Failure to determine the degree of impairment due to the pre-existing condition
84The evidence was that the underlying condition had been asymptomatic throughout Mr Elcheikh's life, despite the heavy work he performed for the first defendant from 1997. Before 2004, when he was in his 30's, he had suffered no symptoms at all. He continued his heavy work, even after he began experiencing symptoms. The pain caused by the deteriorating condition of his spine was eventually so severe that he had to cease his work in 2008, but he was then able to undertake more sedentary work. His condition finally became so severe that he required surgery in 2010, with the final result that he could work no more.
85Mr Elcheikh's case was that its focus on the surgery undertaken in 2010, rather than on the injury suffered to his spine at work and the contribution of the underlying condition to the impairment which resulted, had led the Appeal Panel into further error. There was no evidence that in the absence of the work injury, Mr Elcheikh would have required surgery for his pre-existing condition. It had been asymptomatic prior to the work injury. The result of the Appeal Panel's approach was that like the medical specialist, it failed to consider whether his pre-existing condition had contributed to his level of post work injury impairment, as s 323 required.
86The first defendant's case was that the Appeal Panel had accepted the correctness of the conclusion reached by the medical specialist, adopting his reasons. That course was properly open to it. The medical specialist had reached his conclusions relying on his own expertise, the radiological evidence, and the expert opinions provided to him. Notwithstanding his sympathy for the views of Dr Bornstein, who considered that the pre-existing condition was the sole reason for Mr Elcheikh's impairment, the medical specialist had accepted that the work injury was a substantial contributing factor to the impairment, which he assessed at 50%. It submitted that there was no error in the Appeal Panel's approach.
87It seems to me that this submission cannot be accepted.
88Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion:
"on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'."
89As discussed in Cole v Wenaline Pty Limited at [30], that assessment cannot be made on the basis of an assumption or hypothesis that a pre-existing condition contributed to the impairment flowing from the subsequent injury. It has to have regard to the evidence as to the actual consequences of the pre-existing condition.
90The Appeal Panel referred to the medical specialist having directly addressed this question by identifying that the surgery had been carried out for two purposes, one to treat Mr Elcheikh's pain, which 'could be seen as a consequence of the work-related injury' and the other 'to treat the effects of the pre-existing Scheuermann disease'. The Panel agreed with that conclusion.
91It noted, correctly, that the fact that the pre-existing condition had been asymptomatic did not preclude it from contributing to the impairment being assessed. Nor, however, could it be assumed that an asymptomatic condition did contribute to the impairment. Whether or not there had been any contribution had to be determined on the evidence, which included the competing specialist opinions on that matter, as well as various other evidence.
92The Appeal Panel considered that the medical specialist had 'clearly explained' how the pre-existing condition had contributed to the assessable impairment. It said that it agreed with his reasoning and conclusions, but did not explain why.
93Even approaching the Appeal Panel's reasons in the way discussed in Wu Shan Liang, in the circumstances, given that it was dealing with an appeal from the medical specialist's conclusions, that approach did not satisfy the obligations imposed upon it to consider and resolve the issues raised on the appeal, to which the parties had directed their submissions. It had to give reasons for its conclusions, given the competing evidence. The reasons given were inadequate, as I have explained. That reflected that the Appeal Panel had failed to engage with and determine the challenge to the correctness of the decision reached as to the deduction. That challenge had to be resolved on the basis of the relevant evidence.
94The medical specialist plainly considered that the evidence established that the Scheuermann's disease, completely asymptomatic and something of which Mr Elcheikh learnt only after treatment for his workplace injury was sought, was primarily responsible for his impairment. In reaching that conclusion he had to consider not only the evidence of the conflicting expert opinions about whether this condition had contributed at all to the impairment, but also the other evidence which shed light on this question. While the medical specialist referred to the various reports in evidence and identified which he preferred, he did not explain why. He also did not refer to the evidence that the pre-existing condition had been asymptomatic, nor did he explain what the other evidence showed its contribution to the resulting impairment to have been.
95An asymptomatic condition may or may not contribute to a resulting impairment. While reasons may be shortly given, in the event of a contest, not only the conclusion reached, but also its basis on the evidence has to be revealed by a medical specialist. In this case, the conclusions which the medical specialist had reached were contradictory. They had been challenged on appeal as incorrect. The Appeal Panel was thus obliged to consider and resolve that challenge. It failed to do so.
96The arbitrator had determined that Mr Elcheikh had suffered a compensable injury as the result of his heavy work between 1997 and 2007, for which the former employer was liable. The nature of that injury was an aggravation of a previously asymptomatic condition, not as the result of any particular, identifiable event, but rather as the result of the consequences of the ongoing heavy work which he had performed over that time on his spine. The notional date of the injury specified was 1 January 2007.
97The medical specialist, having initially expressed the opinion that Mr Elcheikh's work 'was very heavy' and that over the years it would have aggravated his underlying condition, finally concluded that Mr Elcheikh should have 'the benefit of the doubt' as to the contribution of his work to his impairment, observing that there 'there was no history of any injury'.
98In this statutory scheme, those conclusions are difficult to understand.
99His first opinion, that Mr Elcheikh's work had aggravated his pre-existing condition, accorded not only with the arbitrator's decision, but in terms of the definition in s 4 of the Act, was itself also a conclusion that there had been an 'injury' suffered as the result of his work. The medical specialist's later conclusion that there was no history of any injury, not only conflicted with his earlier conclusion, it was also inconsistent with the history given by Mr Elcheikh, to which the medical specialist had referred and which he did not indicate he doubted. That history was that the underlying condition, undiagnosed before the work injury, had been asymptomatic and that the pain which he had only begun suffering 2004, when he first sought treatment, had resulted from his heavy work. That was a history of injury at work about which there could be no doubt, given the arbitrator's determination.
100Having determined the level of Mr Elcheikh's resulting impairment post surgery to be 22%, the medical specialist had to determine whether the pre-existing condition had contributed to that impairment. In doing so, he was not entitled to call into question the arbitrator's decision that the injury had been caused by Mr Elcheikh's work. The medical assessment had to proceed on the basis that it had.
101The evidence was that the aggravation of Mr Elcheikh's pre-existing condition which resulted from his work, was significant. It is apparent from his final conclusions that the medical specialist considered that the major cause of the impairment was the pre-existing condition. That was presumably why he said that he gave Mr Elcheikh 'the benefit of the doubt' in concluding that it had contributed only 50% to his impairment, a conclusion which he described as 'realistic'.
102The medical specialist also considered, however, that if Mr Elcheikh had been assessed before surgery was required, he would have fallen into DRE category II, which has a 5-8% whole person impairment range. He considered that he would then have been assessed at 7%. After surgery the level of his impairment brought him into category DRE IV, which has a 20-23% impairment range. Of itself, that suggests that the impact of Mr Elcheikh's work on his pre-existing condition was considerable.
103It is in that context that the deduction of 50%, said by the medical specialist to be 'realistic' and made by giving Mr Elcheikh 'the benefit of the doubt' that his work had contributed to his impairment, was challenged on appeal as involving a wrong approach to the requirements of s323 and having resulted in the wrong conclusion.
104The Appeal Panel approached what it had to determine by adopting what the medical specialist had asked himself as to whether the underlying condition was a necessary factor in the decision to carry out the surgery undertaken in 2010. He concluded that it was, observing that 'if not for the underlying Scheuermann's disease, there is no way that surgery would have even been considered'. If this was a relevant consideration in the factual circumstances, what clearly also required consideration, given that the condition had been asymptomatic, was whether, without the impact of his heavy work the pre-existing condition would have required such surgery.
105That, however, was not the only matter which required consideration in resolving this aspect of the appeal. In determining what contribution, if any, the underlying condition had made to Mr Elcheikh's permanent impairment, the medical specialist had to consider all of the relevant evidence, including the competing expert's opinions, the material on which they rested, the history Mr Elcheikh had given and what his examination had all revealed.
106It follows that the Appeal Panel's adoption of the medical specialist's conclusions and reasons, without engaging with the parties' contest as to what s 323 required to be determined, or the evidence on which the challenged conclusions rested and without providing reasons for the conclusions it reached on that contest, involved fundamental error. The adoption of the medical specialist's conclusions and reasons did not accord with the obligation imposed on the Appeal Panel by s 328, to determine the appeal which Mr Elcheikh had brought against that decision.
107The first defendant's submission that 'ultimately, such apportionments are a matter of expert opinion, and involve a degree of clinical judgment' may well be accepted. Nevertheless, such judgments must be approached in the way provided by s 323 and must be resolved on the facts of the particular case. That the medical specialist had undertaken the assessment of the deduction in accordance with the requirements of s 323 and had necessary regard to the relevant facts was in issue on appeal.
108In the circumstances, the Appeal Panel was obliged to do more than record its conclusion that it agreed with the medical specialist for the reasons he had given. The Appeal Panel plainly erred in not attempting the exercise required of it by s 328.