Wilson v Australian Outdoor Living

DETERMINATION OF APPEAL PANEL
CITATION:	Wilson v Australian Outdoor Living [2024] NSWPICMP 249
APPELLANT:	Richard Terence Wilson
RESPONDENT:	Australian Outdoor Living
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	29 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 50% section 323 deduction for asymptomatic cervical degenerative pre-existing condition in a 66 year old worker; whether Medical Assessor (MA) had applied wrong test; whether error in not finding radiculopathy when other specialists allegedly had; Held – MA applied wrong test in finding that no cervical injury occurred; Skates v Hills Industries Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd considered and applied; no error in findings on radiculopathy; Wingfoot Australia Pty Ltd v Kocak considered and applied; Medical Assessment Certificate revoked and section 323(2) applied.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 December 2023, Richard Terence Wilson, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 November 2023.
The appellant relies on the following ground`1 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, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 13 October 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the cervical spine, lumbar spine and right upper extremity on
28 June 2018.
Mr Wilson was employed as a salesman for the respondent and was at an address in Wamberal to quote for an area of synthetic grass, when he slipped whilst walking on a sand pit and fell down onto his back.
Mr Wilson suffered injury to his right shoulder which was the subject of a surgical procedure in August 2018. A later MRI scan showed a partial failed rotator cuff repair.
The shoulder has since been treated non-operatively.
Mr Wilson also noticed the onset of lower back pain about two weeks after the injury. After the fall he started to get headaches and neck pain.
He came to cervical fusion in 2021 which improved the neck pain.

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 because although a re-examination was requested, the only error we found pertained to the s 323 deduction, the correction of which was concerned with evidence already before us.

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 MAC

The Medical Assessor noted that Mr Wilson had not had any previous work-related injuries or motor accidents resulting in injury. Specifically, Mr Wilson denied that he had had any problems with his cervical spine, his lumbar spine, or his right shoulder prior to the subject injury.
The Medical Assessor noted Mr Wilson was 71 years old. He had a history of high blood pressure and depression. Mr Wilson smoked daily and took a variety of medications.
The Medical Assessor noted the investigations before him at [6] of the MAC.[1]
[1] Appeal papers page 33.
Those investigations between 2018 and 2020 were all concerned with Mr Wilson’s right shoulder and his lumbar spine.
On 30 April 2020 the Medical Assessor noted an MRI of the cervical spine which showed degenerative changes most severe at C5/6 and C6/7 with neural exit foraminal narrowing bilaterally. There were further studies regarding a carpal tunnel condition. The Medical Assessor noted a further cervical spine MRI of 19 October 2020 which showed “slight reduction in central canal calibre at the level of the previous disc replacement and there is some minimal C6/7 broad-based posterolateral disc bulging on the left. No more focal disc abnormality has been demonstrated”.
The Medical Assessor also noted a CT scan of the cervical spine dated 15 March 2021 which demonstrated “Central canal stenosis C5/6 and C6/7. Multilevel bilateral bony foraminal stenoses as described. Marked degenerative disc disease with disc height reduction C5/6 and C6/7”.
In his summary the Medical Assessor noted that Mr Wilson was a 72-year-old male who suffered the referred injuries. He described the injury to the cervical spine in these terms:
“Cervical Spine strain, aggravation of underlying degenerative cervical spine. An MRI 30 April 2020 revealed severe degenerative changes of the cervical spine at C5/6 and C6/7 and neural exit foraminal narrowing. Surgery was apparently performed by Dr Coughlan for a C5/6 and C6/7 anterior cervical discectomy and fusion. Mr Wilson reported persistent neck pain but improvement since surgery. The physical examination revealed no evidence of a radiculopathy as defined by section 4.27 criteria.”
At [10] in describing the reasons for his assessment, the Medical Assessor assessed a 28% WPI in relation to the cervical spine, and 7% WPI for the right upper extremity.
The Medical Assessor found no impairment relating to the lumbar spine.
With regard to the question of deductions, the Medical Assessor stated:[2]
“Deductions
The following factors are considered in determining the extent that a pre-existing condition has resulted in the final impairment:
•       The mechanism of injury for 28 June 2018 involved a slip and a fall onto an outstretched right arm. The medical notes 27 June 2018 indicated right shoulder pain and there was no evidence of cervical spine pain after the subject injury. Further medical notes did not mention the presence of cervical neck pain in relation to the workplace injury, Based on the evidence I conclude that the mechanism of injury from 28 June 2018 was unlikely to alter any underlying pathology of the cervical spine.
•       Pre-existing condition: There was no evidence of a symptomatic pre-existing cervical spine condition. However, an MRI of the cervical spine 30 April 2020 revealed degenerative changes throughout the spine most severe at C5/6 and C6/7 with neural exit foraminal narrowing bilaterally. These changes were on the balance of probabilities not caused by the workplace injury and were not caused by Mr Wilson’s employment.
•       Occupational history: Mr Wilson started working for Australian outdoor living around 2015. His position description involved tasks which were unlikely to contribute to the degenerative condition of the cervical spine.
Considering the above evidence, I conclude that the pre-existing condition of a degenerative cervical spine significantly contributed to the current impairment, the decision for the proposed surgery, and any ongoing symptoms. Whilst the extent of the deduction is difficult or costly to determine, the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion, based upon the above evidence, I consider a ½ deduction is reasonable. 28% - 14% = 14% WPI.”
[2] Appeal papers page 36 at [10].
In considering the other medical opinions that were before him, the Medical Assessor noted the report of Dr Greggory Burrow of 23 February 2023. The Medical Assessor noted that
Dr Burrow did not make any deduction for the cervical spine condition.
The Medical Assessor said:
“…..I do not agree with this assessment, as there was evidence of significant degenerative changes of the cervical spine which was not caused by the workplace injury. With no evidence of an initial injury to the cervical spine due to the fall 26 June 2018, the degenerative change was pre-existing. Mr Wilson would not have required the surgical treatment undertaken but for the underlying pre-existing condition.”
The Medical Assessor noted that the medico-legal expert qualified for the employer,
Dr Richard Powell had made a deduction of 1/10^th and the Medical Assessor said:
“● I agree with Dr Powell’s assessment that the cervical spine pathology of multilevel spondylotic changes were pre-existing and well-stabilised. I agree with Dr Powell’s conclusions that there was clear evidence of significant pre-existing degenerative pathology involving the cervical spine and lumbar spine.
· Our assessment of the pre-existing proportion of the cervical spine differed. Based upon my analysis, the pre-existing proportion was significant and a 1/10th deduction was at odds with the available evidence.”
At [11] of the MAC the Medical Assessor confirmed his reasons for making a one half deduction from the assessment for the cervical spine, stating that the reasons for that deduction were outlined in the explanation of the calculation in [10].
The Medical Assessor assessed for the cervical spine a baseline impairment of 28% WPI from which he deducted one half to give 14%. That was combined with 7% awarded for the right upper extremity, there being no impairment awarded for the lumbar spine, making a combined table value of 20%.

SUBMISSIONS

The appellant

Mr Wilson relied on four issues to establish that the Medical Assessor had made demonstrable errors.
The first ground related to the deduction that the Medical Assessor made with regard to the cervical spine. Mr Wilson noted the baseline assessment of 28%, but submitted that the Medical Assessor had made factual errors relating to the mechanism of the injury and that the Medical Assessor had considered irrelevant factors in coming to that determination.
With regard to the mechanism of injury Mr Wilson submitted that the description of his injury as being “a slip and fall onto an outstretched right arm, failed to note that he had fallen heavily on his back”.
There was, it was submitted, “overwhelming evidence” that showed that the mechanism of injury involved a fall onto the back. This was confirmed, it was argued, by Mr Wilson’s statement and the history has taken by both Dr Tim Ho, Mr Wilson’s qualified medico-legal expert, and Dr Richard Powell who reported for the employer.
The irrelevant factors being improperly relied on by the Medical Assessor were said to be his opinion that the degenerative changes had not been caused by the workplace injury and that the employment duties were unlikely to contribute to the degenerative condition of the cervical spine.
Both those factors it was submitted were irrelevant and had no bearing on the application of s 323 of the 1998 Act and particularly in considering the provisions of s 323(2).

Ground 2

The second issue raised by Mr Wilson was that there was inadequate evidence to support the 50% deduction made and that indeed there was inadequate evidence to support anything more than the statutory assumption made by s 323(2).
Mr Wilson said that although he had a pre-existing cervical spine condition, it had been asymptomatic and the Medical Assessor recognised that fact. Mr Wilson said that he had been untroubled by his cervical spine and only began to demonstrate symptoms following his fall in the subject injury.
We were referred to s 323(2) and the statutory 1/10^th deduction that is thereby provided.
Mr Wilson submitted that the statutory assumption is not at odds with the available evidence relevant to the cervical spine. The investigations that had been taken some time after the subject accident, namely 30 April 2020 and 15 March 2021 demonstrated degenerative change.
We were referred to another Medical Appeal Panel decision where a 50% deduction had been upheld,[3] and the reasons it should be distinguished. We did not find the decision to be helpful, as such decisions are not binding, and each case depends on its own facts.
[3] Collinson v G M Kane & Sons Pty Ltd [2023] NSWPICMP 2.

Ground 3

The third issue raised by Mr Wilson was that the deduction made by the Medical Assessor was at such significant odds with the findings of all other medical advisors in the case that no reasonable assessor would have come to the conclusion reached by the Medical Assessor.
It was submitted that the finding that there is no residual radiculopathy in the cervical spine was grossly at odds with the findings of Dr Burrow and Dr Powell - both of whom, it was said, “find the presence of persisting radiculopathy and account for residual radiculopathy in their assessment of permanent impairment of the cervical spine”.[4] This finding was said also to be a demonstrable error.
[4] Appeal papers page 13 Appeal submissions [29].
Mr Wilson then referred to the Medical Assessor’s findings regarding the lumbar spine.
It was submitted that the examination findings by the Medical Assessor that there was no guarding, no asymmetrical loss of motion and no radicular signs of symptoms were at odds with the findings of both Dr Burrow and Dr Powell.
We were referred to the findings of both qualified experts and Mr Wilson submitted that the findings by the Medical Assessor had not been replicated by any other assessor. This it was argued made the Medical Assessor’s findings “grossly at odds” with the other medical evidence.

Ground 4

Mr Wilson submitted there was an inherent contradiction in the reasons given by the Medical Assessor. He found 28% WPI for the cervical spine injury and then his comments indicated that there had in fact been no injury because there is no evidence of cervical spine pain after the subject injury and the injury was unlikely to alter in any underlying pathology.
Mr Wilson then referred to the comments by the Medical Assessor about the discovery on
30 April 2020 through the MRI scan of degenerative changes which the Medical Assessor said on the balance of probabilities were not caused by the workplace injury or by employment.

Mr Wilson also referred to Cole v Wenaline Pty Ltd[5] and Ryder v Sundance Bakehouse[6] in submitting that the Medical Assessor had applied the wrong test in applying the provisions of s 323.
[5] [2010] NSWSC 78.
[6] [2015] NSWSC 526.

Respondent’s submissions

The respondent submitted that the Medical Assessor did take an accurate history including that the appellant fell onto his back and onto his outstretched arm.
As to ground 2, it was submitted that whether the Medical Assessor found the degenerative changes not to have been caused by the injury was irrelevant to the exercise that he had to carry out pursuant to s 323.
In looking at the reasons at a whole, it was clear that it was considering a proper application of s 323(1).
In response to ground 3 we were referred to the authorities as to the pre-eminence of the Medical Assessor in forming his clinical judgment.
We were referred to Marina Pitsonis v Registrar Workers Compensation Commission.[7]
[7] [2008] NSWCA 88.
It was submitted that in relation to ground 4, the appellant’s submissions were misconceived as there was no inherent inconsistency in finding that an aggravation of an underlying disease did not alter or progress that chronic disease whilst nevertheless causing the disease to produce additional symptoms.
We were referred to Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, 110 CLR 626.
In summary the respondent argued that there was ample evidence before the Medical Assessor which he considered and referred to. The Medical Assessor “discharged” his onus of referring to the evidence and explaining reasons for his assessment and there was thus no error in the methodology or application or relevant criteria and the assessment ought not be the subject of challenge simply because another doctor may have come to a differing view.

DISCUSSION

Section 323 of the 1998 Act provides relevantly:
“(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.”
In Skates v Hills Industries Ltd[8] the primacy of the terms of the referral were considered. In the Supreme Court, Adamson J had said at [73]:[9]
“While the Appeal Panel was correct to determine that the AMS had gone beyond the terms of the referral … the Appeal Panel should have reverted to the Registrar to obtain a referral which reflected the parties’ agreement as to the correction required…”
[8] [2021] NSWCA 142.
[9] [2020] NSWSC 837.
In the Court of Appeal, Basten JA said at [35]:
“Further, it is apparent that the referral by the Registrar was in a standard form, as was the application to resolve a dispute. There was no suggestion that these forms were not in appropriate terms. It follows that the primary judge was correct in finding that the Appeal Panel …. was correct in concluding that Dr Machart’s assessment contained demonstrable error in failing to be limited to the terms of the claim.”
Leeming JA said at [48]:
“The [referral] is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”

McCallum JA said at [82]:
“Since preparing this judgment, I have had the benefit of reading the judgment of Basten JA in draft. His Honour’s reasoning has prompted me to clarify my position as to the status of the Registrar’s referral. I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”
In the present case there is no suggestion that the terms of the referral did not reflect the parties’ agreement as to the nature of the medical dispute. The Medical Assessor was required to assess impairment caused by the injuries listed in the referral, amongst which was the cervical spine. It followed that injury to the cervical spine was an accepted injury, and one which the parties agreed should be assessed for a determination as to WPI caused by that injury.
The Medical Assessor described the workplace injury accurately in his summary at [7] of the MAC, “the aggravation of underlying degenerative cervical spine”.
However, the Medical Assessor then at [10b] contradicted himself when he addressed the topic of “deductions”. He firstly spoke about the mechanism of injury and commented that the contemporaneous “medical notes” did not mention any neck complaints.
We were perplexed as to why the Medical Assessor would consider these details, as they appeared to be relevant only to the question of liability.
Secondly, the Medical Assessor found there was no evidence of a symptomatic pre-existing cervical spine condition, with which we agree. However, he then said that the degenerative changes seen on the imaging “were not caused by the workplace injury and were not caused by Mr Wilson’s employment”.
Again, we were perplexed as to the relevance of this fact, as this was not in dispute.
Thirdly, the Medical Assessor found that Mr Wilson’s employment with the respondent since 2015 “involve[d] tasks which were unlikely to contribute to the degenerative condition of the spine”.
The Medical Assessor’s conclusion was that “the pre-existing condition of a degenerative cervical spine significantly contributed to the current impairment, the decision for the proposed surgery, and any ongoing symptoms”.
The conclusions of fact drawn by the Medical Assessor drew him out of the ambit of the referral. It is clear that his deduction was not made pursuant to s 323, despite the best arguments of the respondent. It was made by finding as a fact that the injury to the cervical spine had not been caused by employment.
As was pointed out by the appellant, the end result was an absurdity. The Medical Assessor found that no injury had happened, and therefore deducted one half of his assessment. Taken to its ultimate this means that, as no injury had occurred, no impairment could be assessed. It followed that therefore the Medical Assessor deducted 50% of nothing. (Indeed, in certifying a nil impairment for the lumbar spine, the Medical Assessor did deduct 10% from his 0% assessment).[10]
[10] Appeal papers page 39.
A further logical conundrum in analysing the reasons is that the Medical Assessor found that the degenerative condition of the cervical spine was unrelated to the workplace injury, yet deducted 50% of the impairment assessed for the workplace injury, as it “significantly contributed to the current impairment”.
The application of s 323 has been considered by a wide range of authorities. It is settled law that a three stage approach is required, as stated by Schmidt J in Cole v Wenaline Pty Ltd.[11]
[11] [2010] NSWSC 78 at [38].
Her Honour said:
“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 [previous injury, pre-existing condition or abnormality]. 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.”
The first step has not been challenged – that the level of impairment from the workplace injury (the “second injury”) was 28%. The next enquiry is whether a proportion of that impairment was due to the pre-existing condition.
The Medical Assessor was required to consider whether the pre-existing condition caused any impairment, and if it did, whether that impairment contributed to the impairment assessed for the workplace injury. It is nothing to the point that the degenerative condition was not caused by employment – it rarely is. The relevant question is whether the pre-existing condition created any impairment of itself which contributed to that caused by the workplace injury, which was not the degenerative condition itself, but rather its aggravation and its being rendered symptomatic.
The Medical Assessor failed in this task. Section 323(2) provides a statutory presumption that a 10% deduction be made when the extent of the deduction proves to be difficult or costly to determine because, for example, of the absence of medical evidence. The Medical Assessor agreed at [11] of the MAC that the extent of the deduction was indeed too difficult or costly to determine. However his opinion that “a deduction of one tenth is at odds with the available evidence” is unsustainable.
The available evidence established that Mr Wilson, 66 years old at the time of the injury, had hitherto been asymptomatic. There was no medical evidence that indicated that Mr Wilson was aware that he then had any problem with his cervical spine. The medical evidence on which the Medical Assessor based his opinion was circumstantial, as no investigations were performed of the cervical spine until 30 April 2020, and the Medical Assessor had taken a history that “after the fall [Mr Wilson] started to get headaches and neck pain”.
We note in passing that the evidence of the onset of Mr Wilson’s cervical pain was of the most general and uninformative nature. In his first statement of 6 October 2019 Mr Wilson did not mention his neck injury, save in his description of his “current condition”.[12] In his second statement dated 25 January 2001 again no mention was made of the neck injury,
[12] Appeal papers page 52.
Mr Wilson simply contenting himself to refer to the MRI of his cervical spine, without further explanation, on 30 April 2020.
We also note an inconsistent history from Dr Tim Ho, pan medicine and rehabilitation medicine physician, on 2 June 2021. Dr Ho recorded that at the time of the workplace injury there was “an acute onset of pain in the right shoulder, back and neck”.[13] The most careful history taken was that of Dr Richard Powell, orthopaedic surgeon, on 11 July 2023, who noted that Mr Wilson was not aware of neck pain initially, and that “headaches and then neck pain” developed in the weeks and months that followed.[14]
[13] Appeal papers page 596.
[14] Appeal papers page 649.
These inconsistencies were no doubt considered by the respondent when it agreed to allow the matter to be referred for assessment. They did not therefore constitute a basis for the Medical Assessor to make a finding that there had in fact been no cervical spine injury – or indeed that a one half deduction was called for.
Accordingly, the finding that one half should be deducted was based on an assumption, formed by unsupported conjecture and speculation, and itself was at odds with the evidence.
Further, the Medical Assessor failed to consider all the relevant evidence. Mr Wilson had been asymptomatic in his cervical spine and he was 72 years old when assessed by the Medical Assessor. The Medical Assessor did not take any cognisance of the fact that it was the incident that caused the cervical spine condition to become symptomatic. He did not explain how it was that throughout Mr Wilson’s working life, he had not previously suffered any symptoms. Mr Wilson had been an accountant, and a consultant, and had been working with the employer respondent since about 2015.
Whilst Mr Wilson did not have a work history of arduous work, he did have an active sporting history, including skiing, scuba diving and horse riding. He was also a drummer. These matters were relevant in the light of the fact that Mr Wilson reached the age of 66 without any awareness that he had a constitutional problem in the form of his degenerative changes. This was a matter that ought to have been taken into account.
In Elcheikh v Diamond Formwork (NSW) Pty Ltd[15] a similar situation pertained. The applicant in that case had an asymptomatic pre-existing condition of Scheuermann’s disease, which was accepted to be a condition that arose in adolescence. The applicant came to surgery following the workplace injury, and accordingly benefitted from the increased entitlements that was accorded in the Guides. The Medical Assessor (then known as an Approved Medical Specialist) deducted 50% pursuant to s 323.
[15] [2013] NSWSC 365.
The Medical Appeal Panel confirmed the deduction and the matter was appealed to the Supreme Court. At [91], Schmidt J said:
“[The Appeal Panel] noted, correctly, that the fact that the pre-existing condition had been asymptomatic did not preclude it from contributing to the impairment being assessed. Nor, however, could it be assumed that an asymptomatic condition did contribute to the impairment. Whether or not there had been any contribution had to be determined on the evidence, which included the competing specialist opinions on that matter, as well as various other evidence.”
At [124] her Honour said:
“…The legislative scheme required the medical specialist to determine Mr Elcheikh's deductible proportion, not by reference to his workplace injury, but rather by determining what contribution the pre-existing condition had made to the permanent impairment which had resulted from that injury.”
The Medical Assessor has applied the wrong test in his application of s 323 to the cervical spine injury. In all the circumstances the statutory assumption on 10% will be substituted.

Ground 3

The appellant’s submission that the Medical Assessor further erred because he did not find any “residual radiculopathy” in the cervical spine, suffers from the disadvantage that it relied on the opinions of other experts. Dr Gregory Burrow, orthopaedic specialist, found when he examined Mr Wilson on 22 February 2023 that “there is persistence of radiculopathy as per Guides paragraph 4.27…”[16]
[16] Appeal papers page 609.
Dr Powell when he examined Mr Wilson on 23 June 2023 noted “a good result has been obtained [by the cervical surgery] though [Mr Wilson] remains symptomatic with ongoing pain, stiffness and radicular symptoms.”
Chapter 1.6a of the Guides provides that a claimant is to be assessed as he/she presents on the day of the assessment. The assessment occurred on 9 November 2023, when the Medical Assessor found, as noted above, “the physical examination revealed no evidence of a radiculopathy as defined by section 4.27 criteria”.
It is no error for examinations to differ from different assessments. A person’s condition can alter with the effluxion of time. In Western Sydney Local Health District v Chan,[17] Adams J found that the functions of a Medical Assessor were analogous to those required of a Medical Appeal Panel, as explained in Wingfoot Australia Pty Ltd v Kocak.[18] Relevantly, a Medical Assessor is not concerned to opine on the correctness of other opinions – in this case, as to radiculopathy being present. He relied on his own medical experience and expertise in making the finding.
[17] [2015] NSWSC 1968 at [13].
[18] [2013] HCA 43; (2013) 252 CLR 480.
The submissions regarding the lumbar spine have the same difficulties, but with the added complication that Mr Wilson’s reliance on Dr Powell’s finding of “non verifiable radicular symptoms” was misguided, with respect. The identification of non-verifiable radicular symptoms does not indicate that a person has radiculopathy. Non-verifiable radicular symptoms are a criterion for a DRE category II assessment,[19] whereas properly identified radiculopathy has to comply with the specific criteria at Chapter 4.27 of the Guides. The Medical Assessor said such criteria were specifically not present.
[19] See AMA5 page 384.

Ground 4

The arguments advanced for ground 4 fall away, as the question of the causation of the cervical spine injury was never a matter for the Medical Assessor, as we have explained above.
For these reasons, the Appeal Panel has determined that the MAC issued on
20 November 2023 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:	W6987/23
Applicant:	Richard Terence Wilson
Respondent:	Australian Outdoor Living

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 Todd Gothelf 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)
Cervical spine	28.6.18	Chapter 4	Chapter 15 page 392	28%	1/10^th	25% (rounded)
Lumbar spine	28.6.18	Chapter 4	Chapter 15 page 384	0%	0%
Right upper extremity	28.6.18	Chapter 16	7%	nil	7%
Total % WPI (the Combined Table values of all sub-totals)					30%

[2024] NSWPICMP 249

29 April 2024