DETERMINATION OF APPEAL PANEL	
	
CITATION:	Fardell v Clinton Industries Pty Ltd [2022] NSWPICMP 272	
		
APPELLANT:	Ian Patrick Fardell	
		
RESPONDENT:	Clinton Industries Pty Ltd	
		
Appeal Panel:	Member Elizabeth Beilby
Medical Assessor David Crocker
Medical Assessor James Bodel	
		
DATE OF DECISION:	11 July 2022	
		
CATCHWORDS: 	wORKERS cOMPENSATION-    Application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction; Held - the Appeal Panel determined that the Medical Assessment Certificate (MAC) issued on 27 October 2020 should be revoked, and a new MAC should be issued.	

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
1.	Ian Patrick Fardell (the appellant) relies on a ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) namely that the Medical Assessment Certificate (MAC) contained a demonstrable error.
2.	The delegate was 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. 
3.	The appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute had been assessed by Dr Tim Anderson, Medical Assessor, who issued a MAC on 27 October 2020. The appellant had been assessed as having a 24% whole person impairment however a deduction of one-third was made resulting in a finding of 16% whole person impairment (lumbar spine). 
4.	The matter was considered by an Appeal Panel who confirmed the Medical Assessor’s assessment by way of determination on 16 April 2021. 
5.	The matter was then subject to judicial review proceedings before Justice Harrison in the Supreme Court of New South Wales. Judgment was handed down in the matter of Fardell v Clinton Industries Pty Ltd [2022] NSWSC 111 on 15 February 2022.
6.	The Court ordered that the matter be remitted back to a different Appeal Panel for determination according to law.
7.	The Medical Appeal has now been considered by the presently constituted Medical Appeal Panel.
8.	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.
9.	The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
SUBMISSIONS 
10.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
11.	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. 
12.	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.
PRELIMINARY REVIEW
13.	The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
14.	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 there had been an adequate examination conducted by Dr Anderson with his findings clearly shown in the MAC. Further, the only issue that the Appeal Panel needs to consider is whether there has been appropriate deduction pursuant to s 323 of the 1998 Act.
Medical Assessment Certificate
15.	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. 
-	In 1989 he developed pain in his lower back. This was managed by a discectomy at the L4/5 level, which gave him improvement although ever since then, there was still continuing pain.
-	Mr Fardell gives a history of severe low back pain which started in late 1999 when he was standing up from bending down to pick up a relatively light weight component. It was identified that there was discogenic pathology at the L4/5 level. This was managed by a disc replacement several years later under the care of specialist spinal surgeon, Dr Robert Kuru.
Later there was a further deterioration. There was a trial of a spinal cord stimulator which initially seemed to be quite successful, but later when it was permanently implanted, was very much less effective and has subsequently been completely removed. He continues with gross dysfunction in his lower back with radiculopathy down the left leg. 
-	In 1999, Mr Fardell had a discectomy at the L4/5 articulation. After this more recent event, the specific clinical management was a disc replacement. This was a more substantial clinical intervention. With the extensive pre-existing condition from 1989, there would reasonably be a significant deduction. In evaluating this pre-existing condition with a disc excision with the much more recent event where there was a disc replacement, I believe that there should be a one-third deduction for the pre-existing condition and that the event of 30/03/99 would constitute two thirds of the current impairment.

Supreme Court Proceedings
16.	In the Supreme Court proceedings, it was submitted before Justice Harrison that the Appeal Panel erred in law (including jurisdictional error) when it held that the AMS had correctly applied the law when considering a s 323 deduction. 
17.	The plaintiff referred to the Approved Medical Specialist’s (AMS) reasoning at paragraph 11 of the MAC where the AMS stated that after the more recent event, the specific clinical management was a disc replacement and observed that this was a more substantial clinical intervention than the discectomy. The AMS’s reasoning was therefore confined to “with the extensive pre-existing condition from 1989, there would reasonably be a significant deduction”. 
18.	It was complained that the AMS had failed to give any reasons to explain how or why the pre-existing condition from 1989 contributed to the impairment that has been assessed in October 2020. The plaintiff referred to the opinion of Dr Bosanquet, particularly the report of 29 March 2017, whom it was said had applied the correct test and opined that he could not say that the current impairment was greater than it otherwise would have been when there was no evidence indicating that a prior factor caused or contributed to the impairment.
19.	His Honour Justice Harrison referred to the decision of Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole). In that decision his Honour commented that Schmidt J was considering a case with similar facts. In granting relief, her Honour described how the Appeal Panel had incorrectly applied a s 323 deduction.
“It is apparent from the way in which the majority reached its conclusion, that it proceeded on the basis of an assumption. The assumption was that even though the treatment of the first injury to the plaintiff’s spine in 1976 had succeeded, with the results to which a dissenting member of the panel referred, the mere fact of the existence of that prior injury, ‘irrespective of outcome’, resulted in impairment which must have contributed to the impairment which arose after the second injury. As the majority explained, it was of the view, ‘hypothetically’ that if the plaintiff had been examined before the second injury, given his history, he would have been assessed as suffering a 10% whole person impairment, under AMA5.”
The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of assumption or hypothesis, that once a particular injury has occurred, it will always, irrespective of outcome, contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction will be difficult or costly to determine.”
20.	Her Honour then explained the correct legal reasoning to be observed when applying a deduction pursuant to s 323.
“What section 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by that section.”
Justice Harrison found that making a one third deduction under s 323, the AMS had failed to provide the evidentiary basis in determining whether the proportion of the plaintiff’s current injury was in relation to the previously existing injury and if so, what proportion. Simply put, the AMS did not apply steps 2 and 3 of the legal test set out by Justice Schmidt in Cole as there it must be established that for a deduction to be made it must be established that “the pre-existing injury, the pre-existing condition or abnormality caused or contributed to that impairment.” 
21.	This error was replicated by the Appeal Panel in its decision dated 16 April 2021.
Present Determination
22.	The ambit of the present dispute is relatively narrow. There is no dispute that the appellant is assessed as having a 24% whole person impairment of the lumbar spine at the time of assessment.  
23.	The real dispute is whether there should be any deduction pursuant to s 323 of the 1998 Act and if so what it should be. 
24.	Section 323 provides a mechanism for there to be a deduction made for previous injury or pre-existing condition or abnormality in the following terms: 
(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. 
25.	In respect of the pre-existing condition, the Appeal Panel has considered that Mr Fardell complained of pain and disability in his lower back with the radiation of pain into both legs in June 1989 (page 34 of the Reply).
26.	On 25 August 1989 the appellant underwent an L4/5 laminectomy. Whilst the applicant had a generally good outcome from that surgery, there does not appear to be a complete resolution of his symptoms. 
27.	Dr Negus on behalf of the appellant in a report dated 21 March 2018 confirmed that following surgery the appellant’s pain did not settle fully and he was referred to a number of pain specialists.
28.	Further, the evidence discloses that the back pain the appellant experienced excluded him from performing his duties as an auto-electrician and necessitated his retraining in a different vocation ultimately as a clerical worker.
29.	Dr Bleasel in a report dated 9 April 1990 recorded 
“His present complaints are of a sense of heaviness in both legs with numbness of the legs, the left worse than the right. There is a tingling sensation in the legs which radiates up to his spine and when he stands there was a burning sensation that travels from his feet to his knees.”
30.	This is confirmed in a further entry from Dr Bleasel “He suffers from leg pain which is relieved by walking about … he has numbness in his left foot and low leg and has tingling in the left foot.” 
31.	The Appeal Panel has therefore formed the view that the appellant did suffer from a pre-existing impairment which included radiculopathy subsequent to the surgery in August 1989. 
32.	The Appeal Panel has concluded that the pre-existing injury had made a contribution to the impairment assessed after the pleaded injury.  It is unlikely that the a disc replacement surgery would have been offered in the absence of previous surgery, this is a material contribution to the applicants present condition. The applicant has returned to his pre-1989 condition and he has continued to endure ongoing symptomatology arising from the same lumbar level which was operated on. 
33.	The next step is to determine what proportion of the impairment is due to the first injury. In relation to this issue, the Appeal Panel has formed the view that a 10% deduction is appropriate. The assessment would be categorised as too difficult to determine and as such the 10% deduction is appropriate. Further the Appeal Panel has formed that the view that a 10% deduction is not at adds with the available evidence. 
34.	For these reasons, the Appeal Panel has determined that the MAC issued on 27 October 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION 
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

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 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 NSW workers compensation guidelines 	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
	% WPI 	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)	
1.Lumbar spine	30/3/1999	Ch 4 p 24	p 384 
T 15-03	24%	1/10th
	22%	
Total % WPI (the Combined Table values of all sub-totals)	22%	

Elizabeth Beilby
Member

Dr David Crocker
Medical Assessor

Dr James Bodel
Medical Assessor
11 July 2022