State of New South Wales (Ambulance Service of NSW) v Thomas [2021] NSWPICMP 86 (3 June 2021)

Last Updated: 17 June 2021

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 5 February 2021 State of New South Wales (NSW Ambulance Service) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (now a Medical Assessor and referred to herein as such), who issued a Medical Assessment Certificate (MAC) on 11 January 2021.
2. 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 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. 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.
5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

6. The respondent worker (the respondent/Mr Thomas) joined the NSW Ambulance Service in 2000 and worked as a paramedic for the Service thereafter. He is still currently employed there but now non-operational. On 17 July 2016 he suffered an injury to his non-dominant right shoulder when working with a colleague, lifting an obese female patient who was sitting on a stretcher. When the patient suddenly collapsed and fell forwards, Mr Thomas tried to prevent her from falling completely off the stretcher. As he moved, at a full arm extension, to catch the stretcher and patient from falling, he felt immediate pain and discomfort in his right arm and shoulder.
7. Mr Thomas attended Parkes Hospital where x-rays and scans were performed on his right shoulder. He then came under the care of his general practitioner, Dr Steven Scally. After undergoing conservative treatment, including hydrotherapy, physiotherapy and analgesic pain relief the respondent was referred to Dr Benjamin Cass, shoulder surgeon, for treatment. Dr Cass operated on the shoulder on 20 September 2016 with repair of the subscapularis tendon and revision of the biceps tendonesis. The reference to “revision of the biceps tendonesis” is in respect of surgery previously carried out by Dr Cass on Mr Thomas’ shoulder on 1 October 2013, referred to hereunder. With the development of worsening post-traumatic degeneration with avascular necrosis and further humeral head collapse, Dr Cass again operated on the respondent’s right shoulder on 1 February 2018. He carried out a hemi-arthroplasty procedure, with augmentation of the rotator cuff using a LARS artificial ligament. This was followed by intensive post-operative rehabilitation and physiotherapy.
8. The earlier surgery carried out by Dr Cass on the respondent’s right shoulder followed an injury sustained by Mr Thomas in 2013 while playing football. On that occasion he attended Parkes Hospital Emergency Department and was subsequently transferred to Orange Base Hospital where was admitted under the care of the on-call orthopaedic surgeon, Dr Evan Jones. Dr Jones performed shoulder reconstruction surgery. Dr Cass then operated on the respondent’s shoulder on 1 October 2013 to revise the fixation put in place by Dr Jones, tenotomise the biceps tendon, open the rotator interval and remove rotated fragments of the greater tuberosity as well as pulling the greater tuberosity down into play.
9. Mr Thomas says that he returned to his pre-injury on road paramedic duties and training in voluntary Fire and Rescue for three years without restriction until the incident of 17 July 2016.

PRELIMINARY REVIEW

10. 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.
11. 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 neither the appellant nor the respondent requested further medical examination by a Medical Assessor who is a member of the Appeal Panel, and the Panel considers that it has sufficient information with which to determine the appeal.

EVIDENCE

Documentary evidence

12. 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

13. 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

14. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

Appellant

15. In summary, the appellant submits that the Medical Assessor, Dr Anderson, demonstrably erred in his application of a deduction for prior injury under s 323 of the 1998 Act, and in his failure to give adequate reasons.
16. The appellant notes that the Medical Assessor deducted 10% from his assessment of the right shoulder to account for the effects of a documented pre-existing non-work related sporting injury suffered in 2013. The appellant notes what the Medical Assessor said in respect of the pre-existing condition at [11] of the MAC^[1]. As is indicated by this excerpt, it is well documented and accepted that Mr Thomas suffered from this significant pre-existing injury, which required surgery. There is also evidence indicating related degenerative change.
17. The appellant submits that the Medical Assessor has not specifically referred to s 323 in his certificate, simply stating that the pre-existing injury “...would reasonably account for a deduction of one-tenth.” The appellant submits that not only is such deduction at odds with the available evidence, but it is also an inaccurate proportion of the impairment attributable to a pre-existing injury under s 323(1) of the 1998 Act.
18. The appellant documents the findings of the Medical Assessor of restricted movement in the right shoulder and compares those findings with those found in the available notes of the treating specialist, Dr Cass^[2]. Based on these figures, the appellant submits that the range of motion figures indicate that the respondent suffered more that 50% of his current restricted range of motion after his non-work related sporting injury but prior to his work injury. The overall available post-surgery upper extremity impairment based on the documented range of motion figures is only 25% worse than the pre-work injury upper extremity impairment.
19. The appellant refers to the report of Dr Cass dated 17 March 2014^[3] in which he says that the worker may well require shoulder replacement or some cuff surgery as a result of the 2013 injury. The appellant also draws attention to the right shoulder x-ray taken on 1 August 2016^[4] which contains a history of previous surgery with arthritis, and AC joint degenerative changes identified.
20. The appellant submits that the one tenth deduction applied by the Medical Assessor is clearly and significantly at odds with the available evidence, and that a deduction in the order of 50-75% would be more consistent with the available evidence.
21. In respect of the alleged failure to give adequate reasons, the appellant draws attention to what Campbell J said in New South Wales (NSW Department of Education) v Kaur^[5] to the effect that a demonstrable error may occur where an assessor has not provided adequate reasons to sufficiently allow a court or decision making authority to determine whether an error of law or fact has been committed.
22. The appellant notes what the Medical Assessor says at [7] of the MAC under: “Details of any previous or subsequent accidents, injuries or conditions”^[6], and at [11] of the MAC referred to at [16] above. The Medical Assessor acknowledges that the 2013 incident was “significant” and that further degenerative changes occurred following the incident. He does not provide substantive reasons as to how the significant pre-existing injury and surgery could reasonably represent a deduction of only one tenth. He simply states that the pre-existing injury “...would reasonably account for a deduction of one tenth.”
23. The respondent seeks an amended MAC from the Appeal Panel

Respondent

24. The respondent’s submissions appear to be principally directed at the issue of whether the matter should proceed to an appeal panel, but submits that such a panel can probably deal with the matter on the basis of written submissions. As the President’s Delegate has determined that she was satisfied that a ground of appeal is capable of being made out, the Appeal Panel will consider the respondent’s submissions accordingly.
25. Having said that the Appeal Panel notes, to use two only of a number of examples in the respondent’s submissions, that the respondent asserts that the appellant’s submissions are variously “...a mere assertion of lay opinion from a lawyer writing submissions...” and that “To allow a mere lay solicitors [sic] opinion to challenge such a respected and reputable view based on no clinical evidence is merely not within the interest [sic] of justice.” The Appeal Panel does not accept such submissions. It appears to the Panel that the solicitor for the appellant was quite properly making submissions based on the evidence before the Medical Assessor and not seeking to express an opinion to be substituted for expert medical evidence.
26. The respondent submits that the appellant is alleging a demonstrable error because of the failure of the Medical Assessor to expressly refer to s 323(2) of the 1998 Act. This does not demonstrate “an error of logic or analysis”. According to the respondent, all it demonstrates is that the Medical Assessor, in exercising his clinical judgements as to what to include in his certificate, believed that a 10% deduction to be appropriate, and that no further comment was warranted.
27. The respondent asserts that the Medical Assessor was well aware of the previous incident in which he was involved, and that the complaint that he did not consider it “properly” amounts to the appellant seeking to cavil with the clinical judgement of the Medical Assessor as to what regard he should give it and what he should write about it. This is not on accordance with what Davies J stated in UGL Rail Services Pty Ltd v Attard^[7].
28. The respondent submits that the mere assertion of lay opinion from a lawyer writing submissions that there should have been a larger deduction does not make out a factual error or “an error of logic or analysis” (a term which appears on a number of occasions in the respondent’s submissions). It amounts to a lay person cavilling with the clinical judgement of the Medical Assessor. The respondent submits that the Medical Assessor rightfully applied a deduction based on his clinical examination of the worker on the day of assessment.
29. The respondent submits that the medical view of the Medical Assessor cannot be at odds with the available evidence, particularly given his reference to the pre-existing injury. The respondent asserts that the Medical Assessor has rightfully taken the available evidence into account and balanced that with his on the day assessment to provide a 10% deduction. The respondent notes that the Medical Assessor’s deduction was the same as that of Dr G Doig, who assessed the respondent on 30 March 2020^[8]. The respondent submits that in the absence of a clinical opinion to challenge the view that the 10% deduction was appropriate, or to suggest that such a deduction is at odds with the available evidence, a submission that the deduction was inappropriate cannot be maintained
30. The respondent takes issue with the use by the appellant of the range of motion figures found in the available notes of Dr Cass after the respondent’s non-work related sporting injury when compared with those found in the notes after the surgery carried out by Dr Cass on 1 February 2018. The respondent submits that this is not capable of demonstrating a factual error or an error of logic or analysis. All that it demonstrates is the Medical Assessor, in exercising his clinical judgements as to what to include in his certificate, did not think such matters warranted any particular comment.
31. The respondent notes that the Medical Assessor had regard to the reports of the treating surgeon, Dr Cass, when making his assessment of the deduction that should be made from the degree of whole person impairment (WPI) assessed by him, and took those reports into account when making that assessment. The reports of Dr Cass included that dated 17 March 2014^[9] in which Dr Cass says that in the long run, the respondent may well require shoulder replacement or some cuff surgery. The respondent also notes that, although the Medical Assessor had before him reports of the results of radiological investigations, it was a matter for his clinical judgement to consider whether such documents were to be considered relevant to his assessment and whether there should be a deduction for pre-existing injury, condition or abnormality.
32. In respect of the submission by the appellant that the Medical Assessor has failed to provide adequate reasons, the respondent relies on what Basten JA said in Vitaz v Westform (NSW) Pty Ltd^[10], namely that in the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail.
33. The respondent submits that there is no evidence that his right shoulder was symptomatic in the period prior to the work related injury, and whilst there is a clear history of the previous injury, this was considered by the Medical Assessor and a deduction of 10% was therefore applied. This impairment assessment was made pursuant to the Guidelines. Clearly the subject injury was the major contributing factor to the respondent’s condition and a one tenth deduction is therefore appropriate and not at odds with the evidence. Such deduction was, according to the respondent, confirmed by Dr Doig.
34. The respondent submits that there is no medical evidence to suggest that the 10% deduction made by the Medical Assessor was incorrect, nor was there a medico-legal opinion to suggest that a higher deduction was appropriate.
35. The respondent submits that the Medical Assessor gave significant consideration to the pre-existing injury and rightfully applied a deduction based on his clinical examination of the respondent.

FINDINGS AND REASONS

36. 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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC (see Siddik v Workcover Authority of NSW^[11] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales^[12]).
37. 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.
38. Dr Cass has the advantage of having treated the respondent both before and after the subject work injury on 17 July 2016. Mr Thomas suffered an injury to his right shoulder playing touch football in 2013. He refers to this injury and treatment therefor at [42] of his statement dated 5 August 2020^[13]. Mr Thomas notes that he underwent reconstruction surgery on his shoulder at the hands of Dr Evan Jones at the Orange Base Hospital.
39. The respondent then came under the care of Dr Ben Cass who provided a report to Dr M Hargrave on 1 October 2013^[14]. Dr Cass noted in that report that the respondent clearly had a four part proximal fracture with significant displacement which was fixed two weeks after the event by Dr Evan Jones in Orange. Dr Cass said:

“Evan has done a good job fixing 90% of the bones in good position. It is a notoriously difficult fracture. The loss of bone height and crushing down is something almost untreatable unless one puts an entire femoral head of graft or strut inside the bone which is something not routinely done. The Philos plate and screws were used. Evan then organised for Nigel to be reviewed by me in follow up as he was concerned about some of the fixation and whether we could make the outcome better.”

40. On review and after consultation with a colleague, Dr Cass performed further surgery on the shoulder on 1 October 2013 which he describes in detail in the report. He said that he would review the respondent in Dubbo in November and that “...a year down the track we will remove his plate and screws. He may require a total shoulder replacement in his 60s.”
41. Dr Cass wrote to Dr J Gale on 23 November 2013^[15] after speaking with the respondent on the phone. At that stage Mr Thomas reported to Dr Cass that he was doing straight arm raises, moving his shoulder well and doing hydrotherapy. Dr Cass advised on what he should do by way of rehabilitation and said that with respect to work, as soon as Mr Thomas could get elevation to 90 degrees and external rotation to neutral he could drive a car. He forecast a possible return to work “...at the 3 month mark and after x-ray review showing healing.”
42. In his next report to Dr Gale, Dr Cass said that:

“You would be aware that the plate position on the greater tuberosity is perhaps not ideal, but he has actually done very well and has been able to work in the garden and use his arm with heavy loads over the past few months.”

He went on to say that on examination he has forward elevation above 100 degrees and external rotation to 30 degrees. There was some tightness due to the plate and screws and stiffness in the shoulder, but also due to mal positioning of the greater tuberosity, and then said:

“A certain portion I can help by repeat surgery close to one year down the track, but for the present moment his x-ray shows good consolidation, no penetration of screws or further problems and excellent bone grafting and consolidation. I am happy for him to return to work.”

43. Dr Cass then described the duty statement of the applicant that he had read and was happy for the respondent to do the activities described therein, namely:

“...including frequent lifting between 5kgs and ground and bench level, lifting from 5kgs to 15kgs on an occasional basis including stretches, defibriating [sic] and the very rare lifting up to 47kgs including oxygen and first aid kit which would be lifted down low. I am happy for Nigel to do all of these and return back to his normal duties and I expect he will do quite well. He may have some pain and discomfort whilst doing these, but I am happy that he is not damaging his shoulder further or jeopardising our outcome.”

44. Dr Cass reiterated his plan to undertake further surgery at the one year mark with a new CT scan of the shoulder, and planned to remove the plates and screws, debride the greater tuberosity, decompress the subacromial space and release the shoulder. Dr Cass explained that this would not return the shoulder to normal, but would free Mr Thomas up at least another 10 to 15 degrees in all planes which would give a very nice improvement to him. Dr Cass also said that in the long run he may well require shoulder replacement surgery or some cuff surgery.
45. Dr Cass reviewed the respondent on 28 August 2016^[16] following the work accident on 17 July 2016 and after the x-ray and arthrogram of the right shoulder he ordered on 1 August 2016. The doctor referred to the previous reconstruction of the right shoulder and the fact that he had been able to get Mr Thomas back to work, notwithstanding that there was an element of avascular necrosis, ongoing stiffness and some discomfort. He had at that stage an elevation of 90 degrees, external rotation past neutral and was actually able to function and use the arm well. He then went on to record the history of the work accident and the subsequent problems experienced by Mr Thomas. Dr Cass said that in terms of future management, in the first instance it was at least deserving to try to reconstruct the shoulder and get it functional again, get the respondent back to work and out of pain. In response to questions that had arisen “...by the workers compensation about the case”, Dr Cass said:

“This is related to a new injury at work with a shift of the lesser tuberosity, in part it is related of course to his previous surgery but his shoulder was functioning very well and it does represent a new injury.”

46. Dr Cass operated on the respondent’s right shoulder on 20 September 2016 and reported to Dr Gale on that day^[17]. He concluded that report with the observation that:

“He is going to require a total shoulder replacement in the future; its entirely related to his work injuries. I will keep you informed as to when that is to be the case; hopefully it’s when he is in his 60’s, I doubt he is going to get to his 70’s and might even be in his 50’s. I will keep you informed.”

47. The respondent continued under the care of Dr Cass who reported regularly to the general practitioner. These reports dating from 24 October 2016 to 20 December 2017 together with reports of radiological investigations are in evidence^[18]. On 20 December 2017, Dr Cass reported:

“I called Nigel Thomas from rooms review today and I gave a detailed explanation of his films. I thank PRP, they have done some excellent diagnostic imaging. The first and most obvious thing to state is than Nigel unfortunately has just developed progressive avascular necrosis and collapse of his humeral head. His humeral head has now collapsed down by at least 2 cm probably more and on the MRI scanning has lost almost all of its cartilage with a large amount of fluid and synovitis setting in the joint. Thus his diagnosis is totally related to his first injury. The fixations we have attempted to try and get in good position but he has gone on to develop avascular necrosis which is a known complication of these kind of injuries”

Dr Cass went on to discuss the rotator cuff which he said is reasonable in supraspinatus and infraspinatus, but by no means normal, and the desirability of avoiding a reverse shoulder replacement as long as possible.

48. It is notable that Dr Cass diagnosed the development of progressive avascular necrosis and collapse of the humeral head as totally related to the applicant’s first injury. Prior to the surgery carried out by Dr Cass on 1 October 2013 following the first injury that year, he had discussed the risks and benefits of the procedure he was about to embark upon in the following terms:

“Nigel was totally aware of the risks and benefits of the procedure. We talked about infection, avascular necrosis, repeat surgery, total shoulder replacement and the fact it will be difficult for him to get back to be an active ambulance officer. Driving should not be a problem but lifting or moving patients with the injury will still be very difficult for him.”^[19]

49. The respondent was examined by Dr G Doig on 30 March 2020. In his report of that date Dr Doig refers to the previous fracture of the respondent’s proximal right humerus in 2013 while playing touch football, his subsequent treatment by the on-call orthopaedic surgeon at the Parkes Hospital Emergency Department and the referral to a specialist shoulder surgeon for revision surgery to be performed to try and improve the outcome. He notes that unfortunately, Mr Thomas experienced ongoing restricted movement following the surgery, although he did manage to return to pre-injury duties for three years until the incident of July 2016. He then describes the treatment by Dr Cass thereafter.
50. Dr Doig provides an assessment of WPI of 23% and then says:

“As there was a pre-existing at the shoulder a 10% deduction would apply as per the WorkCover Guides which would reduce the whole person impairment to 21%.

As outlined previously, there was a non-employment related, sporting injury to the right shoulder with apparent ongoing restrictions. If documented, active range of motion arcs are available following recovery from this injury, then a further, more substantial deduction may apply with respect to overall assessment.”

51. The Appeal Panel notes that active range of motion arcs are available in the reports of Dr Cass in evidence, noted for example at [44] above, and highlighted by the appellant at
    
    [8]-[10] in its submissions^[20]. The Panel is of the view that the deduction of 10% made by Dr Doig does not correctly reflect the appropriate deduction that should be made for the previous injury suffered by the respondent.
52. The Medical Assessor refers to the previous injury suffered by the respondent at [7] and [11] in the MAC. At [7] he says:

“Mr Thomas gives a history of a wrenching injury to his right shoulder complex which occurred in mid-year 2016. There had been a previous injury to that shoulder joint and the joint was already quite arthritic. This caused extensive further deterioration. There was an attempt to manage the condition without a shoulder joint replacement due to his relatively young age. Ultimately, in 2018 there was a shoulder joint replacement. This has given him a reasonable result although he continues to have of movement and power of the right shoulder complex.”

and

“Attention is drawn to the previous injury in 2013 to the right shoulder complex due to a football injury. This resulted in a fracture to the upper humeral neck. This was managed by internal fixation. Later there was a revision. Ever since this initial injury there has been progressive degenerative change.”^[21]

53. At [11] when addressing the deduction (if any) for the proportion of impairment that is due to previous injury or pre-existing condition or abnormality, the Medical Assessor says:

“There is evidence of a significant pre-existing condition of the right shoulder complex due to the football injury in 2013. This would reasonably account for a deduction of one-tenth. This reduces the whole person impairment from 26% down to 23%.”^[22]

54. The Medical Assessor describes the respondent’s right shoulder joint as “quite arthritic” following the previous injury to the shoulder and the “significant pre-existing condition...due to the football injury in 2013.” The Appeal Panel is of the view that, having regard to these comments alone, there is a degree of internal inconsistency in the MAC when the Medical Assessor then deducts one tenth only from the 26% WPI assessed by him. Further, such a deduction is at odds with the available evidence from Dr Cass, summarised above.
55. Section 323(2) states:

“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.”

56. The Appeal Panel is of the view that the Medical Assessor has not given appropriate regard to the available evidence when determining the deduction of one tenth from the 26% WPI assessed by him. The Panel is also of the view that the Medical Assessor has failed to give adequate reasons for the deduction made by him. These are demonstrable errors in the MAC.
57. The respondent relies upon the decision of Cole v Wenaline Pty Ltd^[23] to submit that the assessment must have regard to the evidence as to the actual consequences of the earlier injury, and that the extent that the later injury was due to the earlier injury must be determined. He submits that the Medical Assessor has done this. The Appeal Panel does not accept this submission. It appears that Dr Anderson has simply applied a one tenth deduction from his assessment on the basis of the occurrence of the earlier injury without determining the extent to which that injury contributed to the current level of WPI assessed by him. Alternatively, inadequate reasons have been provided for the deduction made by him.
58. The respondent also relies of what was said by Basten JA in Vitaz at [43] that:

“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”

59. The respondent submits that as there was no medico-legal opinion in evidence other than that of Dr Doig, the appellant’s submission that the Medical Assessor had failed to give adequate reasons should fail. The Appeal Panel does not accept this submission. There was medical evidence from Dr Cass which established a contest as to whether the previous injury did contribute to the level of impairment. That evidence did not have to be in the form of a medico-legal report for such a contest to be established. In any event, Dr Anderson recognised that there should be a deduction for the previous injury, so he recognised that there was a contest as such. The errors in his assessment were in failing to give adequate reasons for the deduction, and also in making a deduction which was at odds with the available evidence. The Appeal Panel has also highlighted the qualification in Dr Doig’s report, referred to above at [50]-[51], that should have led to him making a more substantial deduction with respect to his overall assessment.
60. The Appeal Panel does not accept the submission of the appellant that the available medical evidence indicates that a deduction in the order of 50-75% is appropriate for the effects of the previous non-work related injury. The deduction should be 25% for the previous non-work related injury. Twenty five percent of the 26% WPI assessed by Dr Anderson is 6.5%. The respondent therefore has 19.5% WPI which rounds up to 20% WPI. The Appeal Panel finds the respondent sustained 20% WPI as a result of the work-related injury on 17 July 2016.
61. For these reasons, the Appeal Panel has determined that the MAC issued on 11 January 2021 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)

Brett Batchelor

Member

Dr Drew Dixon

Medical Assessor

Dr Tommasino Mastroianni

Medical Assessor

3 June 2021

^[1] Appeal Papers p 30.

^[2] Appeal Papers pp 84-138.

^[3] Appeal Papers p 87.

^[4] Appeal Papers p 88.

^[5] [2016] NSWSC 346 at [26].

^[6] Appeal Papers p 28.

^[7] [2016] NSWSC 911 at [42]- [43].

^[8] Appeal Papers p 69.

^[9] Appeal Papers p 87.

^[10] [2011] NSWCA 254 (Vitaz) at [43].

^[11] [2008] NSWCA 116.

^[12] [2013] NSWCA 1792.

^[13] Appeal Papers p 82.

^[14] Appeal Papers p 84.

^[15] Appeal Papers p 86.

^[16] Appeal Papers p 89.

^[17] Appeal Papers p 91.

^[18] Appeal Papers pp 93-112.

^[19] Appeal Papers p 84.

^[20] Appeal Papers pp 10-11.

^[21] Appeal Papers p 28.

^[22] Appeal Papers p 30.

^[23] [2010] NSWSC 78 at [30].