Woodward Foods Australia Pty Ltd v Meredith
[2024] NSWPICMP 271
•3 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Woodward Foods Australia Pty Ltd v Meredith [2024] NSWPICMP 271 |
| APPELLANT: | Woodward Foods Australia Pty Ltd |
| RESPONDENT: | Justin Meredith |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 3 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; activities of daily living; whether Medical Assessor (MA) appropriately considered contribution from shoulder injury; whether MA undertook comparative exercise or on a hypothetical; section 323; whether MA applied section 323(2) appropriately and provided adequate reasons for doing so; whether MA appropriately considered pre-existing condition in cervical spine; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 November 2023, Woodward Foods Australia Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 October 2023.
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 assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
A delegate of the President was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Meredith (the respondent to this appeal) worked as a meat carter for a number of employers for a long period of time, including his last employer, Woodward Foods Australia Pty Ltd (the appellant). Based on the material in Mr Meredith’s statement and the history taken by the Medical Assessor, the work was particularly heavy, involving lifting of carcasses of up to 120kg and carrying them into a butcher shop.
The injury subject of these proceedings occurred on 6 January 2021, when Mr Meredith was carrying a forequarter of beef from his van weighing approximately 90kg. The common course involving physical injuries in the workers compensation space was pursued, including investigations being undertaken, physiotherapy commenced, and ultimately surgical intervention of a number of occasions without great result.
Mr Meredith eventually made a claim for lump sum compensation which resulted in proceedings being commenced in the Personal Injury Commission (Commission) on 2 May 2023, concerning an injury alleged to have occurred with the appellant.
There was a liability dispute that proceeded through the Commission’s dispute resolution pathway that resulted in the liability dispute being resolved by consent, with orders being issued on 4 August 2023. The consent orders made amendments to the Application to the nature of the injury claimed and resulted in the matter being referred to a Medical Assessor for assessment of injury to the left upper extremity (shoulder) and the cervical spine, with a date of injury of 6 January 2021.
The Medical Assessor assessed Mr Meredith on 4 October 2023 which resulted in the MAC currently under appeal, being an assessment of 15% whole person impairment as a result of injury on 6 January 2021.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Appellant’s grounds for appeal
The grounds for appeal pursuant to s 327(3) of the 1998 Act are set out above, but are, in summation, “incorrect criteria” and “demonstrable error”. The appellant relies on four grounds for appeal, being alleged errors. The first ground relates to both incorrect criteria and demonstrable error, whilst the remaining grounds are only relied on pursuant to s 327(3)(d), demonstrable error.
In summary, the four alleged errors in the assessment are:
(a) the Medical Assessor’s inclusion of the modifier for activities of daily living in the cervical spine, and the failure to verify the history given by Mr Meredith with other sources;
(b) alternatively, that the Medical Assessor overstated the assessment of activities for daily living;
(c) the Medical Assessor erroneously applied s 323(2) of the 1998 Act and failed to provide reasons for applying a one-tenth deduction in the shoulder, and
(d) the Medical Assessor erred in failing to make a deduction for previous injury or pre-existing condition or abnormality in the cervical spine pursuant to s 323 of the 1998 Act.
Respondent’s notice of opposition
In reply, the respondent provides submissions in relation to each of the four grounds for appeal as set out by the appellant, in summary that:
(a) the Medical Assessor identifies pain associated with the neck condition and there was an evidentiary basis for that conclusion, meaning there was no error in the inclusion of activities of daily living as part of the assessment;
(b) the injured worker’s domestic circumstances have no bearing on the assessment of activities of daily living, and the submission of the appellant is internally inconsistent;
(c) the Medical Assessor appropriately applied s 323(2) of the 1998 Act, and his reasons for doing so are sufficient, and
(d) the mere fact of a complaint of neck pain and a referral for an X-ray does not provide an appropriate basis to make a deduction under s 323 of the 1998 Act.
The Appeal Panel will deal with the specifics of the submissions of both parties in the consideration below.
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 Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 (Burton), the Court of Appeal confirmed that the Appeal Panel is not limited to the ground held by the President to have been made out pursuant to s 327(3), but cannot look for errors which are not part of the grounds of appeal (per Basten JA at [26]).
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel has an implied obligation 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 appellant raises four grounds for appeal which have been summarised above. Consistent with Burton, the Appeal Panel’s consideration is limited to the issues raised in the appellant’s ground for appeal.
Ground 1 – activities of daily living
This ground of appeal concerns the Medical Assessor’s assessment of activities for daily living. The appellant relies on both s 327(3)(c) - incorrect criteria and s 327(3)(d) - demonstrable error in relation to this ground.
The assessment of an injury on activities of daily living are set out in paragraphs 4.33 to 4.36 of the Guidelines. Paragraph 4.33 provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
The appellant also refers to the introductory chapter of the Guidelines which also discuss activities of daily living. Paragraph 1.24 provides a general explanation of the operation of activities of daily living in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA 5). The appellant draws particularly attention to the following sentence: “The impact of the injury on ADL is not considered in assessments of the upper or lower extremities.” This is relevant as the respondent was assessed for injury to his cervical spine and left shoulder.
The appellant also refers to paragraph 1.25 of the Guidelines, which states:
“The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports.”
The appellant submits that the available evidence supports that the restrictions set out by the Medical Assessor relevant to his assessment of activities of daily living are resulting from the left shoulder condition, as opposed to the cervical spine.
In support of this contention, the appellant refers to two allied health recover requests made by Mick McKerihan, physiotherapist. Those requests, the respondent submits, refer only to restrictions arising from the shoulder injury.
The respondent accepts that the modifiers for activities of daily living are not applicable to an assessment of the upper extremities, but submits that the Medical Assessor clearly identifies pain and restrictions associated with the neck condition that have had a significant impact on the respondent’s day to day activities and sleep. The respondent also refers to the less-than-forceful nature of paragraph 1.25 of the Guidelines, as well as the extensive supporting evidence consistent with the findings of the Medical Assessor, suggesting that the appellant’s submissions are misconceived.
The Medical Assessor takes a history of Mr Meredith’s social activities/activities of daily living on page 4 of the MAC:
“He lives in a house with his wife. Following his injury at work in 2021 the insurance company initially provided lawn mowing and cleaning up around the garden. This has since been ceased. He has attempted to return to mowing the lawns but does so over a much longer period and only a little part at a time. He is not able to do heavy work for long periods in the garden. With respect to domestic activities including cooking, cleaning, washing, and shopping he stated that his wife was doing most of this before the current injury. He reported though that due to his neck and shoulder problem he would not be able to return to heavy domestic activities if he lived alone.
When questioned about self-care he reported that he is independent in all areas of self-care.”
The Medical Assessor assessed 2% whole person impairment due to activities of daily living on page 6 of the MAC: “I believe a further 2% whole person impairment should be added due to his activities of daily living.”
The Appeal Panel accepts and agrees with the parties that any additional allowance for activities for daily living are not attributable to an assessment of whole person impairment of the upper extremities. The Guidelines make this clear. The assessment of permanent impairment is to be in accordance with the Guidelines pursuant to s 322(1) of the 1998 Act.
The Appeal Panel also acknowledges the challenge that exists where restrictions arise from injuries to multiple body parts, some of which attract an additional impairment allowance for activities of daily living, some of which do not. It must always be remembered that there can be multiple causes of damage suffered by a person: ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 at [27].
The exclusion of activities of daily living in the upper extremities, as set out in paragraph 1.24 of the Guidelines should be understood in the context of the method of evaluation of permanent impairment of the upper extremities, relying on range of motion assessment in AMA 5. Page 434 of AMA 5 explains:
“The functional evaluation measures the individual’s motor performance of activities of daily living or of a specific task within a set time frame…. The impairment ratings originally developed and retained in this chapter were developed to reflect the degree of impairment and its impact on the ability of the individual to perform activities of daily living.”
That is, the assessment of impairment of the upper extremities as set out in AMA 5 is an assessment of the impact of the injury on activities of daily living. Any additional allowance would therefore be otiose and is excluded by the Guidelines, as the impairment assessment is for that purpose.
There is nothing, however, in the Guidelines that prevents an allowance being made for activities of daily living where an injury to the upper extremity and the spine is being assessed.
There will be circumstances where it is more or less obvious that the impact on activities of daily living will be caused by the injury to the upper extremity as opposed to the spine. One such example, although at the extreme, would be a limb amputation. In circumstances where there are potentially multiple contributing causes to the impact on activities of daily living, the Medical Assessor must use their clinical judgement to assess the worker as they present on the day of assessment (paragraph 1.6 of the Guidelines), with deference to the guidance in paragraph 1.25.
The Appeal Panel agrees with the respondent that paragraph 1.25 of the Guidelines provides, at its highest, a suggestion of best practice. This is clear from the language of the paragraph as highlighted in the respondent’s submissions – that the impact “should be verified, wherever possible” (emphasis added). There are many circumstances where the comparative nature of an assessment of activities of daily living would not be possible due to the scarcity of evidence.
The appellant refers to two allied health recover requests to support their submissions, whilst the respondent extracts a series of records recording pain and issues arising from the neck (and, to be clear, in the shoulder). The respondent refers to various pieces of evidence that he submits counter the appellant’s contention.
In circumstances where there has been no actual assessment of activities of daily living in accordance with the Guidelines, but rather material prepared in the course of treatment of the respondent, the Medical Assessor was entitled to rely on the history he took during examination. It is also noted that the material on which the appellant relies occurred shortly after surgery on the shoulder:
(a) the first report dated 23 January 2022 in the context of surgery on 24 November 2021, and
(b) the second report dated 16 July 2022 in the context of mobilisation under anaesthesia on 13 June 2022.
Giving the timing of these reports it is understandable why the focus on the applicant’s restrictions and need for assistance concerned shoulder symptoms.
In circumstances where the Medical Assessor has taken an appropriate history of injury, a thorough record of his findings on physical examination, including in relation to activities of daily living, and there is ample evidence to suggest that the impact on activities of daily living arises from the neck (with a potential contribution from the shoulder), the Appeal Panel is not satisfied that this ground of appeal is made out.
The Medical Assessor has assessed the worker in accordance with the Guidelines, and in doing so has applied the appropriate criteria correctly. There is no demonstrable error apparent from an examination of the MAC.
Ground 2 – overstating the assessment of activities of daily living
The appellant refers to paragraph 4.35 of the Guidelines which sets out the amount of whole person impairment that can be added for activities of daily living. The appellant submits that the Medical Assessor based his assessment on a hypothetical situation whereby prior to injury, the respondent’s wife performed most of the relevant activities of daily living, and if Mr Meredith lived alone, he would not be able to perform those activities. The appellant submits that at a maximum, the increase for activities of daily living should be 1%, on the basis that the respondent does not live alone to create the need to return to heavy domestic duties, and in any event, the respondent can still cope with household tasks.
In response, Mr Meredith submits that his domestic circumstances have no bearing on the objective assessment of activities of daily living. The respondent goes on to point out that insurer had been funding domestic duties for a period, which had been withdrawn, and that the respondent could only deal with domestic activities on a restricted basis. The respondent submits that it is the assessment of restrictions imposed by the cervical spine injury on the injured worker that is the relevant question.
The assessment of activities of daily living involves four possible outcomes, in a range between 0-3% whole person impairment. If activities of daily living are affected, there are three possible impairments as set out in 4.35 of the Guidelines:
“Increase base impairment by:
3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
Paragraph 4.34 of the Guidelines provides that the consideration is a comparative one, between pre and post-injury functioning: “This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury.”
Here the Medical Assessor has increased the base impairment by 2% whole person impairment, for reasons that are set out above. There are a number of aspects of that assessment that can be drawn out as part of the Medical Assessor’s path of reasons:
(a) Mr Meredith had been provided with domestic assistance (lawn mowing and garden cleaning) for a period by the insurer but that had been withdrawn;
(b) Mr Meredith attempted to return to lawn mowing, but this takes a longer time, and is not able to do heavy work in the garden;
(c) Mr Meredith’s wife did most of the internal domestic duties such as cooking, cleaning, washing and shopping prior to his injury, and that he would not be able to do those activities if not for her, and
(d) he is independent in all areas of self care.
It is clear that the Guidelines consider that the assessment of activities of daily living is a comparative exercise, as set out in paragraph 4.34. However, that comparative exercise is in the context of the categories of impairment (which are to be used as a guide only), with consideration of the examples given in paragraph 4.35 of the Guidelines (which are examples only). The language of the Guidelines in giving the examples makes this clear. In each case, the Guidelines provides examples through the words “such as”, and the assessment of 2% whole person impairment includes the proviso of “or tasks of equal magnitude”.
The assessment of activities of daily living must therefore be considered in the context of examples given. There must be a comparison between pre and post-injury activity, but there may be circumstances where such a comparison cannot be undertaken based on the exact examples given in paragraph 4.35. The Guidelines envision such circumstance, particularly in the assessment of home care at 2% whole person impairment, which allows for the consideration of “tasks of equal magnitude”.
The above analysis is relevant as the appellant submits that the Medical Assessor has based his assessment on a hypothetical situation. The Appeal Panel does not agree with that submission on two bases. Firstly, the Medical Assessor has undertaken a comparative exercise in determining the activities of daily living; he has compared the actual circumstance before injury, whereby the respondent’s wife did most of the domestic activity before injury, and continued to do so after injury, but goes on to add that the respondent would not be able to return to domestic activities if not for the circumstance he is in (i.e. where his wife completes those domestic duties). Secondly, the Medical Assessor has not based his assessment on a hypothetical – it is based on the history taken from the worker during the examination, as required by paragraph 1.6 of the Guidelines.
Accordingly, the Appeal Panel is not satisfied that the MAC contains a demonstrable error in relation to this ground for appeal.
Ground 3 – the deduction of one tenth in the shoulder
The appellant submits that the Medical Assessor erred in his application of s 323 of the 1998 Act, in applying a one tenth deduction pursuant to s 323(2). This is said to be on two bases:
(a) that the Medical Assessor did not provide adequate reasons for why it was difficult of costly to determine the degree of impairment (per s 323(2)), and
(b) there was no absence of medical evidence available to determine the extent of impairment.
In support of this submission, the appellant refers to various clinical records, radiological evidence, and findings made in the MAC that support a deduction in excess of one tenth.
In response, the respondent refers to relevant caselaw considering s 323 of the 1998 Act, including Cole v Wenaline Pty Ltd [2010] NSWSC 78, Fire & Rescue NSW v Clinen [2013] NSWSC 629 and Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder).
The respondent submits that despite the lengthy recitation of clinical records relating to historical issues, there is no evidence of a symptomatic condition that prevented the worker from performing the work he did prior to his work injury. The respondent submits that the fundamental problem is that the appellant has proceeded on assumption that evidence of a pre-existing condition means a deduction must be applied, which misunderstands the statutory scheme.
The respondent refers to the reports of Drs Powell and Courtenay, and the Medical Assessor’s opinion of those reports, and notes that the Medical Assessor agrees with the opinion of Dr Powell, who also made a deduction of one tenth. The respondent submits that the Medical Assessor’s path of reasons is adequately revealed and there is no error demonstrated.
Within the MAC there are specific questions relating to previous injury or pre-existing condition or abnormality. The Medical Assessor responds to these questions on pages 7 and 8 of the MAC. He identifies the relevant issue for consideration being a pre-existing injury: “Pre-existing injury to the left shoulder in 2017 with a fracture of the distal end of the clavicle and a rotator cuff injury.”
He answers how the previous injury directly contributes to the current degree of impairment in the following way:
“With respect to the left shoulder injury he had evidence of chronic pain and discomfort as well as a chronic full thickness tear to the supraspinatus tendon from 2017 through until the current injury in 2021. I believe that it does directly contribute towards his current level of whole person impairment in the left shoulder.”
He then goes on to assess the contribution of that pre-existing injury as one tenth on the basis that it is difficult or costly to determine.
The above methodology is consistent with the approach outlined in Ryder, relied on by the respondent to the appeal:
“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.” (at [54])
See also the helpful summary of the steps to be undertaken in Pereira v Siemens Ltd [2015] NSWSC 1133 at [81]-[90].
The Medical Assessor has applied the statute correctly as set out in Ryder. He has identified a previous injury, he has considered whether the previous injury has contributed to the current degree of impairment (concluding that it has), and then has gone on to rely on
s 323(2) of the 1998 Act in assessing that contribution as one tenth. Section 323(2) provides:“(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 appellant takes issue with the Medical Assessor’s reliance on s 323(2). This subsection is sometimes referred to as the default position, or more accurately per the words of the section, an assumption. The appellant takes issue with the Medical Assessor’s reliance on s 323(2) on three bases:
(a) that he has failed to provide any or adequate reasons as to why it was difficult or costly to determine the impairment;
(b) there was no absence of medical evidence to make section 323(2) operable, and
(c) a one tenth deduction is at odds with the available evidence.
It is clear that a Medical Assessor has an obligation to provide reasons. This is set out in
s 325(2) of the 1998 Act. The standard which those reasons must meet is as set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [55] (noting that the Medical Panel referred to occupies a similar statutory position to a Medical Assessor):“The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The 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. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
Reasons must not be read with a fine toothcomb with an eye keenly attuned for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. Reasons must be read as a whole. The appellant refers to various shoulder issues as highlighted in the clinical records as well as the radiology in support of their contention that the extent of deduction made should have been higher.
When considering the reasons provided by the Medical Assessor as a whole, it is clear that he has considered those issues. He takes a history relating to the injury on page 2 of the MAC where he records previous pain in the shoulder in 2017 or 2018. He describes thickening of the subacromial bursa and prescriptions for Mersyndol Forte since 2018. He describes the surgery undertaken on 18 May 2021 and the physiotherapy following on from that. In terms of radiological evidence, the appellant refers to “objective evidence demonstrating the extent of the previous left shoulder rotator cuff tear (and other condition)”. These various scans are discussed by the Medical Assessor throughout the MAC.
The Appeal Panel is satisfied that the Medical Assessor has appropriately considered the relevant medical evidence as set out in his path of reasons. The appellant goes on to submit that the Medical Assessor has not explained why it was difficult or costly to determine the contribution from the previous injury.
Again, the consideration of whether sufficient reasons have been provided should start with a reading of the MAC as a whole. The MAC contains extensive discussion of the pre-existing injury. The Medical Assessor undertook the appropriate statutory steps in determining that the pre-existing injury contributed to the current degree of impairment. Determining the extent of that impairment requires clinical judgement, with the fallback test in s 323(2) being whether the extent of the deduction is difficult or costly to determine.
The “absence of medical evidence” is merely an example of a difficulty that may exist with determining the extent of an appropriate deduction. It may be that the medical evidence exists but is inconclusive. Importantly, where there is no contest as to the extent of deduction, the standard for reasons is lowered Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43]:
“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.”
The compound nature of s 323(2) must also be considered. The reason for including the default deduction of one tenth is “for the purpose of avoiding disputation”. In circumstances where the appellant’s medical expert (Dr Powell) made the same deduction as ultimately made by the Medical Assessor, there is strength in the suggestion that a one tenth deduction would “avoid disputation”. The Medical Assessor has considered Dr Powell’s report and discusses it on page 7 of the MAC, including the supplementary report in which Dr Powell makes a deduction. He explains that agrees with that finding, but also explains why he disagrees with the assessment of Dr Courtenay, who did not make a deduction.
The appellant finally submits that a one tenth deduction was at odds with the available evidence. The Medical Assessor has considered the available evidence and set out that material in great detail in the MAC. He is not required to refer to every piece of evidence or every clinical note, and an attack on the Medical Assessor’s reasoning process by picking apart a huge file and identifying individual references to prior issues, which have been consistently considered by the Medical Assessor in a wholistic way, is not an avenue to identify demonstrable error.
A fair reading of the Medical Assessor’s reasons makes it clear that he was aware of Mr Meredith’s previous injury and considered the available evidence in that regard. The appellant’s submissions have not identified that a deduction of one tenth is at odds with the available evidence.
In conclusion, the finding made by the Medical Assessor was open to him as an exercise of applying the appropriate statutory test, and his reasons disclose no error.
Ground 4 – the absence of deduction in the cervical spine
The appellant submits that the conclusion reached by the Medical Assessor is inconsistent with the available medical evidence, which demonstrates that Mr Meredith had an underlying cervical degenerative condition which contributed to his impairment.
The appellant refers to radiological evidence in support of this submissions, being an X-ray dated 14 October 2020, a further X-ray on 9 September 2021, and an MRI performed on 14 December 2021. The appellant also refers to the opinions of the qualified experts, submitting that each expert considered that Mr Meredith had an underlying cervical degenerative condition. The appellant notes that per the Certificate of Determination the parties reached an agreement that the injury was in the nature of an aggravation of a disease.
The respondent submits that a mere recording of a complaint of neck pain and referral for an X-ray would not provide an appropriate basis on which to make a deduction.
The principles for applying s 323 have been set out above, in respect of the consideration of ground 3. They apply equally to the present circumstances, although it is noted that here the Medical Assessor has made no deduction, rather than one tenth.
As the respondent suggests, the appropriate question is not whether there has been a complaint of pain, or a referral for an X-ray. The question is whether there is a relevant previous injury, or pe-existing condition or abnormality, and whether that condition contributes to the current degree of permanent impairment. The Medical Assessor considers this on page 6 of the MAC:
“There is no history of pre-existing degenerative change in the cervical spine before 2021 and no evidence of pre-existing impairment. I therefore believe that no deduction would be appropriate.”
The Medical Assessor also considered the opinion of Dr Powell:
“Dr Powell believed that the cervical spine condition was pre-existing and not associated with the injury in January 2021…. I note though that I do not agree with his cervical spine finding.”
The appellant also refers to the agreement of the parties in relation to the nature of the injury, suggesting that in some way that agreement is an acceptance that there should be a deduction made (or at least consideration of it). The appellant specifically submits that “any condition in the cervical spine that pre-dated or pre-existed the injury ought to be considered when assessing deductions applicable pursuant to section 323 of the 1998 Act”.
This is what the Medical Assessor has done. He has considered the material said by the appellant to be relevant, including the radiological evidence and the expert opinions. However, to take that one step further and suggest that a deduction must be made in circumstances where the accepted injury is in the nature of an aggravation of a disease is a submission that cannot be accepted. There is no legal basis for such a construction of s 323 of the 1998 Act.
The Appeal Panel is satisfied that the Medical Assessor has appropriately applied s 323 of the 1998 Act and his reasons for concluding that no deduction was appropriate were adequate. In those circumstances, the appellant has not demonstrated that the MAC contains a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 October 2023 should be confirmed.
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