ZWF NSW Pty Ltd v Deguara
[2022] NSWPICMP 254
•17 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | ZWF NSW Pty Ltd v Deguara [2022] NSWPICMP 254 |
| APPELLANT: | ZWF NSW Pty Ltd |
| RESPONDENT: | David Deguara |
APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
MEDICAL ASSESSOR: | Dr Mark Burns |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| DATE OF DECISION | 17 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Respondent referred for assessment of Whole Person Impairment (WPI) from injury to lumbar spine and scarring; respondent had suffered an earlier injury to lumbar and a subsequent injury to lumbar spine than the injury referred for assessment; respondent had surgery to his lumbar spine after each of the three injuries; Medical Assessor (MA) made a deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 for prior injury to lumbar spine but made no deduction with respect to WPI for scarring; appellant contended that MA erred by not making a deduction greater than 10% for earlier injury and by not apportioning any WPI to subsequent injury and by not making any deduction at all with respect to assessment of WPI from scarring; Appeal Panel considered MA was correct to make deduction of 10% only for prior injury and not to apportion any WPI to subsequent injury but erred by not making any deduction with respect to WPI from scarring for earlier injury; when deduction for scarring made, no difference in outcome; Held– Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 April 2022 ZWF NSW Pty Ltd (the appellant) lodged with the Personal Injury Commission (the Commission) an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Brian Stephenson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 16 March 2022. The appellant served a sealed copy of its application on David Deguara (the respondent) on 13 April 2022. The respondent has not lodged with the Commission a Notice of Opposition to the appellant’s appeal. On 9 May 2022, the Commission wrote to the respondent’s lawyers seeking advice as to whether the respondent intended to lodge a Notice of Opposition. No response has been received by the Commission.
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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr David Deguara (the respondent) was employed by the appellant as a construction labourer. On 8 September 2011, whilst he was using a jack hammer on an edge at a height of approximately a metre from the ground, he fell to the ground causing him back pain and spasms and right leg pain.
The respondent had previously suffered an injury to his lower back on 1 April 2005. Following that earlier injury he came under the care of neurosurgeon Dr John Sheehy. An MRI scan was done of his lumbar spine done on 25 July 2005, which revealed a central disc protrusion at L4/5 with postural compression of the left L5 nerve root within the thecal sac and moderate right side paracentral disc protrusion at L5/S1 compression of the right S1 nerve root. Dr Sheehy undertook decompressive surgery on the respondent, removing disruptive material compressing the S1 nerve root, thickened ligamentum flavum and the medial aspect of the facet. Following a period of rehabilitation after that surgery, the respondent returned to work around September 2005, initially working light duties but ultimately performing his ordinary duties. The respondent in a statement dated 20 November 2018 said that the duties he performed following his return to work were physically demanding and “often led to me suffering stiffness and pain in my back and lower leg”. The respondent also said that “with rest and stretching activities, I was able to cope with the stiffness and pain”. The respondent said that he did not need treatment for his back or right leg between early 2006 and his suffering injury on 11 September 2011.
Orthopaedic surgeon Dr James Bodel was asked to assess the respondent’s whole person impairment (WPI) resulting from the injury the respondent suffered on 1 April 2005. In a report dated 26 May 2006 addressed to CGU Workers Compensation (NSW) Ltd, Dr Bodel explained that the respondent had a DRE Lumbar Category III level of assessable impairment on the basis that the respondent had had surgery for radiculopathy in his right leg and had minimally compromised activities of daily living. That correlated with a 11% WPI. Dr Bodel explained that because the respondent continued with symptoms and signs consistent with persistent radiculopathy the respondent was entitled to a further 3% WPI rating. Dr Bodel advised that the respondent’s total impairment from the injury on 1 April 2005 was 14% WPI.
In 2006 the appellant and the respondent entered into an agreement providing for the appellant to pay the respondent compensation of $18,500 under s 66 of the Workers Compensation Act 1987 (1987 Act) for 14% WPI from the injury the respondent suffered on 1 April 2005.
An MRI scan of the respondent’s lumbar spine was done on 11 October 2011, which of course is shortly after the injury he suffered on 8 September 2011. This revealed:
(a) a central postural annular tear;
(b) a recurrent disc protrusion at L5/S1 on the right with a herniated disc fragment with the indication of the body of the disc impinging the right S1 nerve root;
(c) moderate enhancing granulation tissue surrounding the disc, and
(d) a swollen right L5 nerve root.
The respondent again came under the care of Dr Sheehy who undertook surgery on 10 November 2011 when he decompressed the respondent’s S1 nerve root removing a disrupted fragment.
In March 2013 the respondent, whilst at home, bent down to pick up a small laundry basket containing a couple of towels. He developed severe pain in his back with radiation to the right leg. He again consulted Dr Sheehy who, at examination, observed significant spasm and an absent right ankle jerk. Dr Sheehy referred the respondent for an updated MRI scan which revealed a left paracentral L5/S1 disc protrusion displacing and potentially irritating the left L5 nerve root, which was unchanged since 2012. It revealed a right laminectomy with scarring around the S1 nerve root in the lateral recess and distortion and some thickening of the S1 nerve root. It also revealed a right L5/S1 disc protrusion in the lateral recess but no significant mass affect upon the S1 nerve root.
On 1 May 2019 the respondent had a third operation done by Dr Sheehy when the L5 nerve root was decompressed on the left and right.
On 2 October 2020 the respondent again saw Dr Bodel, but on this occasion at the request of the respondent’s solicitors. Dr Bodel in a report he provided the respondent’s solicitors on that date advised that he assessed the respondent had 15% WPI from the injury the respondent suffered on 8 September 2011. Dr Bodel explained in that report that the respondent had an assessable impairment that correlated with the criteria for DRE Lumbar Category III because the respondent had had “surgery for radiculopathy”. Dr Bodel noted that the “base rating” for that category is 10%. Dr Bodel considered that in accordance with [4.34] and [4.35] of the Guidelines there ought to be a further 2% loading due to the effect of the respondent’s injury on his activities of daily living, bringing his overall impairment to 12% WPI. Dr Bodel further explained that because the respondent had clinical signs of persisting radiculopathy in both legs that a further 3% WPI loading was allowed under Table 4.2 of the Guidelines. Further, because the respondent had a second surgical procedure after the injury on 8 September 2011 a further 2% WPI was allowed under Table 4.2 bringing the respondent’s overall WPI relating to his lumbar spine to 16%.
Dr Bodel also expressed the view in his report that there ought to be a 1/10th deduction for the pre-existing impairment arising from the injury the respondent suffered in 2005, in accordance with s 323 of the 1998 Act. Dr Bodel explained that the history the respondent presented, which was that he was not entirely asymptomatic at the time of the injury he suffered in September 2011. Dr Bodel explained that the 2005 injury contributed to the overall level of the respondent’s impairment but it was too difficult to determine the exact level of that contribution and Dr Bodel considered that a 1/10th deduction was appropriate.
Dr Bodel said that after making that deduction the appellant’s impairment relating to his lumbar spine from the injury on 8 September 2011 was 14% when rounded. Dr Bodel explained that he had also assessed the respondent had 1% WPI due to the scarring from surgeries, and hence his opinion that the respondent’s total WPI from his injury on 8 September 2011 was 15%.
On 31 March 2021 the respondent’s solicitors wrote to the appellant’s insurer advising the insurer that the respondent claimed compensation from the appellant under s 66 of the 1987 Act for 15% WPI from the respondent’s injury on 8 September 2011. The respondent’s solicitors advised that the respondent relied on Dr Bodel’s report of 2 October 2020 and provided the insurer with a copy of Dr Bodel’s report.
Thereupon the respondent’s solicitors arranged for the respondent to be examined by orthopaedic surgeon Dr Brett Courtenay. That examination occurred on 1 June 2011. In a report dated 21 June 2021 to the respondent’s solicitors, Dr Courtenay advised that he
had assessed the respondent had 15% WPI from the injury on 8 September 2011. Dr Courtenay’s computation of the respondent’s WPI reflected that of Dr Bodel. That is to say Dr Courtenay considered that the respondent’s impairment correlated with DRE Lumbar Category III to which should be added 2% WPI for the effect of the respondent’s injury on the respondent’s activities of daily living. Dr Courtenay explained that the respondent had two lumber discectomies, each at the same level, after the injury in 2011 and had residual radiculopathy. Dr Courtenay explained that the second operation attracted a modifier of 2% WPI and that there was also to be a further modifier for persistent radiculopathy of 3% WPI bringing the total modifier to 5% WPI. When that was combined with the 12% WPI, the result was 16% WPI. Dr Courtenay considered there should be a deduction of 1/10th on account of the respondent’s injury on 1 April 2005. Dr Courtenay explained that he had “assumed that following the episode on 1 April 2005 the worker did get back to his full level of duties”. Dr Courtenay explained that what occurred in 2011 was “a major episode”. Dr Courtenay said there was one further episode when the respondent was doing “minor work” in 2013, which was a reference to when the respondent lifted the washing basket. Dr Courtenay also explained that when that deduction was made, and after rounding up, the respondent had 14% WPI from his injury to his lumbar spine on 8 September 2011. Dr Courtenay also considered that the respondent had 1% WPI for scarring because of contour changes.In a subsequent report of 9 August 2021 to the appellant’s solicitors, Dr Courtenay explained that he considered that the incidents in which the respondent was involved on 1 April 2005, 8 September 2011 and 11 March 2017 resulted in the same pathology in the respondent’s spine which was a compression of the nerve root due to the disc, some narrowing and some early arthritic changes. Dr Courtenay explained the respondent had a weakening of the lower lumbar spine and that “each of those subsequent injuries” caused further damage to the intervertebral disc and narrowing of the disc and radiculopathy. Dr Courtenay explained that he considered the injury the respondent suffered on 1 April 2005 materially contributed to “the second pathology on 8/09/2011”. Dr Courtenay explained that from each of the incidents on 1 April 2005 and 8 September 2011, there “was the same essential outcome”. Dr Courtenay explained that the non-work related incident in 2013 resulted from a very minor force that occurred with minimal trauma and that “if it was not for the previous injuries, it is unlikely that he would have suffered as much as he did”.
On 10 August 2021 the appellant’s solicitors wrote to the respondent’s solicitors providing them with copies of Dr Courtenay’s reports. The appellant’s solicitors advised “based on Dr Courtenay’s assessment and noting the prior lump sum compensation your client has received for 14% WPI (lumbar spine), we do not consider there is any further impairment and we are instructed to offer the sum of $NIL in order to resolve this claim”.
Thereupon the respondent initiated proceedings in the Commission seeking determination of his claim against the appellant for compensation under s 66 of the 1987 Act. The respondent nominated Zenith Works & Co Pty Ltd as the respondent, rather than ZWF NSW Pty Ltd. It seems that a delegate of the President then referred the matter to the MA on 7 February 2022, although that referral is not in the material before the Appeal Panel. It would also seem that there was some issue arising from the terms of that referral and, as a consequence, the matter was then referred to Member John Isakson to resolve that issue. On 1 March 2022 Member Isakson made the following determination:
“1. The ARD is amended to name the respondent to be ZWF NSW Pty Ltd.
2. The name of the respondent in the Referral of Medical Assessment for Permanent Impairment to Medical Assessor is amended to: ZWF NSW Pty Ltd.
3. The Referral of Medical Assessment for Permanent Impairment to Medical Assessor is otherwise confirmed.
4. The appointment with Dr Stephenson, Medical Assessor, on 2 March 2022 is confirmed.”
On 1 March 2022 a delegate of the President issued an amended referral to the MA with respect to the following medical disputes:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
·the degree of permanent impairment of the worker as a result of an injury (s319(c))
·whether any proportion of permanent impairment is due to any previous injury or pre- existing condition or abnormality, and the extent of that proportion (s319(d))
·whether impairment is permanent (s319(f))
·whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 8 September 2011
Body part/s referred: Lumbar spine
Scarring - TEMSKI
Method of assessment: Whole person impairment”
As said, the MA issued the MAC on 16 March 2022. The MA explained within that, that he had assessed the respondent’s overall WPI with respect to his lumbar spine was 16% but he considered a deduction of 1/10th should be made for pre-existing injury, condition or abnormality. He certified within that that the degree of the respondent’s permanent impairment resulting from his injury on 8 September 2011 was 15% WPI, comprising 14% WPI for the respondent’s lumbar spine and 1% WPI for scarring.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The MA examined the respondent on 2 March 2022. The history the MA obtained included the circumstances relating to the injury the respondent suffered on 1 April 2005 and the decompression surgery that Dr Sheehy performed on 12 August 2005. The MA noted that following that surgery the respondent returned to work performing light duties and ultimately undertaking his normal work.
The MA obtained a history with respect to the respondent’s injury on 8 September 2011 that accorded with how the respondent described the occurrence of his injury in his statement of 29 July 2013. The history the MA recorded included the surgery Dr Sheehy performed following this injury.
The MA also noted the incident in March 2013 within the history he obtained, when the respondent lifted a washing basket. The MA noted that following this Dr Sheehy ordered an MRI that was done on 23 March 2013 and which revealed an L5/S1 disc protrusion displacing and potentially irritating the L5 nerve.
The MA also noted that because of persisting lumbar and right lower leg symptoms the respondent had further surgery by Dr Sheehy on 1 May 2019.
The MA had regard to the reports on the several investigations that the respondent had undergone, commencing with an X-ray on 21 July 2005 and ending with an MRI of the lumbar spine on 28 March 2019. The MA provided brief summaries within the MAC of the reports on those investigations.
The MA’s findings from his examination of the respondent were such that the MA concluded that the respondent had radiculopathy with persisting pain post injury and surgery. That finding is not challenged by the appellant in the appeal.
The MA found that the respondent had a 13cm long mid-line surgical scar due to his three lumbar surgeries. The MA considered that some parts of the scar had colour contrast with surrounding skin and that the scar had minimal atrophic changes. The MA found the scar had annulus staple or suture marks. The MA found the scar had minor contoured defect and no adherence. The MA considered that either no treatment or intermittent treatment would be required for the respondent’s scar. The MA considered that the respondent was able to locate the scar and was conscious of the scar, but the location of the scar was such that it would not usually be visible with normal clothing. The MA considered that the respondent’s scar would have a negligible effect on his activities of daily living. As said, the MA assessed the respondent had 1% WPI due to his scarring.
As also said, the MA assessed the respondent had a total of 16% WPI relating to his lumbar spine but considered that there ought to be a deduction of 1/10th pursuant to s 323 such that he assessed the respondent’s permanent impairment from his injury of 8 September 2011 relating to his lumbar spine to be 14%. The MA then combined that with the 1% WPI he had assessed the respondent to have relating to scarring such that the MA assessed the appellant to have 15% WPI from his injury on 8 September 2011.
The appellant’s appeal concerns both the deduction the MA made pursuant to s 323(1) of the 1998 Act for the previous injury the respondent suffered and whether the MA ought to have apportioned part of the respondent’s WPI to the incident in March 2013. With respect to the deduction the MA made under s 323(1), the MA provided the following explanation at 8(e)-(i) and Part 11 of the MAC:
“8….
e.Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? There has been a settlement of 14% WPI for the date of injury 1 May 2005. In March 2013, David was referred back to Dr Sheehy and the MRI of 20 March 2013. That was because in March 2013, at home doing his washing, he bent over to pick up the washing basket and became stuck with acute pain in the lumbar region. Dr Sheehy saw him and has reported 20 August 2017, that last seen Mr Deguara four years ago when he was troubled by left buttock pain and sciatic and lower back pain. His imaging at that time demonstrated compression of his left S1 nerve root.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing injury, pre-existing condition or abnormality.
The lumbar spine was so affected.
g. A new MRI carried out 3 August 2017, confirmed compression of the lateral recess bilaterally at the L4/5 level and he recommended decompression of the nerve exit canal which was not in fact undertaken until the third operation of 1 May 2019. Again, he decompressed the L4/5 level.
Therefore, with that episode of simply bending down to pick up a washing basket when he reported to weight only 5kg, whilst it would not seem to be a major injury but nevertheless in view of the pre-existing lumbar condition already, there have been the two operations following the date of injury of 8 September 2011.
Regarding the operation which followed the injury 8 September 2011, which I have listed as the second operation of 10 November 2011 and then the third decompression of 1/5/19, I have made a fraction deduction of one-tenth in regard to that episode of simply bending to pick up the washing basket at home in March 2013, weighting only 5kg, with no change in pathology in the MRI of 2013 compared to that of 2012.
h. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. The lumbar spine.
i. Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury. I do not regard the somewhat trivial episode of bending to pick up a washing basket as a further injury to the subject work injury but an injury which is related to and consequential to the index injury requiring the second operative procedure I have referred to and then the third operative procedure of 1 May 2019.
11 …
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
There was as noted at page 1, a previous award of 14% WPI for the date of injury 1 May 2005. That is settled.
(i) There was an incident at home when simply bending to pick up a washing basket weighing only 5kg, when he developed acute lumbar pain in March 2013 and came back under the observation and review by Dr John Sheehy and ultimately had the third operative procedure which was the second operative procedure following the index injury, leading to the decompression of the L4/5 disc space and the L5/S1 nerve roots as reported by Dr Sheehy in March of 2019.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) List each sign etc that results from the previous injury etc and explain how the previous injury etc directly contributing to each of those matters.
I have noted that the incident at home in March 2013, bending to pick up a washing basket led to continued radiculopathy in the lower limbs requiring the operative procedure post-injury of 10 November 2011. That final operation was that of 1 May 2019.
The MRI of 13/3/2013 after lifting the 5kg washing basket at home was unchanged from that of 26 February 2012.
That radiology is consistent with no significant new injury when lifting the 5kg basket.
In my opinion the deductible proportion is one-tenth for the following reasons:
• It was otherwise too costly or difficult to determine.
• It is not at odds with the available evidence.
The surgical decompression procedures were of 10 November 2011 and 1 May 2019. These were both required for the radiculopathy which occurred and persisted following the injury date of 8 September 2011.”
SUBMISSIONS
The appellant made written submissions. The respondent did not make any submissions.
In summary, the appellant submitted that the MA failed to make an appropriate deduction under s 323(1) of the 1998 Act for the proportion of the respondent’s permanent impairment that was due to his prior injury on 1 April 2005. The appellant submitted that based on the assessment of the respondent’s impairment that Dr Bodel had done on 26 May 2006 it was known what the respondent’s permanent impairment was from that injury. The appellant highlighted that the assessment Dr Bodel had then done included uplifts for the effect the appellant’s injury of 1 April 2005 had on the respondent’s activities of daily living and for persisting radiculopathy. The appellant submitted the MA, when assessing the respondent’s WPI from his injury on 8 September 2011, ought to have subtracted 14% WPI from the overall WPI he assessed the respondent had with respect to his lumbar spine. In other words, the appellant submitted that the deduction the MA ought to have made under s 323(1) of the 1998 Act, for the proportion of the appellant’s impairment that was due to his earlier injury, was 14/16th of the respondent’s overall WPI relating to his lumbar spine.
The appellant submitted that the respondent’s complaints of radiculopathy pre-dated the respondent’s injury on 8 September 2011. The appellant submitted that the MA had not complied with [4.36][1] of the Guidelines because the respondent had previously been assessed by Dr Bodel as having 1% WPI with respect to the effect that the respondent’s injury on 1 April 2005 had on his activities of daily living, which the MA did not deduct from the 2% WPI he assessed the respondent had.
[1] The appellant referred to [4.37] of the Guidelines, but it is apparent from the content of the appellant’s submission that the reference was meant to be to [4.36].
The appellant submitted, in the alternative, that the MA ought to have applied a deduction “significantly greater than 1/10th”.
The appellant further submitted that the MA ought to have attributed an apportion of the respondent’s impairment to the incident in March 2013, after which further surgery was done. The appellant submitted that there was evidence that indicated that the respondent’s most recent surgery was as a consequence of the injuries in 2005 and 2011.
The appellant also submitted that the respondent’s scarring was as a consequence of three surgeries, one of which was undertaken prior to the injury the respondent suffered on 8 September 2011, and because of that the MA ought to have applied a deduction under s 323 for the extent to which the respondent’s permanent impairment from scarring was due to that earlier surgery.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
With respect to the deduction a MA is to make under s 323(1), the authorities are consistent and clear regarding the approach a MA must take. That is, the level of a worker’s post-injury impairment, as at the time of assessment, must firstly be determined. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.[2]
[2] See Cole v Wenaline Pty Ltd [2010] NSWSC78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz) and Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder).
The Supreme Court held in Ryder that the pre-existing condition that a worker has or the prior injury the worker has suffered must make a difference to the outcome in order that a worker’s impairment can be found to be due to it.[3] There must be a deduction for the extent to which it does make a difference.
[3] Ryder v Sundance Bakehouse [2015] NSWSC526
The third stage of this process cannot be done based on assumption or hypothesis, but must be done by reference to the evidence. The evidence must be able to demonstrate that a proportion of a worker’s impairment is due to the pre-existing condition or previous injury.[4] Further, the fourth stage must also not be done by reference to assumption unless the extent to which a deduction is to be made under s 323(1) would be too difficult or costly to determine, because of the absence of medical evidence or some other reason, in which case, in accordance with s 323(2) of the 1987 Act, the deduction is be assumed to be 10% so long as that assumption is not at odds with the evidence.
[4] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
The explanation the MA provided for the deduction he made pursuant to s 323(1) for the extent to which the respondent’s permanent impairment was due to his earlier injury on 1 April 2005 is somewhat confusing. Arguably, the explanation he provided could be interpreted such that, rather than making a deduction pursuant to s 323(1) for the injury on 1 April 2005, the MA in fact apportioned 1/10th of the respondent’s permanent impairment to the incident in March 2013 when the responding lifted a washing basket and 9/10th to the injury the respondent suffered on 8 September 2011. The Appeal Panel’s interpretation of the MAC however, is that the MA made a deduction under s 323(1) for the prior injury the respondent suffered on 1 April 2005, rather than apportioning the respondent’s overall impairment between the injury on 8 September 2011 and the incident in March 2013, and the Appeal Panel’s interpretation of the MAC as such is reinforced by the actual Medical Assessment Certificate in the form of Table 2 attached to the MAC, in which it is made explicit that the deduction the MA made was pursuant to s 323 and was for “pre-existing injury, condition or abnormality”.
In arguendo, if it were the case that the MA apportioned the respondent’s overall impairment between the respondent’s injury on 8 September 2011 and the injury he suffered in March 2013, rather than making a deduction under s 323(1) for the respondent’s prior injury on 1 April 2005, then the MA would have made an error, for the following reasons.
Common law principles of causation in tort are to be applied to determine the degree of permanent impairment a worker has from a work injury.[5] It is trite that an impairment of a worker can have multiple causes.[6]
[5] New SouthWales Department of Education v Johnson [2019] NSWCA 321 (Johnson) at [55] and [124].
[6] Calman v Commission of Police [1999] HCA 60 at [38]-[40] (Calman); ACQ Pty Ltd v Cooke [2009] HCA 28 at [25].
In the Appeal Panel’s view what happened to the respondent in March 2013 was not a new injury. Whilst the proximate cause of the pain that happened to the respondent was the simple act of the respondent bending over to pick up a light washing basket, that was not the real cause of his pain. In the Appeal Panel’s view the stage had been set for this from both the earlier injuries the respondent suffered and the surgeries he had. In other words, what occurred in March 2013 was an acute exacerbation of a pathology in the respondent’s lumbar spine that was due to the earlier incidents and the surgeries done to treat the consequences of those incidents. The situation here is that the incident in March 2013 would not have occurred had the respondent not been in the physical condition that resulted from the earlier incidents. In that circumstance what occurred in March 2013 has a causal connection with the earlier injuries and consequently if the incident in March 2013 did result in any increased impairment for the respondent then given that such an incident would not have occurred had the respondent not been in the condition he was due to the earlier injuries, such impairment from the March 2013 incident, if any, ought to be attributed to those earlier injuries.
In short, the Appeal Panel does not accept the appellant’s submission that “an apportionment of impairment should have also been applied by the MA to account for that intervening incident”, being the incident at the respondent’s home in March 2013.
The Appeal Panel also considers that the deduction the MA made under s 323(1) of the 1998 Act for the proportion of the respondent’s impairment due to his injury on 1 April 2005 was correct. The Appeal Panel notes that the respondent’s evidence in his statement of 20 November 2018 was that after early 2006 he did not need any further treatment for his back following his injury on 1 April 2005. His evidence was that he returned to his employment following that injury in December 2005. There is no medical evidence in the material before the Appeal Panel, which is the same evidence that was before the MA, that contradicts the respondent’s evidence in his statement.
The surgery the respondent had on 12 August 2005 removed disruptive material at the L5/S1 level. The respondent’s evidence in his statement is to the effect that the surgery was successful. It is apparent from the report of Dr Bodel dated 26 May 2006 that the respondent then had persistent radiculopathy. However, the respondent’s radiculopathy, if it persisted for any time beyond 26 May 2006, was not such that it inhibited him being able to perform duties as a labourer or was not such that he required any treatment.
What occurred when the respondent suffered the injury on 8 September 2011 was a further disc protrusion causing more material to be disrupted and necessitating a further surgery. Given that, and bearing in mind there is an absence of medical evidence to contradict what the respondent says in his statement regarding his functioning from 2006 until the date of his injury on 8 September 2011, the Appeal Panel considers that it would be difficult to determine the extent to which the respondent’s injury on 1 April 2005 contributes to his present overall impairment with respect to his lumbar spine. The deduction to be made under s 323(1) is therefore in accordance with s 323(2) of the 1998 Act must be assumed to be 10%, which is not at odds with the respondent’s evidence or any other evidence that is before the Appeal Panel, and that was before the MA. There is simply no medical evidence to contradict that.
The appellant’s submission that s 323(1) requires 14% WPI, which Dr Bodel on 26 May 2006 assessed the respondent’s impairment had, to be deducted from the 16% WPI the MA assessed the appellant to have following his injury on 8 September, must be rejected because it is inconsistent with authority. To accept that submission would require making an assumption, which is not supported by the evidence, that the deduction to be made under s 323(1) must be 14/16th.
In other words, and simply put, the MA was correct to make a deduction of 1/10th pursuant to s 323(1) of the 1998 Act on account of the respondent’s injury of 1 April 2005.
With respect to the appellant’s submission relating to [4.36] of the Guidelines, that paragraph cannot require a greater deduction to be made than what s 323(1) of the 1998 Act permits, and insofar as it did, then it would be inconsistent with s 323(1) and ought not to be applied.[7]
[7] Marks v Secretary, Department of Communities & Justice (No 2) [2021] NSWSC 616.
The Appeal Panel accepts the appellant’s submission with respect to the MA making an error by not making a deduction under s 323(1) of the 1998 Act for the extent to which the respondent’s permanent impairment from his scarring was due to his earlier injury on 1 April 2005. The scar that the respondent has is a line that has been due to all three surgeries. The surgeries the respondent had on 10 November 2011 and 1 May 2019 would have extended the line of the scar from the original surgery the respondent had on 11 August 2005. It is not the case that the subsequent surgeries caused tram lines. In that circumstance, the Appeal Panel considers that the initial surgery the respondent had contributes to the overall impairment the respondent has from scarring to the order of 5/10. If a deduction is made under s 323(1) for that, then the result is the respondent has .5% WPI due to scarring of his injury on 8 September 2011, which when rounded up produces 1% WPI. In other words, even though the MA erred, it does not make a difference to the result.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 March 2022 should be confirmed
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