DETERMINATION OF APPEAL PANEL	
	
CITATION:	Grujevski v HealthShare NSW [2023] NSWPICMP 301

APPELLANT:	Vlado Grujevski	
		
RESPONDENT:	The State of New South Wales (HealthShare NSW)	
		
Appeal Panel		
		
MEMBER:	Jane Peacock	
		
MEDICAL ASSESSOR:	James Bodel	
		
MEDICAL ASSESSOR:	Margaret Gibson	
		
DATE OF DECISION:	30 June 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury; appellant alleged error by the Medical Assessor in respect of the assessment of the deduction under section 323 because he simply deducted a prior settlement from a prior injury; Held – the Appeal Panel found this to be in error; Medical Assessment Certificate revoked. 	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 16 March 2023 Mr Vvlado Grujevski (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 
16 February 2023.
2.	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 MAC contains a demonstrable error.
3.	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. 
4.	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.
5.	The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
6.	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.
7.	The appellant did not seek that he be re-examined by a Medical Assessor member of the Appeal Panel.
8.	As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel was satisfied that the Medical Assessor made a demonstrable error, there was sufficient material before it to allow the Appeal Panel to make a determination.
EVIDENCE
Documentary evidence
9.	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
10.	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 
11.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
12.	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. 
13.	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.
14.	The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act): 	 
•	Date of injury:	06/01/19
	
•	Body parts / systems referred:	Lumbar spine
Left upper extremity (shoulder consequential)
	
•	Method of assessment:	Whole Person Impairment”	
15.	The Medical Assessor issued a MAC as follows:
Body Part or system	Date of Injury	Chapter,
page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
Lumbar spine	06/01/19	Chap 4 P 24
P 25 T 4.2	P 384 T 15-03
	24	14/24ths (14%)	10	
Left upper extremity		Chap 2 P 10	P 476 F 16-40
P 477 F 16-43
P 479 F 16-46	9	0	9	
Total % WPI (the Combined Table values of all sub-totals)	18	

16.	The worker appealed. There is no complaint on appeal about the assessment in respect of the left upper extremity. The complaint on appeal relates to the lumbar spine only. There is no complaint on appeal about the overall level of whole person impairment assessed of 24% in respect of the lumbar spine. The appeal concerns only the extent of the deduction made by the Medical Assessor under s 323.
17.	In summary, the appellant submitted on appeal that the Medical Assessor erred in the making of a deduction of 14/24ths under s 323.
18.	In summary, The State of New South Wales (HealthShare NSW) (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error and the MAC should be confirmed.
19.	The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: 
Mr Grujevski advised that on 06/01/19, he slipped in one of the laundry delivery trucks.     He fell and in the process, hurt his lower back.
He came under the care of Specialist Neuro-surgeon, Dr Peter Spittaler, who had previously operated on his lower back in 2012 with a discectomy at the L4/5 articulation.  Dr Spittaler recommended conservative management under the care of Dr Marc Russo at that stage.  Radio-frequency ablations were carried but did not help.
Mr Grujevski was referred back to Dr Peter Spittaler. Ultimately it was decided that the most appropriate way of managing this condition was to carry out a fusion at the L4/5/S1 articulations.     This was performed posteriorly and gave him some improvement.
Some weeks later it was identified that he had dysfunction of his left shoulder complex.     He came under the care of Specialist Shoulder Surgeon, Dr Jai Kumar. The condition of the left shoulder was carefully investigated and considered and it was evident that he had developed adhesive capsulitis. It was thought that this probably developed during the previous operative phase when his left arm had been abducted out to the side and had remained in that position for about four hours during the procedure.
Hydrodilatation was tried but did not help. On 19/05/21, a surgical decompression was conducted, together with a biceps tenodesis. This gave him considerable improvement of the left shoulder complex.
Present treatment:   
He takes analgesics which have an opiate base. He also has continuing physiotherapy and hydrotherapy.
Present symptoms:
Constant pain in the lower back. Occasionally there is numbness or tingling radiating down the legs. The left side is more affected than the right. Calf cramps. Reduced mobility. Unable to carry out any kind of bending, such as putting on his shoes and socks for which he needs help. Static postural positions make the situation worse.     His sleep is grossly disturbed.     
With the left shoulder, this is very much less severe than the condition of the lower back, although he continues to have reduced movement and power, and also a lot of discomfort around the left shoulder complex.
Details of any previous or subsequent accidents, injuries or conditions:   
Attention is drawn to a situation which developed with his lower back in 2010 or 2011.     It looks as though there has been a history of lower back pain from considerably before this as well. His condition was ultimately managed by Specialist Neuro-surgeon, 
Dr Peter Spittaler on 06/03/12 when there was a posterior approach for a discectomy at the L4/5 articulation. This had given Mr Grujevski a good result and following this, he was able to get back to his full duties job.
General health:   
This is fairly good. He is not on treatment for anything else.
Work history including previous work history:   
Mr Grujevski used to be a crane driver at BHP. Apparently he hurt his neck during this occupation and also his lower back.     
He worked in the linen service for sixteen years for local hospitals, up until the time of the accident. His condition was managed surgically. He was able to get back to work but only on light duties and was eventually medically retired. Since then, there has been no further work, nor any further training for work.
Social activities/ADL: 
Mr Grujevski is married.  He has a couple of daughters aged 37 and 35 and three or four grandchildren.   His wife is fit and well. She is working in rehabilitation but has felt obliged to take up a second job as a cleaner, in order to try to keep the family financial afloat following Mr Grujevski’s medical retirement.
He smokes about two cigarettes a day, as does his wife. He does not drink alcohol.
In years gone by, he was a keen golfer with an impressive handicap of 6.     He also did a lot of cycling. He now does some modest aquatics activities.  
He is able to drive for about half an hour.  They have a weekly cleaner and also somebody to cut the grass.
At home, he does a minimal amount of housework since he just cannot bend.     His wife helps him with dressing, particularly shoes and socks, which he just cannot manage on his own. He also needs assistance with cutting his toenails.”
20.	The Medical Assessor reviewed the special investigations as follows:
DATE	INVESTIGATION	RESULTS	
21/12/11	MRI scan lumbo-sacral spine	Posterior protrusion at L4/5 and to a much lesser extent, at L3/4 deviated towards the left.     At L5/S1 there is a broad based shallow protrusion.	
24/01/19		There has been a previous discectomy at L4/5.     There is now a small posterior protrusion (likely a recurrence).     Degenerative changes.	
10/06/20	Plan x-ray lumbo-sacral spine	Posterior interbody fusion at L4/5/S1.     	
15/05/20	MRI scan left shoulder	Partial supraspinatus tear and tendinopathy.	

21.	The Medical Assessor conducted a physical examination which he recorded and about which there is no complaint on appeal as follows:
“Mr Grujevski was towards the upper end of average stature with a height of 1.87m. His weight was 102kg. With these parameters, he currently has a body mass index of 29.     This is very overweight and is just under the technical category of “obese”.  The upper level of healthy BMI is 25. In order to achieve this, he should be no more than 87kg.      He was in a lot of discomfort with his lower back.
Upper Limbs.     No significant features were identified with the elbows or the wrists.     Similarly, there were no neurological features. He had the following shoulder movements:
MOVEMENT	RIGHT	LEFT	
Flexion	180°	90°	
Extension	50°	30°	
Abduction	180°	90°	
Adduction	50°	20°	
Internal rotation	80°	60°	
External rotation	80°	50° 	

Back. There was a well healed mid-line surgical scar throughout most of the length of the lumbar spine. There was associated tenderness in the lower mid-line and also over the left sacro-iliac joint.     
The spinal curvatures were normal. There was no scoliosis or muscle spasm. He held himself very stiffly. On forward flexion he could only reach his mid-thighs with a McRae-Wright movement of 2cm. This is very restricted. 5cm is the lower limit of normal  Lateral flexion and rotation to each side and extension were all very grossly reduced to one-third of the normal range.
Lower Limbs.  Mr Grujevski was able walk reasonably normally. He could also take a few paces on his heels and toes but could not squat.     
The legs were equivalent in length and in circumference at the thighs. The left calf was 1cm less in circumference than the right.
No significant features were identified with the hips, knees or ankles.
Sensation to pinprick was minimally reduced over the medial and lateral sides of the left foot and ankle, suggesting continuing irritation of the L4 and S1 nerve roots respectively.
He had quite severe pronation bilaterally.

Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
He was able to sit on the edge of the couch and could fully extend each knee without difficulty.”
22.	The Medical Assessor summarised his diagnosis and findings as follows:
“(a) Summary of injuries and diagnoses:  
Mr Grujevski has a long history of pre-existing lower back dysfunction. In the clinical file, there is evidence of these features in the 1980s. In 2010 there was further deterioration of the lower back condition with a protrusion at the L4/5 articulation. This was managed by a discectomy in early March 2012, which gave him a fairly good result.  That was conducted by Specialist Neuro-surgeon, Dr Peter Spittaler. A 14% whole person impairment was awarded at that stage.
In early January 2019, he had a work related slip and fall and sustained further severe deterioration of his lower back. It was identified that there was a further small protrusion at L4/5 and also a protrusion at L5/S1. Initially it was attempted to manage this conservatively, although the condition persisted and appeared to deteriorate. As a result, he again came under the care of Dr Peter Spittaler and a posterior approach was undertaken for an interbody fusion at the L4/5/S1 articulations. This gave Mr Grujevski improvement, although he was still a long way short of his pre-injury condition and was never able to fully get back to work. He did try but could only manage light duties and eventually he was medically retired.
It was also identified that during the surgical procedure on his lower back, it looks as though his left arm was positioned statically for around four hours. Some weeks after the lower back condition, it was identified that he had developed adhesive capsulitis of the left shoulder. Initially this was managed conservatively, although later there was a sub-acromial decompression and biceps tenodesis carried out by Specialist Shoulder Surgeon, Dr Jai Kumar. This gave Mr Grujevski some improvement, although he has still been left with gross restriction of movement of the left shoulder, reduced power and in general, reduced functional capacity.
(b)	Consistency of presentation:
Mr Grujevski’s presentation was completely consistent.”
23.	The Medical Assessor explained his assessment of impairment of the lumbar spine as follows:
“The lumbar spine is addressed in AMA 5 Page 384, Table 15-03. There has been a surgical fusion at two levels in Mr Grujevski’s lower lumbar spine. This immediately places him into DRE Lumbar Category IV, which provides a whole person impairment ranging between 20% and 23%, depending on the activities of daily living. Bearing in mind that Mr Grujevski needs assistance with dressing, he qualifies for the full 3%, giving a whole person impairment of 23%.
From the SIRA Guidelines Page 29, Table 4.2, there has been a second level surgery which qualifies for a further 1%. He therefore has a baseline whole person impairment of 24%.”
24.	There is no complaint on appeal about the overall level of WPI of the lumbar spine assessed at 24%.
25.	The Medical Assessor highlighted the prior condition of the lumbar spine and prior surgery as follows:
“Attention is drawn to the quite extensive pre-existing lower back pathology, which culminated in the discectomy at the L4/5 articulation in early March 2012.”
26.	The Medical Assessor made brief comment on the other evidence and medical opinion which was before him as follows:
“All specialists who have assessed and reported on Mr Grujevski agree that he is in DRE Lumbar Category IV. There are minor discrepancies with the further components from the SIRA Guidelines Table 4.2. Specialist Orthopaedic Surgeons, Dr Anil Nair and Dr Sam Sorrenti in their reports of 09/03/22 appear to include a further 3% from Table 4.2 describing that this is due to post-surgical ‘symptoms’.  With great respect, there must also be the demonstration of radiculopathy to include this factor, which is not described by anyone. Neither of these two specialists provides any deduction and 
Dr Anil Nair has advised no deduction, since, ‘Fully recovered from injury in 2012’. With the greatest of respect, the fact that he has fully recovered or otherwise is not specifically relevant in the assessment of deductions.  The fact remains that there was significant pre-existing pathology to necessitate a discectomy at that stage and this is the factor which reasonably necessitates the application of a deduction.  This factor is further addressed in detail by Specialist Orthopaedic Surgeon, Dr Chris Harrington in his report of 20/06/22. He identifies that there was a previous award of 14% and advises that this should be deducted from the impairment assessed over the injury of January 2019. I agree with this approach.”
27.	The Medical Assessor explained his reasons for making a deduction whereby he simply deducted the quantum of the prior award as follows:
“As advised, attention is drawn that Mr Grujevski has a history of significant lower back dysfunction which goes back to the 1980s. The condition deteriorated badly in 2010 and a discectomy at L4/5 was conducted in early March 2012. An award at that stage for this condition was made of 14% WPI. This factor should reasonably be deducted from the current whole person impairment calculated at this assessment.”
28.	A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. Where the extent of the deduction would be too difficult or too costly to assess the deduction should be one-tenth unless that is at odds with the available evidence.
29.	The Medical Assessor made a deduction of the prior award (reached by way of agreement between the parties) of 14% whole person impairment. This approach was in error. The contribution to the level of overall permanent impairment assessed as a result of the referred injury is what must be assessed by the Medical Assessor using his clinical expertise. The Medical Assessor has not done this here but rather has simply obviated the exercise of clinical judgment by deference to a consent award between the parties. This means that he has not taken into account relevant factors such as the good recovery from his prior surgery (which took place some seven years prior to the subject injury) and return to full duties, such that he was effectively asymptomatic at the time of the subject injury. As a result of the subject injury he came to surgery at the same level as previously. There is some contribution to the level of permanent impairment assessed overall by the prior condition of the back and this is appropriately taken into account by making a one-tenth deduction on the basis that it would be otherwise too difficult to assess and a deduction of one-tenth is not at odds with the available evidence. 
30.	This leaves 24% WPI less 2.4% equals 21.6% WPI which is rounded up to 22% in respect of the lumbar spine as a result of injury on 6 January 2019. Using the combined values table, adding 9% WPI for the left upper extremity which was not the subject of appeal, gives 29% WPI as a result of injury on 6 January 2019.
31.	Accordingly, the Appeal Panel will revoke the MAC and issue a new MAC in accordance with these reasons.
32.	For these reasons, the Appeal Panel has determined that the MAC issued on 16 February 2023 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W5939/22	
Applicant:	Vlado Grujevski	
Respondent:	State of New South Wales (HealthShare NSW)	

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Tim Anderson 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 SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
Lumbar spine	06/01/19	Chap 4 P 24
P 25 T 4.2	P 384 T 15-03
	24	1/10	22	
Left upper extremity		Chap 2 P 10	P 476 F 16-40
P 477 F 16-43
P 479 F 16-46	9	0	9	
Total % WPI (the Combined Table values of all sub-totals)	29