover Guides | 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) |
| Lumbar spine | 4 July 2017 aggravated in mid August 2020 | Chapter 4 Pages 24-29 | Chapter 15 Page 384 Table 15-3 | 23% | 1/10th | 21% |
| Total % WPI (the Combined Table values of all sub-totals) | 21% | |||||
0
4
0