Blacktown City Council v Hanna
[2023] NSWPICMP 523
•19 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blacktown City Council v Hanna [2023] NSWPICMP 523 |
| APPELLANT: | Blacktown City Council |
| RESPONDENT: | Mariam Hanna |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 19 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in failing to apply a deduction pursuant to section 323; although the MA’s path of reasoning was difficult to follow, there was no compelling evidence that a deduction was warranted; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 August 2023 Blacktown City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
6 July 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the evidence supported a deduction pursuant to
s 323 of the 1998 Act.In reply, the respondent submits that no errors were made.
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 was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the left lower extremity (knee), the right lower extremity (knee) and scarring (TEMSKI) resulting from an injury on 22 May 2015.
The Medical Assessor obtained a detailed history of the injuries and various procedures undergone by Ms Hanna.
The Medical Assessor then set out details of her present treatment and symptoms.
When asked to provide details of any previous or subsequent accidents, injuries or conditions, the Medical Assessor said: “There was no other prior or subsequent injuries.”
The Medical Assessor then set details of Ms Hanna’s general health, work history and the impact of her injuries on her social activities and activities of daily living (ADL’s).
The Medical Assessor then documented his findings on physical examination.
He then turned to consider the various radiological and other material he had before him and said:
“10 February 2021 - ultrasound right knee - small knee joint effusion in the supra patellar bursa, heterogeneous appearance of the medial and lateral menisci suggestive of underlying degeneration or tear, ganglion cyst arising from the lateral aspect of the knee joint. Further evaluation with MRI of right knee is suggested. 49 x 28 x 12mm (9Ccc in volume) Baker's cyst within the popliteal fossa.
11 June 2021- X-ray right knee - No fracture or aggressive bone lesion is demonstrated, mild to moderate degenerative osteoarthritic changes in the medial compartment of tibiofemoral joint, No evidence of erosive arthropathy. No loose body. No significant joint effusion and normal bony alignment.
5 July 2021- MRI right knee - Mild to moderate OA changes in the medial femorotibial and lateral patellofemoral compartments associated with osteophytic lipping. There is a longitudinal cleavage tear of the body and posterior horn of the medial meniscus sparing the posterior root attachment, associated with Grade 1 sprain of the deep medial collateral ligament. The lateral meniscus is intact, and the cruciate ligaments are normal. There is a small uncomplicated Baker's cyst. There is tendinosis of the popliteus tendon with a loculated ganglion at the hiatus.
21 April 2022 - MRI right knee - no report.”
The Medical Assessor then summarised the injuries in a manner incomprehensible to the Panel, but we set it out as follows:
“Mariam Hanna is a x-year-old man who had an accident at work sustaining a soft tissue injury to his xinj. He continues to have impairments from his injuries affecting many aspects of his daily activities and his capacity to work.”
He added: “Ms Hanna had injury to xinj while at work. I have assessed the whole person impairment at X%.”
The Medical Assessor in fact assessed total WPI at 23%, being 20% in respect of the left lower extremity, 2% for the right lower extremity and 1% for scarring.
He did not make any deduction under s 323 of the 1998 Act.
Again, somewhat incomprehensibly again, he said:
“In my opinion the deductible proportion is X for the following reasons: There is no deductible proportion.”
With all due respect to the Medical Assessor, his MAC was poorly drafted, and made it difficult for the parties to determine his path of reasoning.
Nevertheless, our task is to determine, on the evidence, whether he erred in failing to make a s 323 deduction as submitted by the appellant.
The appellant’s submissions may be summarised as follows:
(a) the evidence before the Medical Assessor demonstrated the presence of a pre-existing degenerative condition;
(b) Dr Oates considered that the worker’s pre-existing degenerative osteoarthritis had an affect on the WPI of the knees;
(c) a Medical Assessor is required to set out his or her reasons for the assessment made and set out the facts upon which the assessment is based;
(d) the Medical Assessor has failed to apply the specific test required by s 323 and the various authorities dealing with this issue;
(e) the Medical Assessor has not explained his exact path of reasoning for why he considered that no deduction was warranted, and
(f) the Medical Assessor failed to consider relevant and significant material provided to him.
The respondent submits that:
“1. It is to be presumed that the appellant’s position is that the statutory 10% deduction applies for the reason that its own medical assessor, Dr Coolican, applied the statutory 10% deduction.
2. The respondent concedes that the medical assessor does not appear to have provided any detailed reasoning in relation to his determination that no deduction should be applied.
3. In Cole v Wenaline Pty Ltd [2010] NSWSC 78, the application of the deductible proportion must be made by reference to the evidence. It is submitted in this matter there is a lack of evidence in relation to the existence of any pre-existing condition.
4. The appellant, in its submissions, whilst identifying what appears to be a failure in relation to the provision of reasons provided by the medical assessor, does not identify the evidence that would justify the application of any deduction. Unfortunately, the radiological evidence from the time of the subject injury on
22 May 2015 was not available. The sole reference that can be identified that may have relevance in relation to this question appears to be the reference in the historical report of Dr Coffey dated 29 September 2015, who refers to an MRI scan showing ‘some minor degenerative changes’. It is submitted that the aforementioned comment of Dr Coffey is insufficient to provide the foundation for a determination that there was a pre-existing condition, other than what appears to be very minor changes. It is submitted this could be entirely consistent with a condition that was benign and inactive and of such a trivial nature as to be irrelevant to the severe pathology that subsequently developed.”Section 323 of the 1998 Act states:
“(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.
(2) 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.”
As the respondent correctly pointed out:
“Cole v Wenaline Pty Ltd (2010) NSWSC 78 (‘Cole’) is relevant authority for s.323 of the 1998 Act. It is noted that in order for a deduction to be made under s.323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment.”
In Fire & Rescue NSW v Clinen [2013] NSWSC 629, Campbell J referred to D'Aelo vAmbulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365; and Cole. Campbell J said at [32]:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s.323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.’ Campbell J also noted that it was ‘...necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder), Campbell J said:
“What s.323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of degree of impairment resulting from the work injury”.
A pre-existing condition or injury, even to the same body part, does not automatically invoke a deduction under s 323. The test is whether the pre-existing condition or injury actually contributes to the current impairment. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made. However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction. To put it another way, we understand the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great: (Ryder at 45).
In this case, as the respondent correctly points out, the only evidence seems to be the reference in the report of Dr Coffey dated 29 September 2015, to an MRI scan showing “some minor degenerative changes".
In these circumstances, and having regard to the authorities to which we have referred, we do not consider that any deduction is appropriate, given the lack of evidence of any impact the “minor degenerative changes” had on the degree of permanent impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 July 2023 should be confirmed
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