Giardullo v CCH Group Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Giardullo v CCH Group Pty Ltd [2022] NSWPICMP 365
APPELLANT:	Robert Michael Giardullo
RESPONDENT:	CCH Group Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Dr David Crocker
MEDICAL ASSESSOR:	Dr Margaret Gibson
DATE OF DECISION:	20 September 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal by worker against ½ section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; whether deduction for additional impairment caused by subsequent events lawful; whether subject injury a material factor to such impairment; Held – section 323 of the 1998 Act applies only to prior events; consideration of Johnson v Workers Compensation Commission (Johnson); observations as to why template changed to delete question 8(g) following Johnson; appellant within two categories of State Government Insurance Commission v Oakley ; Medical Assessment Certificate revoked and nil deduction for s 323 of the 1998 Act substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 April 2022 Robert Michael Giardullo, 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 (MA), who issued a Medical Assessment Certificate (MAC) on 30 March 2022.
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.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The 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.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 28 February 2022 this matter was referred to the MA for an assessment of WPI caused by injury to the lumbar spine and the skin between 21 August 1997 and 31 May 1999. The face of the referral indicated “Note: This matter is referred as a threshold dispute only – the medical assessor is to assess as the whole person impairment regardless of the date of injury.”
The referral also mentioned prior settlement in WCC 3058/17 for 11% WPI.
The MA noted that Mr Giardullo was employed as a labourer who was required to perform physical arduous work over the referred period including the movement of heavy pumping equipment.
He had an onset of severe pain in his lower back which radiated down his right leg. He came under the care of Dr Michael Besser a neurosurgeon. He came to surgery in August 2000.
The appellant was not able to return to his pre-injury duties, but had attempted various other jobs, including working for a while as a coach driver. Whilst doing so, Mr Giardullo further injured his back on 14 February 2005 whilst working for Mountain Beach Safaris when lifting baggage on his first day. This put him off work for some months and he again consulted Dr Besser, who at that stage recommended against further surgery.
In 2014/15 the appellant had worsening of his lower back pain and left leg pain. A steroid injection gave him some relief, as did chiropractic and physiotherapy treatment.
Mr Giardullo received various amounts of compensation. Regrettably the orders and agreements were not lodged, although the MACs issued as part of those different proceedings were. MACs dated 16 December 2010 from AMS (Approved Medical Specialist), Dr Thomas Silva and 7 September 2017 by AMS Dr Mark Burns were in evidence.[1] We shall return to this subject in our reasons.
[1] Appeal papers pp 59 and 71 respectively. Dr Silva’s report was erroneously referred to in the Application to Resolve a Dispute (ARD) index as being dated 18 April 2012.
On 22 June 2020 Mr Giardullo came to surgery with Dr Richard Parkinson, neurosurgeon. A disc replacement at the L4/5 articulation was carried out together with an anterior L5/S1 fusion.
The MA found a WPI of the lumbar of 24% from which he deducted one-half pursuant to the provisions of s 323 of the 1998 Act. In his actual Table 2 Certificate, the MA said, when referring to the one-half deduction indicated therein:[2]
“* This is expressed as a fraction, although strictly speaking represents the value of 12% WPI calculated from the previous lower back condition.”
[2] Appeal papers p 23.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by a Medical Assessor who is a member of the Appeal Panel. The matter concerned the application of s 323 of the 1998 Act and the relevant evidence was already before us.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

The MAC

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

Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 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.
The appellant challenged the one-half deduction made by the MA in applying the provisions of s 323 of the 1998 Act to the subject injury.

The MAC

The MA said in answer to the templated question as to previous injuries:[3]
“There is no history of previous injury to his lower back before 1997.”
[3] Appeal papers p 18.
In relating the history at [4] of the MAC, the MA noted that Dr Michael Besser had carried out a discectomy at the L5/S1 articulation in August 2000. He noted further that Dr Parkinson had performed the disc replacement at L4/5 and a fusion at L5/S1 in 2020.
The MA then described the appellant’s subsequent injury of 2005. The MA said:[4]
“….It was identified that he had a disc protrusion at the L4/5 level deviated towards the left. (It is reminded that the previous condition to his lower back which is effectively the issue at stake was located at the L5/S1 articulation with radiation down his right leg. Therefore, this event of 2005 is very different and affects a different lumbar level. Nevertheless, this was managed in the year 2000 with a disc replacement at L4/5. At the same time the fusion was conducted at L4/S1.)”
[4] Appeal papers p 18.
In his summary at [7] the MA said that after the subject lower back injury, the appellant:
“...was managed conservatively for the next 15 years or so, although a final surgical procedure was conducted in mid-year 2020 which consisted of an anterior approach where the L4/5 disc was replaced and the L5/S1 articulation was fused. This gave him limited improvement, particularly easing the pain down his left leg although ever since then he has been grossly dysfunctional with an extraordinarily stiff back.”[5]
[5] Appeal papers p 19.
In the templated questions at [8] of the MAC in answering a question as to whether there were any previous injuries, pre-existing condition or abnormality, the MA said:[6]
“Attention is drawn to the subsequent condition of his lower back, particularly the event of 2005.
His presenting condition at this assessment is a combination of all of his previous lumbar spine injuries and the effects of two surgical procedures. Although he had a very stiff lower back, there were no features of radiculopathy.”
[6] Appeal papers p 20.
In considering the opinions of other specialists before him at [10c], the MA noted that all the specialists including the MA considered that Mr Giardullo was appropriately assessed pursuant to lumbar category IV. The MA said:
“…Specialist Orthopaedic Surgeon, Dr Robin Diebold in his report of 08/04/21 does not apply any deductions. Dr Drew Dixon in his report of 19/01/21 together with Dr Tom Silva in his report of 16/12/10 and Dr Mark Burns in his report of 07/09/17 all deduct the previous assessment of whole person impairment after the surgical procedure in the year 2000 when Mr Giardullo was in DRE Lumbar Category III. This is very appropriate.”
In explaining the amount of the deduction he made, the MA said:[7]
“The value of the previous assessment identified by Doctors Dixon, Silva and Burns should be deducted from the calculated whole person impairment at this assessment. Dr Tom Silva and Dr Mark Burns both calculate this at 12%, with which I would agree. Therefore, 12% should be deducted from the whole person impairment assessed at 24%.”

SUBMISSIONS

[7] Appeal papers p 21.

The appellant

The appellant submitted that the methodology used by the MA was incorrect. He referred to the two earlier opinions of the two AMSes Dr Thomas Silva and Dr Mark Burns.
Dr Burns had found there to be no s 323 deduction applicable, it was submitted, although Dr Burns had estimated that the subsequent impairment caused by the 2005 accident had increased the appellant’s loss and impairment (this being a Table of Disabilities assessment) by one fifth.
Approved Medical Specialist Dr Silva in his earlier MAC of 16 December 2010 was only assessing the 2005 injury, but found that the subject injury had been aggravated in 2005, and, it was submitted, he accordingly found that a deduction of 75% should be made pursuant to s 323.
It followed, it was argued, that therefore the MA had miscalculated when he concluded that Dr Silva had recommended a 50% deduction, as the figure should have been 25% in any event.
Mr Giardullo also referred to a report of Dr Drew Dixon of 16 December 2020, which advised that no deduction was applicable for the subject injury.
Moreover, the appellant submitted the MA made a factual error when he said that Dr Drew Dixon had made a deduction of one half, as a perusal of his report of 16 December 2020 shows that in fact there was no deduction made pursuant to s 323.
The methodology used by the MA in deducting the previous assessment of 12% was a demonstrable error, as we understood the submission.

CCH Group Pty Ltd (the respondent)

The respondent employer alleged that in fact there had been a previous back injury on 23 December 1996. It then referred to the subject injury, and three subsequent injuries:
·        14 February 2005;
·        14 July 2005;
·        14 May (non-work related), and
·        9 November 2007 (non-work related).
The respondent submitted that “the MA had to make an allowance for injuries other than [the subject claim].”
The respondent submitted that imaging following the 2005 injury revealed pathology at a different level of the lumbar spine, the L4/5 disc. It noted that the 2020 surgery consisted of both a L4/5 disc replacement, and the fusion of L5/S1.
It was open to the MA to find broadly that:
· the subject injury caused damage to the L5/S1 disc, and
· the injury of 14 February 2005 caused damage to the L4/5 disc.
The MA had to determine the level of impairment caused by the subject injury, and his assessment of 24% WPI was consistent with the relevant criteria. The s 323 deduction of 50% was open to the MA, we understood the respondent to submit, as the MA needed to take into account the 14 February 2005 injury. The subsequent surgery in 2020 supported the approach taken by the MA to his task in assessing the application of s 323.

DISCUSSION

There is no legislative provision permitting the deduction of WPI for subsequent injuries, although, as will be seen, there is authority from the Court of Appeal. Section 323 provides relevantly:
“323 Deduction for previous injury or pre-existing condition or abnormality
(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.”
(Emphasis added).
The previous injury or pre-existing condition or abnormality refers to a time prior to the subject injury, and we note the finding by the MA that there was no previous injury to the appellant’s back prior to the subject injury. Although the respondent mentioned an alleged injury in 1996, it did not develop its submission, and we were not referred to evidence in that regard.
Accordingly, the MAC must be revoked.
The real question concerns the parties’ submissions regarding the subsequent history of Mr Giardullo’s back complaints. In that regard, the Panel has the assistance of two prior MACs which have in one way or another considered the subject injury’s role in that history. In view of the somewhat confusing summary given by the MA as to both the approach taken by other medical practitioners and the basis of his application of s 323, with respect, it is necessary to consider the relevant evidence.
The first MAC was from Dr Thomas Silva, dated 16 October 2010, as indicated above.
Dr Silva had been asked to assess the back injury of 14 February 2005, which, it will be remembered, occurred whilst Mr Giardullo was lifting baggage as part of his then job as a coach driver. Dr Silva was also tasked to assess an injury to the cervical spine on 15 July 2005.
Dr Silva took a history of the L5/S1 surgery with Dr Besser in 2000. Dr Silva mistakenly assumed that the injury had occurred in the same year, but as has been seen, it was between 21 August 1997 and 31 May 1999 that Mr Giardullo was a builder’s labourer for two and a half years. Nothing turns on that error. At [7] of the MAC[8] Dr Silva said:
“I think on 14/02/2005 Mr Giardullo aggravated the previous back injury which required a lumbar laminectomy in the year 2000.”
[8] Appeal papers p 64.
The following question and answer appeared at [8g] of the MAC:[9]
“g) Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.
Yes. I refer you to the body of my report where under past illnesses there has been a subsequent neck injury in 2007 and a subsequent lumbar spine or low back injury on 14/05/2006, both treated conservatively. These will be considered in the deductions.”
[9] Appeal papers pp 65-66.
Dr Silva advised at [11] that Mr Giardullo had suffered previous injury or pre-existing condition or abnormality in 2000 when he underwent a lumbar laminectomy in the form of L5/S1 discectomy. The “major injury that required a laminectomy was in the year 2000” Dr Silva said, although as indicated the injury was actually the subject injury. There was no injury in 2000. Dr Silva said:[10]
“For the lumbar spine the deductible proportion is three-quarters of a total of 12% WPI. That three-quarters deduction or the 9% WPI deduction is for the year 2000 lumbar Iaminectomy. You will note that there was no further laminectomy following the 14/02/2005 injury. Therefore the major injury in the proportion of three-quarters accounting for his current WPI is reasonably attributable to the year 2000 Iaminectomy. You will note that he worked only one day with his then employer on 14/02/2005 when he developed back pain after lifting some suitcases.”
[10] Appeal papers p 68.
If we accept Dr Silva’s explanation, it follows that the subject injury was a material factor in the pathology caused by the 14 February 2005 injury. Dr Silva’s estimate was that the subject injury was responsible for ¾ of the impairment caused by the injury on 14 February 2005.
The second MAC was given on 7 September 2017, some seven years later. The AMS, Dr Burns, was tasked to assess the subject injury pursuant to the Table of Disabilities. Dr Burns was asked to assess the losses and impairments for injuries that included the back.
Dr Burns found at [7] that the appellant had sustained an L5/S1 disc herniation with a right sided radiculopathy due to the subject injury, with the development of a left lateral disc herniation with a left L4 non verifiable radicular complaint.
Dr Burns said at [10b] of the MAC:
“His impairment to both his back as well as loss of efficient use of the left leg at or above the knee and his sexual dysfunction were increased by this subsequent accident and have never returned to the levels they were at before the accident in 2005. I believe that a one fifth deduction would be [appropriate] for each of these areas.”
Like Dr Silva, Dr Burns thus confirmed that the subject injury had contributed to the impairment caused by the 14 February 2005 injury.
We have referred to the templated question at [8g] of Dr Silva’s MAC of 12 October 2010. Since the decision of Garling J in Johnson v Workers Compensation Commission[11] and the confirmation of his Honour’s decision in Secretary, Department of Communities and Justice v Johnson,[12] question 8g has been removed from the template. Prior to these decisions it had been thought permissible not to include in an assessment of WPI that which had been caused by a further injury subsequent to the subject injury.
[11] [2019] NSWSC 347.
[12] [2019] NSWCA 321 McFarlan JA agreeing with Emmett AJA and Simpson AJA.
In the Court of Appeal Emmett AJA considered common law causation principles, beginning at [48] with a reference to Roman law regarding liability for the death or injury to a slave as recorded in Justinian’s Digest, published in AD 533. At [53] he said:
“53. In common law contexts, an injury or incapacity may be attributable, in the legal sense, to more than one cause operating concurrently. - There is no difference between the legal view of causation in tort and causation in the field of workers compensation.… It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a, novus actus interveniens.”
(Authorities omitted).
His Honour said at [70], referring to State Government Insurance Commission v Oakley:[13]
“70. The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the Worker as a result of the First Injury. … There are three possible categories where an earlier injury is followed by a later injury, as follows:
·Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
·Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
·Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
(Emphasis as written).
[13] (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003, pp 67, and 57.

At [76] Emmett AJA in applying these principles to the case before the Court, said at [76]:
“….the Appeal Panel failed to inquire properly as to whether, by reason of the First Injury, the Second Injury was more serious than it would have been had the First Injury not occurred. If that were the case, it would follow that there was a causal connection between the First Injury and the degree of permanent impairment of the Worker at the time of the examination of the Worker by the AMS.”
As indicated, both Dr Silva and Dr Burns found that the subject injury had contributed to the impairment caused by the second injury - to the extent of ¾ by Dr Silva, and 1/5^th by Dr Burns. Thus it was the opinion of two AMSes seven years apart that the subject injury had contributed to the impairment caused by the second injury of 14 February 2005.
We note that Dr Diebold also advised that 75% of Mr Giardullo’s current impairment was due to the subject injury.[14] Dr Diebold was critical of the contribution assessed by Dr Burns of 1/5^th, and argued that the contribution from the subject injury should have been 75% to the current WPI (as indeed Dr Silva had found.) Be that as it may, it is clear that the medical practitioners are agreed that the subject injury was a material factor in the cause of Mr Giardullo’s current impairment, Dr Drew Dixon not contributing to this issue in his report of 19 January 2021. In particular, the opinions expressed in the MACs of Dr Silva and Dr Burns are persuasive, being independent of the parties, and we concur with their findings that there was a contribution from the subject injury to the appellant’s current impairment. The precise percentage is of no moment.
[14] Appeal papers p 101.
It follows therefore that there should be no deduction made pursuant to s 323, and that, the subject injury being a material factor in causing Mr Giardullo’s current impairment, there is no basis for any further deduction.
The submissions of the parties were based on a misconception of the current law, with respect. There was no basis for the respondent’s submission that “the MA had to make an allowance for injuries other than [the subject injury].” It was not suggested that the 14 February 2005 injury was a novus actus interveniens, as it was found to have been an aggravation of the subject injury, and was therefore a material causative factor to the current level of impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 March 2022 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

Matter Number:	W624/22
Applicant:	Robert Michael Giardullo
Respondent:	CCH Group Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

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)
Lumbar spine	21.8.97 – 31.5.99	P.29 T 4.2	P 384 T 15-03	24	Nil	24
Scarring	21.8.97 – 31.5.99	P 74 T 14.1	0	0
Total % WPI (the Combined Table values of all sub-totals)					24%

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established