DETERMINATION OF APPEAL PANEL	
	
CITATION:	Lockwood v Kempsey Shire Council [2023] NSWPICMP 486	
		
APPELLANT:	William Lockwood	
		
RESPONDENT:	Kempsey Shire Council	
		
Appeal Panel		
		
MEMBER:	Deborah Moore	
		
MEDICAL ASSESSOR:	David Crocker	
		
MEDICAL ASSESSOR:	J Brian Stephenson	
		
DATE OF DECISION:	3 October 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 323; the Panel agreed; there was no history of lower back dysfunction before 2005, and the appellant resumed full time work and also playing rugby league; the methodology taken by the AMS to “assume” the appellant had 5% whole person impairment (DRE II) before the 9 March 2016 injury was incorrect; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 14 June 2023 William Lockwood (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 22 May 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 assessment was made on the basis of incorrect criteria, and
•	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.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
8.	The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.  
SUBMISSIONS 
9.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
10.	In summary, the appellant submits that the Medical Assessor erred in making a deduction pursuant to s 323 of the 1998 Act. 
11.	In reply, the respondent submits that no errors were made, and that the Medical Assessor properly considered whether the pre-existing injury contributed to the permanent impairment and there was no demonstrable error made.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of two injuries, firstly, on 11 February 2005; injury to the lumbar spine and scarring, and secondly, on 9 March 2016; injury to the lumbar spine and scarring.
15.	The Medical Assessor obtained the following history:
“First Event   11/02/05. There is very little detail about this particular occasion.     Apparently Mr Lockwood hit a ditch while operating the ride-on mower.     He hurt his lower back.     He was off work for two weeks, then returned to work.     He was able to continue with his normal job.     At that time he was also playing rugby league and was able to return to this sport as well.     
Second Event   09/03/16. A very similar experience occurred where the ride-on went over a rut or a bump and he again hurt his lower back.
He was unable to continue working. Radiological investigations demonstrated significant discogenic pathology at the L4/5 articulation. 
He came under the care of Specialist Neuro-surgeon, Dr Mark Winder. A posterior surgical approach was undertaken in early January 2017 for an L4/5 discectomy. Unfortunately this did not help him.   
At that stage it was identified that he was very grossly overweight.     His weight had gone up to somewhere around 160kg.     Dr Winder advised that further surgery was needed, although this could not be undertaken while he was so grossly overweight.     Bariatric surgery was therefore undertaken in early 2019. This is described as being successful.
Dr Winder carried out a further posterior approach for a spinal fusion at the L4/5 articulation with a disc spacer in August 2019.     Although this gave Mr Lockwood some improvement, he still experienced lower back pain and radiation down the right leg.”	
16.	The Medical Assessor added:
“There is no history of lower back dysfunction before 2005. Although after this event he did get back to full time work and also playing rugby league, there is evidence of further deterioration of his lower back before the second event of 2016. Attention is drawn to a CT scan of early February 2015 which was over a year before the second event, in which extensive degenerative changes are identified throughout the lumbar spine, together with a mid-line posterior protrusion at L4/5 deviated towards the right.” 
17.	Present symptoms were noted as: “Lower back pain with radiation down the right leg. His mobility, such as his range of walking, is reduced.”	
18.	The Medical Assessor then set out details of Mr Lockwood’s work history including previous work history and the impact of his injuries on his social activities and activities of daily living.
19.	Findings on physical examination were reported as follows:
“Mr Lockwood was of average stature with a height of 1.75m. At this assessment his weight was 111kg…   He was not in obvious discomfort.
Back.     There was ache throughout the lumbar spine with associated tenderness throughout.     There were three well healed surgical scars, one in the mid-line and one either side. The scars had healed reasonably well, although were still very obvious and deeply pigmented.
The spinal curvatures were normal. There was no scoliosis or muscle spasm. His back movements were extremely stiff. Forward flexion was grossly reduced to reaching his mid-thighs with a McRae-Wright movement of 1.5cm. This is very stiff. 5cm is the lower limit of normal.  Extension and lateral flexion to the right were both 0°.  Lateral flexion to the left was grossly reduced to one-third of the range. Lateral rotation to each side was grossly reduced to half of the normal range.
Lower Limbs.     Mr Lockwood walked with a slow and cautious gait. He was able to stand on his heels but could not walk on them and could not stand or walk on his toes. He was quite unable to squat.
With his current presentation, it was not possible to accurately measure the leg lengths, nor the thigh circumferences. The calves had the same circumference.
No significant features were identified with the hips, knees or ankles.
Sensation to pinprick was grossly reduced in the right leg. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
The straight leg raise assessment was conducted in the sitting position on the edge of the couch. He could fully extend his left leg but lacked the last 20° of extension of the right knee with increasing tension signs in his lower back.”
20.	The Medical Assessor then documented the radiological material he had as follows:
04/02/15	CT scan	Degenerative changes throughout.     Posterior protrusion at L4/5 with slight deviation toward the right.	
           
20/04/17	MRI scan	Hemi-laminectomy at L4/5 on the right.	
16/04/19		Small posterior protrusion at L4/5/S1 deviated slightly towards the right.     Probable compression of the right L5 and S1 nerve roots.	
          
25/09/19	Plain x-ray	Posterior fusion at the L4/5 articulation.     Small posterior protrusion at L5/S1 continuing.	
16/06/20	CT scan		

21.	He then summarised the injuries and diagnoses as follows:
“Mr Lockwood has a history of two specific injuries to his lower back.  The first of these occurred in February 2005. This seems to have been relatively little more than a minor jolt, although it did have him off work for a couple of weeks. There is almost no accurate reporting of his condition of this time.  After this event he was able to get back to his full and normal job and also was able to return to playing rugby league at a fairly high level.    
The second event occurred in March 2016. Radiological investigation identified discogenic pathology at the L4/5 articulation.  Nevertheless, there does appear to have been a history of increasing lower back pain at least a year before the second event in March 2016.   Associated with that period of time was a CT scan of 04/02/15 of the lumbo-sacral spine which clearly demonstrated degenerative changes throughout, together with a posterior protrusion at L4/5 deviated towards the right.   Therefore, with this underlying condition, the event of March 2016 was a severe aggravation of this underlying condition.     This was initially managed by a laminectomy, although this did not help. As a result, some two and a half years later a fusion was conducted at the L4/5 articulation, which did give him improvement, although following that, he still continues to have lower back pain with radiation down the right leg.   In the intervening period of time, there was bariatric surgery which did give him a fairly good result. Unfortunately it looks as though he is now putting the weight back on again.”
22.	The Medical Assessor assessed total WPI in respect of the first injury as 0%. In respect of the second injury, he assessed a total WPI of 27% (including scarring) but deducted 7/26ths leaving a total WPI of 20%.
23.	When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” he replied “Yes.”    He said: “Attention is drawn to the posterior protrusion at the L4/5 articulation, identified about a year before the second injury of March 2016.”    
24.	When asked to explain his calculations, he said:
“There is almost no detail about the first injury of 2005. The only detail we have about this is that Mr Lockwood was driving a ride-on mower, hit some form of bump which hurt his lower back.     He was off work for a couple of weeks, then was able to continue with his full and normal occupation and was also able to get back to playing rugby league.   Therefore, the effects of this event appear to have been particularly minor. As a result, if a whole person impairment had been assessed at that occasion, it is most likely that it would have returned a whole person impairment of Lumbar Category I with 0%.  There was no surgical procedure then. Therefore, the scarring would also be 0%.
With the second injury of March 2016, his clinical management initially included a laminectomy, although this unfortunately did not help. Some two and a half years later when he had lost a lot of weight through bariatric surgery, a spinal fusion was conducted, which did give him improvement, although he has continued to experience radiculopathy down the right leg, which was evident at this assessment.  He is therefore assessed in AMA 5 Page 384, Table 15-03. Since there has been a fusion, this automatically places him into DRE Lumbar Category IV.  This provides a whole person impairment ranging between 20% and 23%, depending on the activities of daily living.     For this he would attract a further 2%, giving 22%.     
There have been two surgical procedures which would result in a further 2% from the SIRA Guidelines Page 29, Table 4.2. In this table there is also a further 3% for continuing radiculopathy. This additional 5% is combined with the earlier 22%, giving a whole person impairment of 26%.
Scarring.  There have been two surgical procedure to his lumbar spine. He has been left with three substantial and quite severe scars in his lumbar spine. These are very easily identified with extensive pigmentation alteration. He finds this area rather irritable.     In abbreviated attire such as swimmers or shorts without a shirt, they would be very obvious.     With this series of features, this is addressed in the SIRA Guidelines Page 74, Table 14.1.  The best fit analysis is a further 1% WPI.”
25.	In commenting on the other medical opinions, the Medical Assessor said:
“My assessment is quite close to that of Specialist Orthopaedic Surgeon, Dr Alan Hopcroft in his reports of 16/03/20 and 18/10/21. Specialist Orthopaedic Surgeon, 
Dr Frank Machart in his latest report of 24/08/22 also arrives at a very similar result. 
Dr Hopcroft does not provide any deduction. Dr Frank Machart applies a deduction of two-thirds. With great respect, I find this rather excessive.”
26.	He added:
“It has already been identified that Mr Lockwood had discogenic pathology at the L4/5 articulation deviated towards the right before the event of 09/03/16, which was just over a year later. The radiological picture demonstrates continuing deterioration at the L4/5 articulation.  His subsequent clinical management was for two surgical procedures at this level (and at no other level). Therefore, if Mr Lockwood had been assessed for a lumbar back condition before the event of March 2016, it is highly likely that he would have been assessed with Lumbar Category DRE II.     It is also likely that he would have attracted 2% for activities of daily living, which would have given him a whole person impairment of 7%.
The reason why he currently has such a large whole person impairment is that there has been a fusion procedure, two surgical procedures at the one level and he also has continuing radiculopathy. The state of his lower back therefore is fairly poor.     As a result, he ends up with a whole person impairment of 26%. There has obviously been substantial pre-existing pathology which has already been identified as the posterior protrusion at the L4/5 articulation with the CT scan of February 2015. Assuming that at that time he would have attracted a whole person impairment of 7%, it would be very fair, reasonable and appropriate for this figure to be deducted from the final whole person impairment rather than taking an arbitrary figure such as two-thirds, (as advised by Specialist Orthopaedic Surgeon, Dr Frank Machart).”
27.	To begin with, the appellant does not cavil with the Medical Assessor’s primary assessment, being 26% WPI for the lumbar spine and 1% for scarring.
28.	The appellant submits as follows:
(a)	The methodology used by the Medical Assessor as described above and as in the medical assessment certificate is not one described in the Act or any Regulations. All the Act says is that there is ‘to be a deduction for any proportion of the impairment that is due to previous injury or that is due to any pre-existing or abnormality’.
(b)	The section does not call for an assessment of what percentage impairment was before the accident and a further assessment of percentage impairment after the accident. He calls for an assessment of total WPI suffered by the claimant and then to assign a proportion to that. It is not a ‘point in time’ comparison from before the accident and after the accident. It is an assessment of what proportion of impairment at present is due to pre-existing injury, condition or abnormality.
(c)	The Medical Assessor said the injury on 11 February 2005 was minor and did not result in any percentage impairment. The applicant does not dispute that. 
(d)	It cannot be concluded that the claimant was suffering from a DRE Category II impairment before the injury on 9 March 2016.
(e)	DRE Category II requires findings of such things as the following:
• 	non-verifiable radicular complaints;
• 	significant muscle guarding or spasm;
• 	asymmetric loss of range of motion, and 
• 	clinical significant radiculopathy with an imaging study that demonstrates a herniated disc at the level on the side that would be expected but no longer has radiculopathy.
(f)	In the medical assessment certificate the Medical Assessor says “there does appear to have been a history of increasing low back pain at least a year before the second event in March 2016.”
(g)	There are certainly some issues with the back recorded in the general practitioner notes.
(h)	However many essentially relate to an injury to the coccyx in January 2015. On 
9 January 2015 recording is of low back pain but with full range of motion and tenderness over the sacro-coccygeal area.
(i)	There are then further references to coccygeal pain. It is in that context that the CT scan of 4 February was taken. Any disc protrusion it showed was incidental.
(j)	From March 2016 Mr Lockwood was able to work full duties driving a ride on lawnmower.
(k)	On 9 November 2015 there is a note of the general practitioner that there is pain in the lower back while doing sit-ups. This would not justify a DRE Category II impairment.
(l)	On 3 March 2016 there is a note that plaintiff awoke with right lower pain and some pain down the right leg posteriorly down to the thigh. This occurred less than a week before the injury and there is no way of knowing whether this was simply a temporary flareup in accordance with various other flareups.
(m)	In respect of the activities of daily living if you accept that Mr Lockwood should not have had 5% WPI deducted for DRE Category II prior to the 9 March 2016 injury then ADLs are irrelevant because they only apply unless one has a DRE Category II injury not a DRE Category I. However if you accept DRE Category II deduction of 5% then the following is relevant.
(n)	In any event there is absolutely no evidence whatsoever in the medical records, statements or otherwise that Mr Lockwood would have had 2% WPI as a result of the ADLs before the 9 March 2023 injury. It is noted that 1% ADL is for someone unable to get back to previous sporting or recreational activities such as gardening, running or active hobbies. There is evidence in the various replies that he was playing rugby league until not long before March 2016.
(o)	There is no evidence whatsoever that in March 2016 or prior he was unable to return to previous recreational activities such as gardening, running and active hobbies. Additionally to get to 2% WPI for ADL’s Mr Lockwood would have had to be restricted in his usual household tasks such as cooking, vacuuming, making beds or tasks requiring equal magnitude such as shopping, climbing stairs or walking reasonable distances (paragraph 4.35 of the Guidelines).
(p)	There is no evidence to support the statement by the Medical Assessor that “it is also likely he would have attracted 2% for activities of daily living” before 9 March 2016; there is simply nothing to base this opinion on and indeed no history in the medical assessment certificate itself of any inabilities prior to March 2016 injury which would result in 1% or 2% for the ADLs at that time.
29.	In summary, the appellant submits:
“a) The methodology taken by the AMS to “assume” (in his words) Mr Lockwood had 5% whole person impairment (DRE II) before the 9 March 2016 injury is incorrect.
 b) The methodology taken by the AMS to additionally take into account the ‘ADLs’ before the 9 March 2016 injury is incorrect.
 c) Regardless, no evidence justifies or supports DRE II finding before the 9 March 2016 injury. 
d) Regardless, no evidence justifies or supports any deduction for ADLs prior to the 9 March 2016 injury.
We therefore say that the AMS, at best, should have found it was difficult or costly to determine the section 323 deduction in accordance with Section 323 (2) and then should have found a 10% deduction from the impairment, ie; he should have found 2.7% section 323 deduction resulting in 24% whole person impairment.”
30.	We fully agree with the appellant’s submissions for reasons that follow.
31.	A Medical Assessor is not entitled to speculate as to what any percentage impairment was before the subject injury.
32.	A Medical Assessor is tasked with assessing any impairment arising from a pre-existing condition or injury and providing full reasons as to why the previous condition or injury warrants a deduction under s 323 of the 1998 Act.
33.	The legislation does not provide form terms such as “would have” in respect of any impairment.
34.	This is particularly so in the present case where the Medical Assessor actually assessed 0% impairment for the pre-existing injury.
35.	It follows that, having done that, it does not make sense to then determine a 7% deduction.
36.	The appellant quite rightly concedes that there is certainly some evidence of a pre-existing condition, particularly as regards the radiological evidence.
37.	Section 323 of the 1998 Act states: 
“(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.”
38.	Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole) is relevant authority for s 323 of the 1998 Act. It is noted that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment.
39.	In Fire & Rescue NSW v Clinen [2013] NSWSC 629, Campbell J referred to D'Aelo v Ambulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365; and Cole. 
40.	Campbell J said at [32]:  
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s.323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.” 
41.	Of course a pre-existing condition or injury does not automatically invoke a deduction under 
s 323.The test is whether the pre-existing condition or injury actually contributes to the current impairment. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made. However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction.
42.	In our view, given the totality of the evidence, and particularly noting Mr Lockwood’s quite physically demanding work and his sporting regime, a deduction of one-tenth is appropriate and not at odds with all the available evidence.
43.	For these reasons, the Appeal Panel has determined that the MAC issued on 22 May 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:	W676/23	
Applicant:	William Lockwood	
Respondent:	Kempsey Shire Council	

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 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 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)	
1.Lumbar spine 	11/2/2005	Chap 3, p 13	P384-T15-03	
     0%	
       0%
	
        0%	
2. Scarring	11/2/2005	P 74; T 14.1		     0%	         0%	         0%	
3. Lumbar spine	9/3/2016	Chap 3, p 13	P384-T15-03	     26%	        1/10th
	        23%	
4.Scarring	9/3/2016	P 74; T 14.1		      1%	         Nil
	         1%	
5.					
		
6.					

Total % WPI (the Combined Table values of all sub-totals)                          
	 
                      24%