Black Horse Espresso Pty Ltd v Hanna
[2022] NSWPICMP 273
•11 July 2022
| DETERMINATION OF APPEAL PANEL | ||
| CITATION: | Black Horse Espresso Pty Ltd v Hanna [2022] NSWPICMP 273 | |
| APPELLANT: | Black Horse Espresso Pty Ltd | |
| RESPONDENT: | Raad Hanna | |
| APPEAL PANEL: | Member Brett Batchelor Medical Assessor Tommasino Mastroianni Medical Assessor James Bodel | |
| DATE OF DECISION: | 11 July 2022 | |
| CATCHWORDS: |
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STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 March 2022 Black Horse Espresso Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 1 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 assessment was made on the basis of incorrect criteria,
· 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 (the 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent worker (the respondent/Mr Hanna) sustained injury to his cervical spine and lumbar spine on 12 July 2018 arising in the course of his employment as a barista with the appellant. On that day he was assaulted by a person unknown to him outside the coffee shop where he was employed. Immediately following the assault, Mr Hanna had pain and discomfort in his neck and back as well as both arms and both legs.
The respondent consulted his general practitioner, Dr Newman, on 18 July 2018 and was referred for X-rays of his cervical spine. On 29 July 2018 Dr Newman organised X-rays of the thoracolumbar spine and commenced Mr Hanna on analgesic medication. Later he was referred for physiotherapy. On 1 September 2018 the respondent underwent an MRI scan of his cervical spine. He was referred to Dr Medhat Guirgis, orthopaedic surgeon for examination and review of the investigations. Dr Guirgis did not recommend surgery, and advised continuation of conservative treatment by way of further physiotherapy and medication. Mr Hanna last saw Dr Guirgis at the end pf 2020.
During the Covid pandemic Mr Hanna’s ongoing treatment was occasional visits to his general practitioner. He continues to attend on a general practitioner once or twice a month. Apart from taking analgesics, the respondent is not undergoing any other form of treatment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
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 not the respondent requested such further medical examination, and the Panel considers that there is sufficient evidence in the Appeal Papers on which to base its decision.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Panel. The heading of the appellant’s submissions dated 29 March 2022 incorrectly lists the worker, Raad Hanna, as appellant and the employer, Black Horse Espresso Pty Limited, as respondent[1]. The reference to “WCNI” is to the Workers Compensation Nominal Insurer (iCare), the “Insurer/Scheme Agent” in respect of the appellant employer[2]. In summary, the submissions of the parties are as follows.
[1] Appeal Papers p 9.
[2] Appeal Papers p 7.
Appellant
The appellant submits that the MA:
(a) erred in applying a one tenth deduction pursuant to s 323 of the 1998 Act to his assessment of whole person impairment (WPI);
(b) erred in failing to provide reasons as to why he considered it costly or difficult to determine the deduction and failing to address whether a one tenth deduction was at odds with the evidence,
and submits that
(c) it would not have been costly or difficult to determine the appropriate s 323 deduction, and that a one tenth deduction is as odds with the available evidence.
The appellant refers to the provisions of s 323(1) and (2) of the 1998 Act, the Guidelines and the following case law:
(a) Campbelltown City Council v Vegan[3];
(b) PDF Food Services v McLennan[4];
(c) State of NSW (HealthShare NSW) v Martine[5]
(d) Ryder v Sundance Bakehouse[6], and
(e) Naylor v A Noble & Son Limited[7].
[3] [2006] NSWCA 284 (Vegan).
[4] [2018] NSWWCCMA 80.
[5] [2019] NSWWCCMA 199.
[6] [2015] NSWSC 526 (Ryder).
[7] [2019] NSWWCCMA 144.
The appellant submits that there was clear evidence of significant pre-existing pathology in the lumbar spine and cervical spine, which was not related to the work injury, and that it had a significant outcome on the outcome of the respondent’s work related injury, including ongoing symptoms and associated incapacity, which is evidence of a direct impact on the respondent’s permanent impairment.
The appellant notes that the respondent sustained a prior injury on 29 September 2003 and was assessed by Approved Medical Specialist (AMS), Dr John Beer, who issued a MAC containing an assessment of Mr Hanna having sustained 6% WPI as a result of injury to the lumbar spine on 29 September 2003[8]. Dr Beer noted that the respondent had some pre-existing changes in the lumbar spine, and sustained an aggravation and a degree of angulation tearing of L4/5 and L5/S1 levels.
[8] Appeal Papers p 243.
The appellant refers to a number of radiological scans performed between 2003 and 2016 which were available to the MA in the current proceedings. These will be referred to hereunder where relevant.
The appellant refers to entries in the clinical records of Better Health Pty Ltd, which reveal ongoing complaints of pain from 2016 until the date of the work injury that is the subject of the current proceedings. These are listed and will be referred to hereunder where relevant.
The appellant refers to treatment of the respondent by Dr John Ireland, orthopaedic surgeon, and his reports of that treatment over the period from 13 November 2002 to 18 May 2006. The appellant also refers to treatment of the respondent by Dr Daryl Salmon, consultant in pain medicine, and his report on such treatment dated 2 November 2004.
The appellant finally refers to the treatment of the respondent by Dr Guirgis and his report thereon dated 3 June 2006. Dr Guirgis assessed the respondent as having sustained 6% [sic, 5% after deduction for pre-existing condition] WPI in respect of the lumbar spine as a result of the work injury in September 2003, noting continued complaints of pain and stiffness in the lower back since that injury and acute episodes of pain that would force Mr Hanna to stay in bed due to an inability to move around.
The appellant submits that, for the reasons outlined, the MAC contains a demonstrable error and/or the assessment was made on the basis of incorrect criteria. It submits that the MAC should be revoked and a new MAC issued with an appropriately calculated assessment of WPI including an appropriate deduction pursuant to s 323 of the 1998 Act. The appellant does not specify what that deduction should be.
Respondent
In reply, the respondent notes that the appellant’s appeal is limited to an error alleged in respect of the deduction to be made from the assessment of WPI pursuant to s 323 of the 1998 Act, and refers to relevant parts of the MAC of the MA, Dr Burns.
The respondent submits that there is no error disclosed in the assessment of the MA, as he believes that the recent workplace injury aggravated the pre-existing problems at the neck and back, and that Dr Burns gave adequate reasons for the deduction he made of one-tenth from his assessment of WPI.
The respondent notes that prior to the subject injury he was working as a barista doing general customer service at the café for 15 to 20 hours a week. There is no evidence that Mr Hanna was having difficulty performing the physical requirements of his role before he was injured. The MA records that, after he was injured, he performed light duties at the café, doing mostly office work up until the café closed in 2019, and that he has not worked since that time.
The respondent submits that a mere difference of opinion as to the extent of the s 323 deduction will not normally constitute a demonstrable error, citing Jewish Care NSW v Polura[9].
[9] (2021) NSWPIC MP 49 at [85].
The respondent submits that the onus of proof in establishing the extent of the s 323 deduction lies upon the appellant employer[10].
[10] Asbestos Remover & Demolition Contractors Pty Ltd v Kruse (2017) NSWCCMA 51.
The respondent submits that the MA explained his reasoning process and provided a proper basis for applying the statutory deduction.
The respondent notes that Dr Panjratan, who independently examined him on behalf of the appellant on 13 January 2021 and provided a report dated 29 January 2021[11], found zero percent WPI in respect of injury to the cervical spine and lumbar spine. However, a difference of medical opinion does not constitute a demonstrable error.
[11] Appeal Papers p 159.
The respondent notes that the deduction made by the MA is the same as that made by Dr Denise Tong, who independently medically examined him on 26 October 2020 and provided a report of that date[12].
[12] Appeal Papers p 139.
The respondent submits that, when the MAC is read as a whole, it is evident that the MA did in fact provide detailed and considered reasons for his decision to make a one-tenth deduction from his assessment of WPI as a result of injury to the cervical spine and lumbar spine. The respondent submits that the appellant merely lists the respondent’s complaints of the pre-existing problems and then submits that a one-tenth deduction was inadequate.
The respondent notes that the MA had all of the material before him and refers to that material. He properly engaged with the medical evidence in reaching his conclusion, and undertook the correct steps in an assessment of the s 323 deduction.
The respondent submits that the appellant has not demonstrated any error or application of incorrect criteria, and that the appeal should be dismissed, and the MAC of Dr Burns dated 1 March 2022 confirmed.
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. 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[13] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[14]).
[13] [2008] NSWCA 116.
[14] [2013] NSWCA 1792.
In Vegan 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.
It is convenient to firstly deal with the issue raised by the appellant of the alleged failure of the MA to provide reasons why he considered it costly or difficult to determine the s 323 deduction, and failing to address whether a one tenth deduction was at odds with the evidence. The appellant submits that it would not have been costly or difficult to determine the appropriate s 323 deduction, and that a one tenth deduction is at odds with the evidence.
The MA says at [11.c.] of the MAC that:
“The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth for each of the cervical and lumbar spine.”
(emphasis in original)
The Panel is of the opinion that, while the MA has not provided reasons why he considered it costly or difficult to determine the s 323 deduction, it was not necessary for him to do so. As submitted by the appellant, there is sufficient evidence to determine the deductible proportion. This evidence is summarised by the appellant in its submissions and referred to in the MAC. The only error on the part of the MA in this regard, if it can be classed as such, is the inclusion in the MAC of cl [11.c.] in the form as it now appears. There was no need for such a statement. The issue of whether a one-tenth deduction is the appropriate deduction to be made from the degree of impairment assessed by the MA will now be considered.
At [20] of the appellant’s submissions reference is made to the following radiological evidence:
(a) a radiology report dated 20 October 2003 records minor scoliosis of the upper thoracic spine and trivial anterior lipping at L3/4[15];
(b) a soft tissue ultrasound report dated 18 May 2004 recorded that the worker’s L5 vertebral body showed a small congenital posterior neural arch fusion defect[16];
(c) a report of a cervical spine CT scan in October 2016 recorded disc-osteophyte complex at C5/6 with moderate central canal stenosis[17], and
(d) an X-ray of the thoracic and lumbosacral spine dated 31 July 2018[18].
[15] Appeal Papers p 216.
[16] Appeal Papers p 223.
[17] The full report of which is not in the Appeal Papers but is referred to in the clinical note of Dr Dat Hua Nguyen dated 1 March 2017, see Appeal Papers p 115.
[18] The full report of which is not in the Appeal Papers but referred to in the reports of Dr Denise Tong dated 26 October 20201 and Dr Vijay Panjratan, see Appeal Papers pp 141 and 164.
The results of the X-ray of the thoracic and lumbosacral spines dated 31 July 2018 as recorded in Dr Panjratan’s reports are as follows:
“There is early spondylitic change at the lower thoracic spine and mild calcification in relation to the anterior disc annulus , which is most likely degenerative in nature .”
“There is moderate disc space narrowing with early disc degeneration at L4/S associated with subchondral sclerosis of the endplates and early spondylitic changes. There is mild disc space narrowing with early disc degeneration at L 1/2 with subchondral sclerosis at the endplates with early spondylitic change .”
The appellant points out that the X-ray of the thoracic and lumbosacral spine dated 31 July 2018 was carried out 19 days after the subject work injury, and submits that this clearly demonstrates significant pathology that pre-dates the respondent’s injury of 12 July 2018 which is the subject of the current proceedings.
The appellant refers at [21] of its submissions to entries in the clinical notes of Better Health Pty Ltd covering the period from 30 June 2016 to 5 March 2018[19]. The clinical note of Dr Perez dated 30 June 2016 records that the worker reported two weeks of lower back pain after he fell onto his lower back after falling in the shower, and the doctor reported that the worker’s back was tense and he had pain on palpation. Thereafter there is reference to 15 entries in the clinical notes spanning the period from 30 June 2016 to 5 March 2018, plus two other entries referring to generally “Throughout 2017” and “April; 2017”. These entries record complaints of pain in the lower back, chronic back pain, ranges of lumbar flexion and extension, “chronic pain” (without specification), neck pain, the result of the CT scan carried out in October 2016 (referred to at [39 (c)] above), a CT scan of the cervical spine dated 12 May 2017, and on 19 June 2017 a telephone call from Dr Doan to Dr Maniam’s rooms recording that his (Dr Maniam’s) impression of the worker was of a “multifactorial pain syndrome.” The last entry in the clinical notes to which the respondent refers is dated 5 March 2018 recording that the worker is”…reporting chronic pain issues all over his body.”
[19] Appeal Papers pp 103 – 127.
At [22] of its submissions the appellant refers to the treating reports of Dr Ireland covering the period from 13 November 2003 to 18 May 2006[20]. In the first report dated 13 November 2013 addressed to Allianz, Dr Ireland who treated Mr Hanna for injuries sustained in a work accident in 2003 when struck by a fully laden trolley, noted:
“He complains also of knee pain and back pain and as you are aware, recent x-rays whilst an inpatient, reveal no significant abnormality in these areas.
I have no doubt he has had some soft tissue injury to the back and the knees and I have suggested that once the cast is removed in two week’s time, to not only carry out therapy to the left ankle but also to the knees and the back
When Dr Ireland last reviewed Mr Hanna on 18 May 2006 he said:
“I understand that he has recently returned to work in the restaurant and he lasted about four weeks. He noticed over that time that he was unable to stand for more than an hour with pain in his ankle, back and over that period of time developed some pain in his wrists from carrying and washing dishes.
Apart from swimming, he is undertaking no other therapy at this point in time.
I do not believe there is anything further I can offer this gentleman. His condition remains unchanged at best. It appears that he is developing aches and pains in most other parts of his body.
He is not fit for any heavy manual work and light manual and sedentary tasks would probably require retraining.”
[20] Appeal Papers pp 217 – 234.
Dr Salmon in his report dated 2 November 2004 to which the appellant refers[21] principally concentrates his examination on Mr Hanna’s left ankle, heel, knee and thigh, noting that he suffered fractures of the fibula and medial malleolus in the work accident in September 2003. He found tenderness over the mid lumbar spine, medical joint line of the left knee, and also the left antero-medical aspect of the ankle.
[21] Appeal papers p 226.
The report of Dr Guirgis dated 3 June 2006[22] and his assessment of 6% (5% after deduction for pre-existing condition) WPI as a result of injury to the lumbar spine in the accident at work on 29 September 2003 is referred to above at [21].
[22] Appeal Papers p 241.
The appeal in this matter is limited to an error alleged in respect of the deduction to be made from the assessment of WPI pursuant to s 323 of the 1998 Act. In Cole v Wenaline Pty Limited[23] Schmidt J at [29] said the following in respect of the deduction that must be made pursuant to s 323 of the 1998 Act:
“The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.”,
and at [30]:
“Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”
[23] [2010] NSWSC 78 (Cole).
In Vitaz v Westform (NSW) Pty Ltd[24] Basten JA, after citing earlier authority in respect of the interpretation of s 68A of the Workers Compensation Act 1987 (the predecessor to s 323), including reference with approval to the approach adopted by Schmidt J to the issue in Cole, said at [43]:
“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.”
[24] [2011] NSWCA 254 (Vitaz).
The appellant in this case refers to Ryder. Campbell J in that case at [39] refers to this “…continued application of this interpretation to s 323…” as confirmed by Basten JA in Vitaz.
The MA in this case had before him all of the material referred to by the appellant in its submissions. There was “…medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment…”, and Dr Burns summarised this evidence at [4] of the MAC under “Details of any previous or subsequent accidents, injuries or conditions”. He refers to the previous injury occurring in 2003, noting:
“He reported a previous injury occurring in 2003 when a large fully laden trolley had struck him from behind at work. He sustained a fractured leg as well as injuries to both knees, both legs and both arms. He also sustained an injury to his lumbar spine. He had a significant amount of physiotherapy and other treatment as well as surgery for his fractured leg. Since 2003 he has continued to have ongoing pain and discomfort in his low back as well as his legs and arms.
With respect to his cervical spine I noted that he has had chronic neck pain present for a number of years recorded by Dr Newman, his previous General Practitioner. He had significant reports of pain and discomfort as chronic neck pain in 2016 and 2017. CT scans of his cervical spine were carried out in both years. He was also referred to physiotherapy.
He also had ongoing low back pain. In 2016 he had physiotherapy and a CT scan of the lumbar spine. He continued to report chronic low back pain throughout 2017. He admitted today that he has had significant episodes of pain and discomfort in both his neck and low back over the years but believed that the current accident had aggravated both of these areas and the pain had increased.”
Thereafter the MA refers to the respondent’s general health and work history including previous relevant work history. He noted “He commenced work in 2003 as a cleaner but unfortunately sustained significant injuries in a work accident and was unable to work for a number of years.” Thereafter self-employment in a coffee and sweets shop between 2008 and 2015/2016 is referred to followed by commencement of employment with the appellant employer as a barista in 2017. On the evidence noted by Dr Burns, the respondent was working three or four hours a day until his injury and was off work for a relatively short period, returning on suitable duties two hours a day, and continuing until closure of the café. Mr Hanna has not worked since. It is apparent from this summary that the respondent was able to work up to 20 hours a week for the appellant prior to the assault on him on 12 July 2018.
At [5] of the MAC the MA records his findings on physical examination and at [7] provides his summary of injuries and diagnoses as follows:
“Mr Hanna aggravated pre-existing degenerative change in both his cervical spine and lumbar spine. He has chronic cervical spondylosis and lumbar spondylosis.”
Consistency of presentation is recorded as:
“Mr Hanna was extremely pain fixated throughout the entire consultation.”
The MA at [9] and [10] of the MAC sets out the facts on which he has based his assessment of WPI and his assessment of 11% WPI as follows:
(a) the history he obtained from Mr Hanna;
(b) his physical examination of Mr Hanna, and
(c) his review of the documentation.
At [10] the MA, after detailing the way in which he assesses WPI in respect of injury to the cervical spine at 7% WPI, makes the following comments:
“I do note though that he has a history of chronic neck pain according to his General Practice notes and also has had multiple investigations of the neck before the current injury. Additionally his x-ray done immediately after the injury did show degenerative change. His MRI scan also reported showing degenerative change. I therefore believe that he does have pre-existing impairment in the cervical spine, which has directly contributed towards his current level of whole person impairment. I believe a one tenth deduction would be appropriate. He would thus have 6.3% whole person impairment, which would be rounded down to 6%.
With respect to his lumbar spine I note that he also has dysmetria in the lumbar spine in flexion and extension. There is no evidence though of muscle spasm, muscle guarding or non-verifiable radicular complaint. His sensory changes in both legs did not follow a nerve root pattern. There was also no evidence of radiculopathy. From Table 15-3 of the 5th Edition of the AMA Guides his lumbar spine would be rated as DRE Category 11 or 5% whole person impairment. I note that he had an injury to his lumbar spine in 2003 and has had episodes of chronic back pain ever since. I believe that his back pain is currently due to his lumbar spondylosis, which was aggravated in the recent injury. Therefore another one tenth deduction would be appropriate. This would give 4.5% whole person impairment, which would be rounded up to 5% whole person impairment.”
The Panel is of the view that the MA, in making his assessment of the s 323 deduction from his assessments of WPI in respect of injury to the cervical spine and lumbar spine, was well aware of the details of the sequalae of the 2003 work injury suffered by the respondent. He had regard to the contents of the radiological investigations, clinical notes, reports from treating doctors, and of the previous MAC of Dr Beer dated 20 February 2007 containing an assessment of 6% WPI as a result of injury dated 29 September 2003. This was the material in which he based his deduction of a one-tenth deduction from his assessments of WPI as a result of injury to the cervical spine and lumbar spine referred to in [53] above.
The MAC must be read as a whole. Notwithstanding the inclusion of, and/or wording of [11.(c).] of the MAC referred to at [37]-[38] above, the MA has provided sufficient reasons for the s 323 deductions he made. It was therefore not necessary for him to provide a reason as to why such deduction was difficult or costly to determine.
The Panel finds that there was no error on the part of the MA in determining the deduction of one-tenth from his assessments of WPI as a result of injury to the cervical spine and lumbar spine on 12 July 2018. It was not at odds with the available evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 March 2018 should be confirmed.
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