Youth Off the Streets Ltd v Gardiner

DETERMINATION OF APPEAL PANEL
CITATION:	Youth Off The Streets Ltd v Gardiner [2024] NSWPICMP 660
APPELLANT:	Youth Off The Streets Limited
RESPONDENT:	Darran Gardiner
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	17 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) properly applied section 323; no deduction made; Held – MA failed to assess left lower extremity as a separate body part but had considered it as part of assessment of radiculopathy; re-examination required; radiculopathy present; no assessable impairment of left lower extremity; evidence of a pre-existing condition contributing to impairment; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 May 2024, Youth Off The Streets Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Brian Stephenson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 April 2024.
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.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Gardiner was injured when he attempted to move a laptop storage facility, weighing 150 to 200kg by himself. The item had been delivered incorrectly and he was attempting to relocate it. He developed lower back pain with radiating leg pain. He was eventually referred for a CT scan which revealed a disc injury at L4/5 level.
The injury ultimately led to surgery, being a lumbar discectomy and rhizolysis at L4/5 level, with good result. Mr Gardiner also had some localised tendinitis in the left Achilles tendon.
Mr Gardiner brought proceedings in the Personal Injury Commission (Commission) claiming lump sum compensation totalling 16% whole person impairment, for injuries to the lumbar spine, left lower extremity and scarring. The matter was referred to a Medical Assessor who assessed 16% whole person impairment. The appellant appeals against assessment on a number of different bases.

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 the worker should undergo a further medical examination because the Appeal Panel were satisfied that the MAC contained a demonstrable error in a number of respects, particularly in respect of the application of s 323 of the 1998 Act, and the Medical Assessor’s assessment (or lack thereof) of the left lower extremity.
In circumstances where the Medical Assessor was referred the left lower extremity for assessment, but assessed that body part as arising from radiculopathy, inconsistent with the Guidelines, it was necessary for a Medical Assessor member of the Appeal Panel to conduct a re-examination.

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.

Further medical examination

Drew Dixon of the Appeal Panel conducted an examination of the worker on 22 August 2024 and reported to the Appeal Panel. The examination report is included below under findings and reasons.

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. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant relies on two grounds of appeal. The first concerns the application of s 323 of the 1998 Act. The appellant submits that the Medical Assessor’s conclusion that there was “no, not applicable” previous injury or pre-existing condition or abnormality is a demonstrable error. The appellant refers to the evidence before the Medical Assessor in support of the existence of a pre-existing condition, being the referral to A/Prof Jaeger, the radiological evidence produced as a result of that referral, and the history recorded in the report of Dr Wallace.
The second ground of appeal concerns the assessment of ongoing radiculopathy. The appellant submits that the conclusion reached by the Medical Assessor was contrary to all of the evidence of the question. The appellant also referred to the Medical Assessor’s failure to assess the left lower extremity (for a left Achilles tendinitis injury), submitting that the Medical Assessor failed to understand the terms of the referral.
In reply, the respondent worker sets out the legal framework for the assessment, including with reference to some general propositions about the provision of reasons, and the common law interpretation of the grounds for appeal being “incorrect criteria” and “demonstrable error”.
In respect of the first ground of appeal, the respondent submits that the gravamen of the appellant’s case should be rejected. The Medical Assessor was acutely aware of the prior back complaints. A deduction can only be made if the relevant pre-existing condition or abnormality contributed to the current impairment, and that the only inference that can be drawn from the Medical Assessor’s reasons is that at the time of the work injury, the prior injury was not symptomatic.
In respect of the second ground of appeal, the respondent submits that the suggestion that the worker had persisting radiculopathy is against “all” of the evidence is incorrect. The only evidence, at the day of examination, was that there was radiculopathy. There is no real challenge to the Medical Assessor’s reasoning, findings, or conclusions, and the Medical Assessor was at pains to explain why he considered the worker had radiculopathy, despite what was found by other doctors.

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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 appellant raises two grounds of appeal. The Appeal Panel will deal with each ground as presented in the appellant’s submissions.

Ground of appeal 1 – deduction

The appellant submits that the Medical Assessor was in error with respect to the decision to make no deduction pursuant to s 323 of the 1998 Act. The appellant refers to evidence in support of this conclusion, submitting that it is unarguable based on the evidence before the Medical Assessor that the worker suffered a significant pre-existing lumbar spine condition.
Section 323 provides a statutory basis for the making of a deduction for a previous injury or pre-existing condition or abnormality, and provides:
“(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.”
Section 323 of the 1998 Act has been the subject of judicial scrutiny in many cases over the years. The respondent refers to some general principles in relation to deductions whilst the appellant refers to specific authority concerning an asymptomatic condition.
In Cole v Wenaline [2010] NSWSC 70 and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365, Schmidt J established a three-step test for the appropriate consideration of s 323 of the 1998 Act. The first step is to determine the extent of impairment following the work injury. The second is to determine whether a proportion of that impairment is due to a previous injury, or pre-existing condition or abnormality. The final step is to determine the extent or proportion of that contribution.
Campbell J, in Ryder v Sundance Bakehouse [2015] NSWSC 526 provides a summary of the section:
“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])
In Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 254 it was made clear that a deduction can be made for an asymptomatic condition:
“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.” (at [43])
The Medical Assessor’s reasons for making no deduction are brief. On page 4 of the MAC, he states: “There is no deductible proportion in the absence of previous injury, condition or abnormality.” In discussing the opinion of A/Prof Jaeger, who provided a report on behalf of the respondent, he states:
“I wish to advise that I do not agree as there are clear signs of radiculopathy found at this assessment - that is my comment. My comment is that there are clear signs of radiculopathy present at this assessment and hence a 15% WPI and there is convincing evidence of any significant pre-existing condition. He was able to work as a teacher.”
The parties have approached this paragraph on the basis that a typographical error exists, in that the Medical Assessor intended to state that there was “no convincing evidence of any significant pre-existing condition”.
The Appeal Panel is satisfied that the above conclusion is in error. Whilst the Medical Assessor’s reasons could be said to be broad enough to support his conclusion that no deduction should be made, there is evidence of a pre-existing condition that predates the work injury. Mr Gardiner acknowledges this in his statement where he says “In relation to my previous back injury, I hurt my back in or about 2011 while I was working at St Marks College…. I took time off work and completely recovered with conservative treatment”.
Initially, the respondent’s independent medical expert Dr Bodel had no history of this back injury. In his supplementary report, he records:
“I am now aware of the previous injury in 2011 but he recovered from that and was asymptomatic for many years until the injury which is the subject of this claim. That is not the basis for a deduction for pre-existing impairment.”
On the other hand, Dr Wallace made a deduction of 1/10^th due to pre-existing symptomatic degenerative disease at the lumbar spine. In an updated report, Dr Wallace took a full history of the previous back issues suffered by Mr Gardiner, making a deduction of 3.6%.
The clinical records and reports of A/Prof Jaeger provide a slightly different picture to that set out in the applicant’s statement and the initial (and even subsequent report) of Dr Bodel. The clinical record of 7 June 2016 records “left lower back pain since 2000 following injury at work – picked up coil and twisted. L4/L5/S1 disc herniation?”. At that point the applicant wanted a surgical opinion and an MRI, which was undertaken on 11 June 2016, a bit more than a year prior to the work injury. Earlier, in February 2012, a back strain is recorded, including muscle spasms.
A/Prof Jaeger treated the worker prior to and following his work injury. Relevantly, he provides a report dated 25 July 2016 in which no radicular symptoms were found. He records “increasing episodes of quite troublesome lower back pain”. Degenerative changes were found at the three lowest disc levels, but surgery was not recommended at that point.
There is some dispute between the parties as to the inference that can be drawn, or otherwise, from the Medical Assessor’s conclusion in relation to s 323. The appellant submits that the inference is that there is no pre-existing injury, abnormality or condition in the lumbar spine at all. The respondent submits that it is not the only inference that can be drawn, or the likely one.
The Appeal Panel agrees that this inference is not necessarily the correct or open one on consideration of the MAC as a whole. That does not mean that the Medical Assessor’s conclusion does not contain a demonstrable error.
It is the Appeal Panel’s view that the Medical Assessor’s conclusion is that there was a pre-existing condition, but it was not “significant”. Here, the Medical Assessor has asked himself the wrong question in relation to s 323. It is not whether the pre-existing condition was “significant”. According to Cole and Elcheikh, the question (and in the opinion of the Appeal Panel, the answer to each question):
(a)    the assessment of the current degree of permanent impairment – 15% whole person impairment in the lumbar spine (see further reasons in relation to this assessment below, including the question of persisting radiculopathy);
(b)    whether the applicant suffers from a previous injury or pre-existing condition or abnormality – in the Appeal Panel’s opinion, the answer to this is yes (as was the opinion of the Medical Assessor). That pre-existing condition is degenerative change in the lumbar spine, present symptomatically since 2000, with recurrences on a number of occasions (including in 2012 and 2016, as set out above). The question of whether that previous condition was “significant”, per the Medical Assessor’s reasons, is not a relevant consideration for the purposes of s 323, and
(c)    the extent of that contribution – for the reasons are set out below, the Appeal Panel’s view is that the contribution is 1/5^th.
In other words, per the explanation set out in Ryder, the respondent’s pre-existing degenerative lumbar spine contributed to the current degree of impairment by making it worse.
The respondent submits that a deduction can only be made if the relevant condition contributed to the current degree of impairment. That is no doubt the case in accordance with the legislation. The respondent goes on to refer to Fire and Rescue v Clinen [2013] NSWSC 629. That case is distinguishable. It concerned circumstances where the pre-existing condition was exposure to sunlight in youth. This, in the court’s view, was not a pre-existing “condition”, because it was not a medical condition but the circumstances giving rise to it. In present circumstances, the pre-existing condition is a medical condition – degenerative change in the lumbar spine. That condition has been, at different times, symptomatic. It was symptomatic for periods from 2000, most recently prior to the work injury in 2016.
Even if the Appeal Panel were to accept the respondent’s submission that the only inference that could be drawn is that the Medical Assessor found at the time of the work injury the prior injury was not symptomatic (which is rejected, for the reasons above that that inference is not the correct one), an asymptomatic condition can still contribute to impairment (per Vitaz).

Ground 2 – radiculopathy/left lower extremity

The appellant’s contention in relation to this ground is that the Medical Assessor has concluded that there was persisting radiculopathy “contrary to all evidence that was before the MA”. The appellant also notes the referral, which included the lumbar spine and left lower extremity, was misunderstood by the Medical Assessor.
The respondent submits that there was evidence of radiculopathy, on the day of examination, and the appellant’s submission is misconceived.
The Appeal Panel accepts the appellant’s submissions in part. The Appeal Panel accepts that the Medical Assessor has erred in his understanding of the matters referred for assessment. It is clear that the left lower extremity injury was for Achilles tendinitis. The left lower extremity was not referred for the purposes of an assessment of radiculopathy – that assessment is to be conducted as part of the assessment of the lumbar spine, in accordance with Ch 4 of the Guidelines. Radicular pain in the relevant dermatomal distribution in the leg is not assessable under the left lower extremity.

The Appeal Panel does not accept that the assessment of persisting radiculopathy was contrary to all evidence before the Medical Assessor. Firstly, the assessment of a worker, in accordance with the Guidelines, occurs on the day of examination. Previous evidence may be a relevant consideration, but is not binding on the Medical Assessor. The Medical Assessor was at pains to explain his difference of opinion in relation to the presence of radiculopathy in the MAC:
“I wish to advise that I do not agree as there are clear signs of radiculopathy found at this assessment - that is my comment. My comment is that there are clear signs of radiculopathy present at this assessment and hence a 15% WPI…”
This conclusion was based on findings on physical examination, set out on page 3 of the MAC, where the Medical Assessor sets out the relevant findings in relation to each of the criteria for radiculopathy as required by the Guidelines.
However, in circumstances where it is clear that the Medical Assessor has misunderstood the terms of the referral by failing to assess the left lower extremity as a separate body part, with injury being Achilles tendinitis, it is arguable that this error has led the Medical Assessor to error in his assessment of impairment, including radiculopathy. As the Appeal Panel must re-examine the worker in order to properly assess the left lower extremity, it is appropriate that the findings in relation to radiculopathy are considered.
Drew Dixon, Medical Assessor member of the Appeal Panel, conducted the re-examination on 22 August 2024. His report is as follows:
“Medical History
This 47 year old teacher was lifting a heavy laptop storage unit upstairs on a trolley when he injured his lower back and developed left sciatica and the following day he had difficulty getting out of bed due to marked back pain. He subsequently had review by his GP and an MRI was arranged on 5 December 2017 which showed a moderate size disc protrusion at L4/5. He was substantially referred to A/Prof Matthias Jaeger, neurosurgeon in Wollongong who performed left L4/5 microdiscectomy on 11 January 2019 at Wollongong Private Hospital. This was done for refractory sciatica.
Following the operation his back pain improved, as did his sciatica. He still, however, had difficulty doing his teaching duties with prolonged standing, repetitive bending and stooping and heavy lifting and carrying so has changed his work to a more admin position.
There was a history of back strain injury when the claimant worked for BHP where he sustained a back strain injury in the year 2000 and subsequently had an MRI which showed L4/5 central and left sided disc protrusion impinging on the left L5 nerve roots and similar findings on MRI of 11 June 2016. He had subsequent review by A/Prof Jaeger, a neurosurgeon, who had seen him for a history of 16 years of non-radicular lower back pain, which had become increased over the previous year.
There was no radiation to the lower limbs at that stage and the claimant had taken analgesia as needed.
Present treatment
He takes Voltaren as required and does his own exercises on a stationary bike at home. He has finished formal physiotherapy and will see his GP as needed and his spinal specialist as referred.
Present symptoms
He reports residual pain in his lower back that disturbs his sleep and residual left sciatica which extends through the buttock and thigh but not past the knee. He reports difficulty with prolonged sitting and standing and has a sitting tolerance of half an hour and needs to move about while sitting and has a walking tolerance of 30 minutes and a standing tolerance of 20 minutes but needs to move about. He was having difficulty driving and has bought a new automatic car, a four wheel drive, a Ford Raptor with a heated driver's seat, which has been beneficial. He finds when driving the twin cab to work now, his back is more comfortable after long driving. His journey to work takes 25 minutes.
His back pain disturbs his sleep. He has developed some bursitis of his left heel which can trouble him at night.
He is conscious of not accelerating too fast while using his cycling machine. He avoids running and jogging.
He did develop post-traumatic stress disorder and has had psychological counselling over a six month period with a good result.
General Health
He is normally a well person with no history of previous back pain and no significant motor vehicle accidents in the past and his only operative interventions were adenoidectomy and appendectomy when younger.
Work History
He trained as a fitter machinist and has a Graduate Certificate of Inclusive Education and has a Bachelor of Education and a Master of Physical and Health Education. He worked as a teacher and School Manager for Youth Off The Street Programme at Illawarra School and currently works for the Department of Education as a teacher of Industrial Arts and PHPE. He has now moved into more admin role at Five Islands Secondary College.
Social History/ADLs
He is married and has two young sons aged 14 and 15. His wife is well and works from home . He has difficulty doing heavy household chores such as carrying heavy groceries and doing the garden and lawns and lifting his goddaughter but generally he has no difficulty with heavy cleaning at home which is done by his wife. He has difficulty playing any sport that involves jogging or running.
Findings on Clinical Examination
He was 191cm tall and weighed 99kg.
He had stiffness of his lumbar segment with flexion and extension decreased by one third and lateral flexion to the right decreased by one third associated with left sided back pain and flexion on the left decreased by one third with slow and jerky recovery with left sided erector spinae muscle spasm and pain on back extension, which was decreased by one half.
His straight leg raise on the left was 60 degrees and associated with left thigh sciatica and his sciatic nerve root stretch test was positive. His straight leg raise on the right was 70 degrees. His knee jerks were symmetrically present, his medial hamstring jerk on the left was depressed and his ankle jerks were present with reinforcement. There was an area of sensory loss on his right leg in an L4 distribution.
There was wasting of his left leg measuring 39cm compared with 41 cm on the right and there was wasting of his left thigh of 2cm, measuring 44 cm, 10cm above the patella on the left and 46cm on the right. His distal power was grade 5 out of 5 and his plantar responses were negative. He appeared to have some weakness of knee flexion and extension grade 4 out of 5 on the left and grade 5 out of 5 on the right.
He had a full range of motion of the left ankle and subtalar joint and the tendo Achilles and os calcus bursa was non-tender today.
He had 4cm laminectomy scar with colour contrast which was mildly hypertrophic. It was not unduly tender but he is conscious of the scar as it remains itchy.
His gait was normal and he had a slight limp on toe walking on the left and heel walking was associated with left sided low back pain and his squat test was associated with low back pain. He had difficulty arising from a squat position due to low back pain. There was bursitis of the left heel where he previously was diagnosed with left Achilles tendinitis, which was intermittent.
Further investigations
There were no further investigations since the original Medical Assessment Certificate
Summary
In summary this claimant sustained an acute back strain injury due to heavy lifting associated with left L4/5 radiculopathy and required left L4/5 microdiscectomy for refractory sciatica on 29 November 2018.
Based on his findings today, he has persisting low back pain with dysmetria, left sided erector spinae muscle spasm and residual L4/5 radiculopathy with wasting of his left lower extremity and sensory change in an L4 distribution and weakness of knee flexion and extension grade 4 out of 5 with good distal power, grade 5 out of 5 and a decreased medial hamstring jerk on the left (L5).
Whole person Impairment
His impairment for the lumbar spine is DRE III where he has a known disc protrusion and L4/5 laminectomy and discectomy with persisting impaction on ADLS, giving 12% whole person impairment.
That for the persisting left L4/5 radiculopathy is from Table 4.2, Page 29 of the Guidelines, 3% whole person impairment.
This gives a total from the Combined Values Chart of 15% whole person impairment less one-fifth for pre-existing condition, giving 12% whole person impairment.
That for his laminectomy scar where he has colour contrast with hypertrophic change and remains conscious of the scar which continues to itch and is visible with summer clothing such as a swimming costume and there were some suture marks and he is easily able to localise the scar and remains conscious of it is from the TEMSKI Table, 1% whole person impairment.
This gives a total of 13% whole person impairment.
The IME report on 1 August 2023 by Dr Ray Wallace, who re-examined the claimant on 15 August 2023, noted that on 7 March 2011 the claimant had a diffuse annular disc bulge at L 3/4 and a central and left sided disc protrusion impinging on the left L5 nerve root, which occurred while he was working as an operator for BHP in the year 2000, when he was lifting a coil and twisted with the onset of lumbar spinal pain. He was referred for physiotherapy. He was seen by A/Prof Jaeger, the neurosurgeon at Wollongong on 15 July 2016 and gave a history of low back pain at that stage but no radiation to his lower limbs.
He noted that the investigation of the lumbar spine on 11 June 2016, some 17 months prior to the index work incident, showed moderate central and left sided disc protrusion at L4/5 without impingement of the exiting nerve root.
He was of the opinion that this warranted a reduction of one third because of significant pre-existing lumbar spinal pathology in the previous work injury in 2000 and evidence of significant pre-existing left sided disc protrusion at L4/5 level on MRI investigation carried out on 7 March 2011.”
To the above, the Appeal Panel would also note the following.
In relation to the left lower extremity, on examination Mr Gardiner had a full range of motion of the ankle and subtalar join, and the Achilles bursa was not tender. In those circumstances, there is no assessable impairment under Table 17-11 of AMA 5.
The signs of radiculopathy that were present before the Medical Assessor were also present on re-examination. In accordance with cl 4.27 of the Guidelines, the criteria found on examination were loss or asymmetry of reflexes in the medial hamstring jerk on the left, muscle weakness of knee flexion and extension, and muscle wasting in the left leg. There is at least one major criteria and one minor criteria present, satisfying the requirements of the Guidelines.
In terms of s 323 of the 1998 Act, as set out above, the Appeal Panel was satisfied that it was appropriate to make a deduction. Mr Gardiner had extensive degenerative change in his lumbar spine prior to the work incident. That pre-existing condition had been symptomatic at various occasions since 2000, involving radiological investigations and a referral to a neurosurgeon, to consider surgery, a little over a year prior to the work incident.
The Appeal Panel acknowledge that prior to the work injury, Mr Gardiner’s symptoms were more focused in the spine, and were not radicular in nature. A/Prof Jaeger confirms as much in his report of 25 July 2016.
However, the pre-existing condition has made the work injury suffered by Mr Gardiner worse. Dr Bodel made no deduction. It appears he was not given a full an appropriate history of Mr Gardiner’s previous back issues. He records:
“I note in your referral letter indicating however that you have indicated that he did have a back injury in 2011 when working at St Mark’s College while teaching a tennis lesson and teaching how to serve the ball. He had back pain and left leg pain at that time and was off work for two weeks and completely recovered with conservative care.
…
I am now aware of the previous injury in 2011 but he recovered from that and was asymptomatic for many years until the injury which is the subject of this claim. That is not the basis for a deduction for pre-existing impairment.”
This history is inconsistent with the clinical records which show ongoing complaints in 2012 and a significant further issue in 2016, resulting in the referral to A/Prof Jaeger.
On the other hand, Dr Wallace initially made a deduction of 1/10^th due to pre-existing symptomatic degenerative disc disease. Dr Wallace amended his opinion in 2023, commenting:
“His current lumbar spinal condition is due to his work injury of 22 November 2017 with a significant proportion being due to his previous work injury in 2000 and his pre-existing disc protrusion at the L4/5 level.”
Dr Wallace made a deduction of one third:
“Of this impairment, one-third or 3.6% is due to significant pre-existing lumbar spinal pathology related to a previous work injury in 2000 and as well as evidence of a significant pre-existing left-sided disc protrusion at the L4/5 level on MRI investigation carried out in 2011.”
As has already been set out, for reasons above the Appeal Panel is of the view that a deduction is appropriate in this case. The remaining question is the extent of the deduction.
Whilst s 323 of the 1998 Act provides for a “default” or “fallback” position of a deduction of 1/10^th(see s 323(2)), that assumption only operates where it is “difficult or costly to determine” the extent of the deduction. That could be, for example (as provided for in the section) of the absence of medical evidence. Here, there is extensive medical evidence to draw upon, including the clinical notes, radiology, and reports of A/Prof Jaeger, which all pre-date the work incident. Alternatively, applying the presumptive position of 1/10^th would be at odds with the available evidence.
It is the Appeal Panel’s view that a deduction of 1/5^th is appropriate. This assessment is based on the material set out above, the findings made on re-examination, and the clinical judgement of the medical members of the Appeal Panel.
Accordingly, the MAC must be revoked and a new MAC 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:	W1318/24
Applicant:	Darran Gardiner
Respondent:	Youth Off The Streets 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 Medical Assessor Brian Stephenson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in 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	22 November 2017	Chapter 4, Page 27, Paragraph 4.27 and Chapter 4, Page 29, Table 4.2	Chapter 15, Page 384, Table 15-3	15%	1/5	12%
Left lower extremity	22 November 2017	Chapter 17, Page 537 Table 17-11	0%	NIL	0%
Skin (TEMSKI)	22 November 2017	Page 74, Chapter 14	1%	NIL	1%
Total % WPI (the Combined Table values of all sub-totals)					13%

[2024] NSWPICMP 660

17 September 2024