Zed Group Australia Pty Ltd v Naumovski

DETERMINATION OF APPEAL PANEL
CITATION:	Zed Group Australia Pty Ltd v Naumovski [2022] NSWPICMP 442
APPELLANT:	Zed Group Australia Pty Ltd
RESPONDENT:	Dobri Naumovski
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	7 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Employer appeals from Medical Assessment Certificate (MAC) alleging a clerical error in the calculation of whole person impairment (WPI) of left shoulder and a failure by the Medical Assessor (MA) to make a deduction for a pre-existing cervical condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – the MA erred in recording calculations; the MA erred in failing to address medical evidence relating to a previous injury; on reassessment, the Panel found that the lengthy period during which the worker was symptomatic following a prior injury and the radiological evidence established that a pre-existing condition contributed to his current cervical impairment; deduction of 1/10^th appropriate; MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 August 2022 Zed Group Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 July 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate 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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Dobri Naumovski (the respondent) was formerly employed by the appellant as a labourer. On 18 May 2016, he was struck on the left side of his head by a pipe while working at a construction site. Following the injury he was taken to the St George Hospital where he was treated for his physical injuries. He has also been diagnosed with post-traumatic stress disorder.
It is accepted that the respondent also suffered physical injuries to his neck and left shoulder as a result of the incident. He was initially treated conservatively with medication and physiotherapy. However, when his shoulder symptoms did not improve he was referred to Dr Popoff, an orthopaedic surgeon, who performed arthroscopic surgery by way of subacromial decompression and excision of the distal clavicle on 27 June 2019. While the respondent’s shoulder symptoms have improved since the surgery, he continues to complain of pain and restriction of movement in his neck and left shoulder.
On 13 August 2020, the respondent saw Dr Bodel, an orthopaedic surgeon, at the request of his solicitors to assess permanent impairment. Dr Bodel diagnosed a soft tissue injury to the neck and a rotator cuff injury of the left shoulder as a result of the injury of 18 May 2016. He expressed the view that these injuries would prevent the respondent from returning to labouring work and he would need to seek alternative employment. He recorded that the respondent had no relevant past medical history as he had previously been “quite well” and had no previous claims.
Dr Bodel assessed 7% whole person impairment (WPI) as a result of the appellant’s neck injury. This consisted of a finding that he fell within DRE Cervical Category II in respect of his neck and, as his activities of daily living had been compromised, a 2% WPI loading in accordance with items 4.34 and 4.35 on page 28 of the Guidelines. He assessed 9% WPI of the respondent’s left shoulder. Applying the combined values chart, he assessed 15% WPI for these physical injuries. He recorded:
“There is no indication clinically of any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment.”
Dr Breit, an orthopaedic surgeon, saw the respondent on 13 November 2020 at the request of the appellant. Dr Breit diagnosed a soft tissue injury to the neck “on a background of cervical spondylosis”. In respect of the left shoulder, he diagnosed “rotator cuff impingement and symptomatic acromioclavicular arthritis”. He agreed that the respondent was not fit for his pre-injury duties but was fit for very light work.
Dr Breit also assessed the respondent as falling within DRE Category II. However, he only allowed 1% for the impact of the injury on the respondent’s activities of daily living. He also made a deduction of 10% in respect of a pre-existing condition pursuant to s 323 of the 1998 Act. He said:
“There is obvious pre-existing spondylosis that has contributed to the current level of impairment but only the one tenth rule may apply, leaving the final quantum of 5% WPI.”
In respect of the left shoulder, Dr Breit assessed 9% WPI. He made a deduction for a pre-existing arthritis of the acromioclavicular joint that had predisposed to the excision of the distal clavicle. He deducted one tenth pursuant to s 323(2) of the 1998 Act. Utilising the combined value chart, he assessed total impairment as 13%.
By these proceedings the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The difference of opinion as to WPI between Dr Bodel and Dr Breit gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the matter to an MA, Dr Mastroianni, for assessment of the medical dispute. It is from his MAC that the appellant brings this appeal.

PRELIMINARY REVIEW

The appeal panel conducted a review of the original medical assessment in the absence of the parties. As a result of that review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a further examination. The criticism of the MA was directed at a clerical mistake in calculating WPI of the left shoulder and his failure to make a deduction pursuant to s 323 of the 1998 Act for a pre-existing condition of the neck. In neither case, would a further examination of the respondent have assisted in the determination of this issue.
The panel had before it a great deal of evidence relevant to a previous claim made by the respondent in respect of his neck. It also had access to the recent radiological evidence. These documents provided more reliable evidence of the pre-existing condition of the neck and left shoulder than the evidence or medical histories of the respondent worker.

Documentary evidence

The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.

The MAC

The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the panel.
In summary, the appellant submits that the MAC contains two significant errors. First, the MA failed to appropriately consider and apply s 323 of the 1998 Act in respect of the deduction for a pre-existing condition. Secondly, the MA’s assessment of 10% WPI of the upper extremity was based on “a calculation error”.
In respect of the first ground the appellant submits that the evidence before the Personal Injury Commission establishes a prior injury to the neck/cervical spine. It refers to the principles and case law addressing the section culminating in the decisions of Cole v Wenaline Pty Ltd [2010] NSWSC 78 and Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254. The appellant submitted that the MA failed to consider the evidence of previous neck injury contained in reports of Dr Oreb dated 3 April 2000, Dr Guirgis dated 27 September 2000 and Dr Bedi dated 21 November 2000. He also failed to consider the radiological evidence contained in CT scans of 6 September 1999 and 18 May 2016.
It followed that the MA “failed to adequately address the worker’s pre-existing conditions in his cervical spine”. The evidence established a pre-existing condition which required a deduction be made in accordance with s 323.
In respect of the second error, the appellant submitted that:
“The MA has erred in his assessment of 14% UEI, based on an incorrect calculation in the table contained at page 3 of the MAC for abduction of the left shoulder. The MA calculated 110° abduction to total 5% UEI, however in accordance with figure 16-43 at page 477 of the AMA5 Guides, 110° abduction equates to 3% UEI.
Based on the appellant’s calculation, the combined upper extremity impairment is 16%, which equates to 10% WPI, before deducting 1% WPI for the contralateral joint, totalling 9% WPI as a result of the 18 May 2016 injury.”
By his submissions the respondent submitted that neither a previous commutation of his rights under the 1987 Act in respect of injuries from 29 August 1998 to 26 April 2000, or a complying agreement pursuant to s 66A in respect of 11% WPI of his back on 13 February 2006 were relevant to the issue of a s 323 deduction. He does not, however, specifically address the medical evidence referred to in the appellant’s submissions. Rather, he submits that the appellant employer has not pointed to evidence which clearly establishes that he suffered a previous injury or a pre-existing condition his cervical spine. Thus, there was no evidence that a pre-existing condition or previous injury has contributed to his impairment.
In respect of the second alleged error, the respondent stated that he did not concede that the MA’S assessment was incorrect. He continued:
“However, it is difficult to make any submission or calculations without the MA’s worksheet. The respondent workers submits that in the absence of the worksheet, any error alleged by the appellant cannot be made out.”
The respondent submitted that it would make further submissions in respect of the issue if the MA’s worksheet was produced to it. However, it is stated in the MAC that the MA did not provide a worksheet. Rather, he incorporated his findings in a table within the MAC.

DISCUSSION AND FINDINGS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in WingfootAustralia Partners v Kocak [2013] HCA 43 that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
In the MAC, the MA recorded that the respondent has not suffered from a previous or subsequent accident, injury or condition. He made no comment on Dr Breit’s deduction of 10% WPI pursuant to s 323(2) in respect of a pre-existing condition of the cervical spine. Under the heading “Deduction (if any) for the Proportion of the Impairment that is due to Previous Injury or Pre-existing Condition or Abnormality”, he inserted “Not applicable”.
In assessing the left shoulder, the MA measured restriction of movement with a goniometer. For abduction of the right shoulder, he recorded movement of some 60° giving rise to an upper extremity impairment (UEI) of 1. For the left shoulder, he recorded movement of 110° giving rise to a UEI of 5. In the table headed “Shoulder Movements” at page 3 of the MAC, the MA calculated right UEI of 2% and left UEI of 14%. In his reasons, he stated:
“I assess 14% left upper extremity impairment due to restricted shoulder movements(1l (see1 Ob). He had excision of the distal clavicle. This equates to 5% left upper extremity impairment(2l (see 10b). The combined upper extremity impairment (14+ 5) is 18%. This equates to 11 % WPI. There is evidence on arthroscopic examination of a degenerative distal clavicle which was resected. The pre-existing degenerative disease is not a component of the current impairment as the surgery was necessitated by the injury. He does however have impairment in the non-injured contralateral joint (2% UEI which equates to1 % WPI).I have deducted this assuming that where it not for the injury in the left shoulder he would have the same impairment as the right shoulder (Joint Motion AMA 5th Edition page 453 para. 164c). I therefore assess 10% WPI in the left upper extremity.”
While the terms of the previous commutation and complying agreement referred to by the appellant do not assist in ascertaining the existence of a pre-existing condition or previous injury, the medical evidence attached to the appellant’s Reply unequivocally proves that the respondent suffered a neck injury as a result of a motor vehicle accident in August 1999.
A report of the respondent’s general practitioner, Dr Oreb dated 3 April 2000, describes his medical conditions following that accident as including “chronic neck sprain”. On 27 September 2000, the respondent saw Dr Medhat Guirgis, the orthopaedic surgeon, complaining of continuing pain and stiffness in his neck more than a year after the accident. Then, on 21 November 2000, Dr Bedi, a surgeon, provided a report in which he also recorded continuing pain and stiffness in the respondent’s neck. He assessed him as suffering 25% permanent impairment of the neck in accordance with the Table of Disabilities in force in respect of injuries prior to 1 January 2002. The MA does not refer to this evidence. His failure to address it constitutes error.
While the radiological evidence in respect of the respondent’s neck subsequent to the index injury is sparse, an MRI scan of the cervical spine dated 18 July 2018 is reported to show:
“Small broad-based disc osteophyte complexes throughout the cervical spine more marked at C5/C6 with moderate to marked narrowing of both neural exit foramina. No significant canal narrowing is detected.”
In the opinion of the panel both the radiological evidence and the lengthy period during which the respondent was symptomatic following the motor vehicle accident in 1999 suggest that Dr Breit’s characterisation of the respondent’s injury as an aggravation of a pre-existing cervical spondylosis is correct. The panel notes that the MA also made a diagnosis of spondylosis. The panel concludes that more probably than not the respondent’s pre-existing condition made him more vulnerable to injuring his neck in 2016 and increased the level of his current WPI.
A CT scan of the cervical spine following the injury is said to reveal the presence of C5/6 foraminal stenosis bilaterally. The respondent has been treated with cortisone injections to the left C6/C6 on the recommendation of Dr Cordato, a neurologist. This is consistent with the injury being an aggravation of a pre-existing condition.
The respondent’s evidence in respect of his past health is unreliable. In the circumstances, the panel gave primary weight to the medical evidence. While it is probable that the 1999 injury has increased the level of the respondent’s impairment, it is exceedingly difficult on the limited evidence available to establish the precise extent of the contribution. Accordingly, the panel has concluded that it is appropriate to make a deduction of one-tenth in accordance with s 323(2) of the 1998 Act. As a result the panel finds that the respondent has 6% WPI of the cervical spine.
The specialist medical practitioners on the panel accept that the MA erred in recording 5% UEI for abduction of the left shoulder in the table at page 3 of the MAC. In accordance with Figure 16-3 of AMA 5, 110° abduction equates to 3% UEI. It is therefore necessary for the panel to reassess WPI of the left shoulder.
Substituting 3% for the abduction of the left upper extremity in accordance with Figure 16-43 gives rise to an upper extremity impairment of 12% (not 14%). Using the uninjured right shoulder as a baseline 2% UEI must be deducted which gives 10% UEI.
Chapter 2.14 of the Guidelines mandates that an excision of the distal clavicle attracts a further 5% UEI. Combining 5% UEI (clavicle) with 10% UEI gives 15% UEI. No other deduction is appropriate, including for a pre-existing condition, as the right shoulder has been used as a baseline. The 15% UEI converts to 9% WPI in accordance with Table 16-3 of AMA 5.

The panel notes that the respondent submitted that it wished to make submissions after receipt of the MA’s worksheet. As indicated above, the MA did not provide a worksheet as he incorporated his measurements in the MAC. It is quite clear, however, from the MAC that he was in error in calculating UEI arising from abduction of the left shoulder.
Utilising the combined values chart 9% WPI in respect of the left shoulder combined with 6% for the neck gives rise to 14% WPI.
For these reasons, the panel has determined that the MAC issued on 18 July 2022 should be revoked and a new MAC issued. The new certificate is attached to the Statement of Reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W3483/22
Applicant:	Dobri Naumovski
Respondent:	Zed Group Australia Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Mastroianni 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	18/05/16	Chapter 4 pages 24-29	Chapter 15 Page 392 Table 15-5	7%	1/10^th	6%
Left upper extremity	18/05/16	Chapter 2 Pages 10-12	Chapter 16 Pages 433-521	9%	0%	9%
Total % WPI (the Combined Table values of all sub-totals)					14% WPI

[2022] NSWPICMP 442

7 November 2022