Asbury v Donhad Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Asbury v Donhad Pty Ltd [2023] NSWPICMP 461
APPELLANT:	Alan John Ashbury
RESPONDENT:	Donhad Pty Ltd
APPEAL PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	20 September 2023
CATCHWORDS:	WORKERS COMPENSATION - The appellant suffered an accepted right knee injury in 2003; in 2014 the appellant underwent a total knee replacement and further arthroscopic surgery in 2019; in 2020 the Medical Assessor (MA) assessed that the impairment was not fully ascertainable; the claimant subsequently made a claim for permanent impairment based on an updated qualified opinion; the respondent’s qualified doctor also assessed permanent impairment; the appellant alleged that he suffered a further consequential condition in 2022 to the right shoulder; in 2023 the MA reconsidered the Medical Assessment Certificate (MAC) and determined that impairment was fully ascertainable; that determination was made in the absence of an examination and based on the recent qualified opinion; reasons of MA showed that he agreed with opinions of qualified doctors; otherwise no medical dispute and reasons sufficient; Vitaz v Westform (NSW) Pty Ltd applied; right shoulder condition not before MA as not part of medical dispute and liability dispute required determination by Member; Skates v Hills Industries Ltd and State of New South Wales v Bishop referred to; no requirement to conduct medical examination; examination unnecessary based on the medical evidence; Held – MAC confirmed. .

BACKGROUND

Mr Ashbury (the appellant) sustained an injury to the right lower extremity on
21 October 2003 and 22 December 2003 in the course of his employment with the respondent.
In a report dated 21 October 2019, Professor Ghabrial noted that the appellant had undergone recent arthroscopic procedure of the right knee which was settling. The doctor opined that the condition had not stabilised for the purposes of assessing permanent impairment.
In 2020 Mr Ashbury sought a determination of a medical dispute before the Personal Injury Commission (Commission), specifically whether the “degree of permanent impairment of the injured worker is fully ascertainable”. This is a medical dispute within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act).
The medical dispute was referred to and assessed by Medical Assessor Mastroianni who issued a Medical Assessment Certificate dated 10 February 2020 (the MAC). After noting that the appellant had undergone a total knee replacement in 2013 and a further arthroscopic surgery in 2019, the Medical Assessor stated:
“There has been some improvement post-operatively in that the knee no longer locks, however he has a painful and restricted knee and clinical evidence of an inflammatory process as there is increased temperature in the knee.”
The Medical Assessor noted that the appellant then required further investigations and treatment and expressed agreement with the opinion of Professor Ghabrial that the condition had not stabilised for the purposes of assessing permanent impairment.
The effect of that determination was that s 39 of the Workers Compensation Act 1987 (WC Act) did not apply due to the operation of cl 28C of Schedule 8 of the Workers Compensation Regulation 2016.
In a letter dated 28 February 2023 the respondent sought a reconsideration of the MAC. The appellant then opposed the application by the respondent to reconsider the MAC.
On 28 April 2023 the President’s delegate referred the MAC back to the Medical Assessor pursuant to s 329(1A) of the 1998 Act. The delegate relevantly stated:
“9. The applicant has submitted that he has since ‘sustained a consequential injury to his right shoulder on or around 14 June 2022’. However, any alleged consequential injuries (notably a right shoulder injury) now being claimed by the applicant, did not form part of the issues in dispute in this application as confirmed in the Further Amended Medical Referral discussed above.
10. Thus, any consequential injuries being considered or raised by the appellant in his submissions at this time, do not form part of the issues in dispute in this application and are not to be determined in this application.
…
13. The reconsideration is limited to the question of whether the degree of permanent impairment to the right knee is fully ascertainable.”
The Medical Assessor issued a further medical assessment certificate dated 8 May 2023 (the further MAC). The Medical Assessor relevantly stated:
“I note the report of Dr Ghabrial dated 23 September 2020. Dr Ghabrial’s report indicates no evidence of inflammation in the knee.
I note the report of Dr Richard Powell dated 8 February 2022. He opines that based on his examination it is reasonable to conclude that Mr Ashbury has reached the state of maximum medical improvement.
After reviewing the above reports I conclude that the claimant has reached MMI and the condition is unlikely to change substantially with or without further treatment in the next 12 months.
The degree of permanent impairment for the injured worker is fully ascertainable in accordance with section 319(g) of the 1999 Act.”
The assessment of permanent impairment is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[1] The fourth edition guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[2]
[1] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[2] Clause 1.1 of the fourth edition guidelines.

APPLICATION TO APPEAL MEDICAL ASSESSMENT

Mr Ashbury lodged an Application to Appeal Against the further MAC on the grounds that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and the further MAC contains a demonstrable error (s 327(3)(d)).
The respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
The delegate of the President was satisfied that one ground of appeal had been made out. The delegate stated:
“Upon examination of the MAC and on the face of the application and submissions made, there is only one ground of appeal as argued by the appellant that is capable of being made out. I am satisfied it is arguable the Medical Assessor erred by failing to provide reasons for his determination that the appellant has reached maximum medical improvement.”

SUBMISSIONS

Appellant’s submissions dated 21 March 2023

These submissions were filed opposing the insurer’s application to reconsider the MAC.
The appellant then noted that he had sustained a further consequential condition to the right shoulder on or around 14 June 2022. That claim had been denied by the insurer.
Within that submission the appellant objected to the reconsideration application proceeding because:
“[T]he original referral to the Personal Injury Commission would be inadequate, as there have been more recent consequential injuries sustained by the Applicant (which are not the subject of the referral to the then Approved Medical Specialist, now Medical Assessor).”

Appellant’s submissions on the appeal

The appellant’s ground of appeal was:
“The appellant appeals against the Medical Assessment Certificate on the basis that the AMS fell into error in his assessment by failing to conduct a medical examination and failing to take into account relevant factors, including a consequential injury to the right shoulder (right upper extremity) sustained on 14 June 2022 and also other injuries to the left knee (left lower extremity) or lumbar spine.”
The appellant noted that the Medical Assessor had proceeded without an examination and submitted that there were “simply no reasons provided why the appellant has reached MMI”.
As part of the “reasons ground”, the appellant submitted:
“The assessor has not indicated whether or not he accepts any other medical opinions. Other medical opinions are noted but it is still unclear on what basis he has made his own determination.”
The appellant noted that it was “incorrect” for the Medical Assessor to rely on an opinion of another medical examination that had occurred over 12 months previously. The appellant submitted:
“In the MAC there is no consideration or discussion regarding the issues raised in those documents, and it is apparent that the issues, including the full extent of the injury which includes other body parts, and the stabilisation of the right knee, have not been considered. This is a demonstrable error.”

Respondent’s submissions on the appeal

The respondent submitted that the medical dispute was limited to whether the assessment of the right knee was fully ascertainable.
It referred to the reasoning of the Medical Assessor who reviewed the reports of Dr Powell and Professor Ghabrial and concluded that the “claimant has reached MMI and the condition is unlikely to change substantially with or without further treatment in the next 12 months”. It was submitted that the finding made by the Medical Assessor accorded with the opinion expressed by the appellant’s qualified doctor.
The respondent noted that the Medical Assessor was able to determine the matter in the absence of an examination as it was consistent with the available medical evidence and there was no recent medical opinion that the condition had not stabilised.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original and subsequent medical assessment. In our reasons below we have summarised the relevant medical evidence noting the absence of full submissions from the parties which were extremely limited on the extent of the medical evidence relevant to any determination of whether the assessment of permanent impairment as fully ascertainable.

REASONS

We are required to only address the subject matter of the grounds of appeal. In Queanbeyan Racing Club Ltd v Burton[3] Basten JA stated:[4]
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”
[3] [2021] NSWCA 304 (Burton).
[4] At [35], Leeming and McCallum JJA agreeing.
Clause 1.15 of the Guidelines is headed “Maximum medical improvement” and provides:
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”
Section 319 of the WIM Act defines a “medical dispute” and includes whether “the degree of permanent impairment of the injured worker is fully ascertainable”.
The words “fully ascertainable” appear in Schedule 8, cl 28C of the Workers Compensation Regulations 2016 and provide an exception to the operation of s 39 of the WC Act where:
“(a) an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable.”
The issue of whether an assessment of permanent impairment is “pending” was not raised in this matter. We also note that the appellant indicated that he had withdrawn his s 66 claim as he was adding the right shoulder as an assessable body part.
The wording of cl 28C suggests that the degree of permanent impairment is not fully ascertainable because maximum medical improvement had not been reached. However, none of this was the subject of relevant submission. That interpretation appeared to be the conclusion reached by the Medical Assessor when he indicated that “the claimant has reached MMI and the condition is unlikely to change substantially with or without further treatment in the next 12 months”, that is the Medical Assessor addressed whether the impairment was “fully ascertainable” by applying the test that he attained “maximum medical improvement”.
The appellant’s submissions do not identify discrete grounds of appeal. Whilst the appellant relies on both the application of incorrect criteria and the medical assessment contains a demonstrable error, there has been no attempt to correlate the submissions with either of these grounds.
The meaning of incorrect criteria was discussed in Campbelltown City Council v Vegan[5] and by Basten JA in the Court of Appeal.[6] There was no submission as to what Guidelines were incorrectly applied by the Medical Assessor.
[5] [2004] NSWSC 1129 at [58].
[6] Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan) at [95]. The observations of Basten JA in Vegan were approved by the Court of Appeal in Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 at [41].
The concept of “demonstrable error” was discussed by the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd[7] where Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales[8] a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[9]
[7] [2018] NSWCA 324 (Vannini) at [90].
[8] [2008] NSWCA 101.
[9] Vannini at [86].
The Medical Assessor initially determined in the MAC that the assessment of the right knee was not fully ascertainable. That opinion was based in part on the opinion expressed by Professor Ghabrial in his report dated 21 October 2019.
Professor Ghabrial provided a further report dated 23 September 2020 following an updated examination. At that time the doctor assessed permanent impairment of the right knee based on a “fair result” in accordance with Table 17-35 of AMA 5.
In a report dated 8 February 2022, Dr Richard Powell, orthopaedic surgeon, opined that the left knee was not consequential to the accepted right knee injury and that the appellant had recovered from the effects of any injury to the lumbar spine.
Dr Powell, like Professor Ghabrial, assessed the right knee condition in accordance with Table 17-35 of AMA 5 and concluded that the appellant had attained a “fair result”.
We reject the appellant’s submissions that there were “simply no reasons provided why the appellant has reached MMI”. The brief reasons of the Medical Assessor, set out at paragraph 9 herein, show that he considered the recent reports of Dr Powell and Professor Ghabrial. The Medical Assessor relevantly stated:
“After reviewing the above reports I conclude that the claimant has reached MMI and the condition is unlikely to change substantially with or without further treatment in the next 12 months.”
The words “after reviewing the above reports I conclude” clearly indicate that the Medical Assessor has adopted the opinions of Professor Ghabrial and Dr Powell, which concluded that maximum medical improvement had been attained as they both assessed permanent impairment. We reject the appellant’s submission that the Medical Assessor “has not indicated whether or not he accepts any other medical opinions”.
In our view it is clear from a reading of the brief reasons that the Medical Assessor has accepted the common medical opinion. The reasons of the Court of Appeal in Vitaz v Westform (NSW) Pty Ltd[10], albeit in the context of a s 323 deduction, suggested reasons were not required in those circumstances. Basten JA stated:[11]
“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.”
[10] [2011] NSWCA 254 (Vitaz).
[11] Vitaz at [43], McColl JA (as her Honour then was) and Handley AJA agreeing.
We accept that a failure to provide any, or any adequate, reasons may constitute a demonstrable error. However, the appeal as argued was that the Medical Assessor provided no reasons. That submission and ground is rejected.
The appellant submitted that the Medical Assessor relied on an opinion which was more than 12 months old. That submission implicitly suggests a reason for the Medical Assessor’s decision.
It was open to the Medical Assessor to base his decision on Dr Powell’s report, particularly in circumstances where the appellant had served evidence from a report in 2020, that he had attained maximum medical improvement and assessed permanent impairment.
The appellant also submitted that the Medical Assessor failed to refer to opinions in “those documents” that stabilisation of the right knee had not occurred. This submission did not specify what “those documents” were that the Medical Assessor failed to consider. Whilst there may be a demonstrable error in failing to refer to critical evidence,[12] the appellant failed to articulate the critical evidence.
[12] See Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [388] citing Mifsud v Campbell (1991) 21 NSWLR 725 at 728.
We have read the documentation which was before the Medical Assessor. We consider that the Medical Assessor referred to the relevant evidence, that is the two experts recently qualified by the parties. Both qualified experts found that the appellant had attained maximum medical improvement, and both had assessed permanent impairment. We could not identify any other critical evidence in the absence of specificity by the appellant in his submissions.
We have addressed and rejected the appellant’s submission that the Medical Assessor provided no reasons.
The appellant also submitted, in the absence of any medical evidence, that impairment is not fully ascertainable because he had recently sustained a consequential condition to the right shoulder. The appellant’s submissions on the reconsideration application noted that liability for that condition was disputed.
We reject that submission for the following separate reasons.
First, that dispute was not originally before the Medical Assessor. The medical dispute, based in part of the 2019 report provided by Professor Ghabrial, was that the assessment of the right knee condition was not fully ascertainable. At that time any alleged right shoulder condition had not arisen and self-evidently, formed no part of the medical dispute initially referred for assessment by the Medical Assessor. The approach by the Medical Assessor, and the comments of the President’s delegate in the application to reconsider the MAC, are consistent with the observations of the Court of Appeal in Skates v Hills Industries Ltd,[13] that is, the exchange of correspondence and medical evidence relevant to the claim, identified the scope of the medical dispute.
[13] [2021] NSWCA 142 at [27]-[30] and [45]-[48].
Secondly, the insurer has denied liability in respect of the allegation that the right shoulder condition resulted from the right knee injury. Accordingly, the determination of that liability issue was a matter for a Member before it could be referred to a Medical Assessor: State of New South Wales v Bishop.[14] That decision is consistent with subsequent authority such as Jaffarie v Quality Castings Pty Ltd. White J then endorsed the proposition that the jurisdiction of the Commission, as opposed to a Medical Assessor, is to determine “the nature of the injury sustained”.[16]
[14] [2014] NSWCA 354 (Basten JA at [20]), (Emmett JA at [84]-[85], Gleeson JA agreeing at [93]).
[16] Jaffarie at [80], Macfarlan and Leeming JJA agreeing on this point.

The right shoulder condition was not part of any medical dispute until any outstanding liability issue was determined.
For these separate reasons we reject the appellant’s submission that the degree of permanent impairment of the right shoulder is fully ascertainable was ever part of the medical dispute, the subject of a reconsideration application and/or before this Panel as part of the Appeal. No error is established on the part of the Medical Assessor.
The appellant further submitted that the Medical Assessor erred in failing to undertake a medical examination. No relevant submission was made as to how this was a demonstrable error or an application of incorrect criteria. We also note that this was not an assessment of permanent impairment.
The Medical Assessor initially determined that the assessment of the right knee was not fully ascertainable. That opinion was based in part on the opinion expressed by Professor Ghabrial in his report dated 21 October 2019.
We have earlier referred to the agreed positions of Professor Ghabrial in 2020 and Dr Powell in 2022 that maximum medical improvement had been attained. The appellant has otherwise not referred to any recent material that the right knee condition is “not fully ascertainable”.
There is otherwise no sound medical reason why, many years after a knee replacement and four years since arthroscopic surgery, the right knee condition could not be assessed for permanent impairment. That the appellant had symptoms was irrelevant as it is assumed, based on the points system for assessing knee replacements, that there would be various restrictions. Indeed, both qualified opinions assessed the right knee replacement as providing a fair result indicating various restrictions in ongoing use.
There is otherwise no reason why the left knee and lumbar spine impairment could not be assessed. No one has suggested otherwise, and the basis of the appellant’s submission is unclear. The submission is otherwise contradicted by the parties’ respective qualified opinions.
The Approved Medical Specialist did not undertake a medical examination and determined the matters on the papers. The appellant did not refer to any guideline requiring that a medical assessment was required for determining whether the impairment was “fully ascertainable”.
We agree with the Medical Assessor’s decision to determine the matter on the papers as an examination was unnecessary. Indeed, based on the medical evidence provided by the parties the only answer to the question posed for the Medical Assessor was that the degree of permanent impairment of the appellant is fully ascertainable.
We accept that the medical assessment certificate does not contain demonstrable error and the assessment was not made based on incorrect criteria.

CONCLUSION

The appeal is rejected, and the further MAC is confirmed.

[15] [2018] NSWCA 88 (Jaffarie).

[2023] NSWPICMP 461

20 September 2023