Blacktown City Council v Schembri
[2021] NSWPICMP 57
•21 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blacktown City Council v Schembri [2021] NSWPICMP 57 |
| APPELLANT: | Blacktown City Council |
| RESPONDENT: | Victoria Vivienne Schembri |
| APPEAL PANEL: | Member John Wynyard Dr James Bodel Dr David Crocker |
| DATE OF DECISION: | 21 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 7% WPI for the lumbar spine in a combined value 15% finding; issue related to section 323 where deduction not given for admitted earlier symptoms; nature of injury and section 4 of the 1987 Act considered; referral omitted the word “deemed”; point not taken; frank injury finding not open on evidence; worker commenced 1998; first symptoms 2004; injury date 2006; Held- injury in nature of disease; Cullen v Woodbrae applied; no evidence of pre-existing condition on commencement of employment; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 October 2020, Blacktown City Council, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 16 September 2020.
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 has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (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
This matter was referred following the issue of a Certificate of Determination (COD) on 6 November 2019. The arbitrator noted that injury to the lumbar spine (amongst other injuries) on 5 July 2005 was not disputed.
On 18 August 2020 the delegate referred this matter to an MA seeking an assessment of WPI caused by injury to the left upper extremity (shoulder) and lumbar spine on 5 July 2005. The MA was asked to accept the parties had agreed there was a 5% WPI in relation to the injury to the cervical spine and to combine that with his assessments for the lumbar spine and left shoulder.
Ms Schembri had been employed by the appellant since 1998 and was 40 years old when she began work there.
In approximately 2004, without a direct incident, she noticed the onset of pain in the posterior aspect of her lumbar spine as well as the onset of other symptoms that are not presently relevant.
She kept working until 5 July 2005 when the work she was doing caused the pain to increase. She completed the shift and was off work for about three days, but when she returned to work the pain in her lower back was radiating to the posterior aspect of the left buttock and calf. Ms Schembri underwent a course of physiotherapy.
The MA recorded that by 2007 there was an investigation and eventual surgery regarding Ms Schembri’s carpal tunnel syndrome. He noted that the low back pain continued.
Ms Schembri’s employment was terminated on 18 February 2009 and she subsequently obtained some sporadic employment between 2015 and 30 June 2017, but is not currently working.
The MA found there to be a 7% WPI for the lumbar spine, a 3% WPI for the left upper extremity (shoulder) and incorporated the agreed 5% WPI in relation to the cervical spine. The combined table value of the three assessments was 15% WPI.
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 WorkCover Medical Assessment Guidelines 2006.
The appellant employer did not seek to have the worker undergo a further medical examination. In view of the nature of the appeal, the Appeal Panel concurs no re-examination was called for.
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.
Medical Assessment Certificate
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 and 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[1] 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.
[1] [2006] NSWCA 284 (Vegan).
The sole ground upon which the appellant employer maintains that the MA fell into error was that he failed to make a s 323 deduction in relation to the assessment of WPI for the lumbar spine.
The MAC
In his findings on examination regarding the lumbar spine, the MA said:[2]
“On examination of the lumbar spine, however, there is an asymmetrical active loss of range of motion with flexion and extension limited to one-half of normal expected range. Lateral flexion and rotation to the right and left is limited to two-thirds of normal range but with no evidence of palpable or paravertebral muscle spasm or guarding. There is a negative straight leg raising test on the right and left side in both the supine and seated position.”
[2] Appeal papers pages 4-5.
The MA summarised his opinion at [7], saying[3]:
“Ms Schembri developed onset of pain during the course of her working duties with the development of discomfort in the neck, left shoulder and low back in 2004 with her employer at that time. An incident on 5 July 2005 increased these symptoms…
There continues to be discomfort in the lower lumbar back with an asymmetrical active loss of range of motion with minimal radiological findings on repeated MRI scans and
x-rays of the lumbar back and subsequent bone scan recently in July of 2018. There is no neurological impairment of the right or left lower extremities. There is description of pain that radiates into the posterior aspect of the right leg. There were no other neurological findings.”[3] Appeal papers page 6.
In explaining his calculation the MA said[4]:
“Lumbar Spine:
At the time of today’s assessment, with reference to Table 15.3 AMA 5 and the current Guidelines, Ms Schembri demonstrates a DRE lumbar Category II impairment – 5 to 8% whole person impairment…… Ms Schembri demonstrates a 2% whole person impairment due to inability to perform significant home care duties – 5 + 2 = 7% whole person impairment.”
[4] Appeal papers page 7.
The standard form question relating to the s 323 deduction in paragraph 11 was answered “Nil applicable”[5].
SUBMISSIONS
[5] Appeal papers page 9.
Appellant employer
The appellant employer submitted that the diagnosis by the MA regarding the lumbar spine was either not clear, or that it was not provided. The appellant employer suggested possible diagnoses being either the aggravation of a pre-existing degenerative disease or a soft tissue injury. Either of those diagnoses ought to have resulted in a deduction of at least 10% WPI under s 323(2) of the 1998 Act, it contended.
It was critical, the appellant employer submitted, that Ms Schembri noted the onset of pain in her lumbar spine in approximately 2004. This was clearly the manifestation of pre-existing pathology, being most likely degenerative lumbar disease or soft tissue injury. Either way, the appellant employer argued there was pre-existing pain that was intensified by the event on 5 July 2005.
Respondent
Ms Schembri submitted that the appellant employer’s case was based on speculation. The two possible diagnoses suggested by the employer were as a matter of fact both incorrect, it was submitted, as a claim was not made either on the basis of an aggravation of a pre-existing disease or a soft tissue injury.
Ms Schembri submitted that liability was accepted for both the cervical and lumbar areas of the spine with a deemed date of injury of 5 July 2005, which indicated that the injury had been contracted by gradual process.
The investigations revealed on 18 May 2006 a disc space narrowing consistent with a degenerative disc, which Ms Schembri said was consistent with development of degenerative change in the back caused by the heavy and repetitive manual tasks she was required to do between 1998 and 2005.
Ms Schembri submitted that there was no evidence that at the time she started work in 1998 that she was suffering from any degenerative change in her lumbar spine.
FINDINGS AND REASONS
Section 323 of the 1998 Act provides relevantly:
“(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.”
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) provides relevantly:
"’injury’ -
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means-(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
The nature of the injury
Disease injury
The summary and calculations by the MA, whilst identifying the criteria on examination that entitled Ms Schembri to a 7% WPI, did not give a diagnosis.
We note the suggested diagnoses submitted by the parties. The appellant employer argued that a possible diagnosis was the aggravation of a pre-existing disease condition, whilst the claimant insisted that the evidence established the contraction of a degenerative disease.
It is clear from the submissions that the appellant employer based its submission on the provisions of s 4(b)(ii) of the 1987 Act in that regard, whereas the claimant relied on the provisions of s 4(b)(i).
However, for the purposes of s 323 of the 1998 Act, these alternatives amount to a distinction without a difference.
In Cullen v Woodbrae Holdings Pty Ltd[6] it was accepted that in cases where the injury was alleged to have been either the contraction or the aggravation, exacerbation, deterioration or acceleration of a disease process, the provisions of s 323 of the 1998 did not apply unless it could be shown that a worker’s degenerative condition pre-existed the date when he/she began work. At [51] Beech-Jones J said:
“Mr Dodd submitted that the nature of the injury was one to which s 15 or s 16 applied in that it was one that involved, in the case of s 15, a ‘gradual process’ of onset of the disease or, in the case of s 16(1), consisted of the aggravation, acceleration, exacerbation or a deterioration. In both cases he submitted that gradual process or aggravation related to the entire period in which his client was employed by Woodbrae. He contended that it followed that, in order for s 323 to be applicable, I't was necessary for there to be evidence capable of supporting a finding that as at the time his client commenced employment in 1978 he was subject to an existing injury, condition or abnormality. As stated, Mr Blount accepted that was the case but contended that there was such evidence.”
[6] [2015] NSWSC 1416 (Cullen).
Sections 15 and 16 of the 1987 Act are procedural sections regarding s 4(b) of the 1987 Act. Accordingly, the distinction between the contraction, or the aggravation etc of a disease process, is not germane: both require proof that there was a pre-existing condition which pre-dated her employment in 1998. No such proof was before the MA.
Soft tissue injury
The appellant employer also submitted that a possible diagnosis could have been of a soft tissue injury. However there are some impediments to such a finding.
Firstly, the MA listed the investigations that have been taken of the lumbar spine.[7] On 18 May 2006 an x-ray showed L5/S1 disc space narrowing consistent with a degenerative disc. Although a subsequent MRI dated 30 June 2008 showed a normal lumbar spine, on 17 October 2017 had further MRI showed, relevantly, endplate degeneration.
[7] MAC page 5.
Secondly, Ms Schembri complained of continual pain in her lumbar spine down the years since she first became symptomatic in 2004, and particularly when she suffered the subject injury on 5 July 2005.
The medical specialists on the Panel agree that the history and investigations do not suggest that Ms Schembri suffered a soft tissue injury on 5 July 2005 – that is to say, an injury as described by s 4(a) of the 1987 Act. The investigations and the complaints are not indicative of a frank injury, as such injuries are known.
We are accordingly satisfied that the nature of the injury was a “disease injury” as described by s 4(b).
Section 323
We note that the MA also failed to explain why no deduction was warranted pursuant to s 323 of the 1998 Act. We have referred at the outset of these reasons to Vegan and the necessity for a MAP to give reasons. This obligation also extends to MAs.[8]
[8] Jones v Registrar WC [2010] NSWSC 481 per James J at [30 – 34].
Neither party submitted that the MAC should be vitiated for a failure to give reasons, and we agree that the path of reasoning by the MA is discernible once the above analysis of the evidence is made. The MA was aware that he was dealing with a claimant whose investigations and complaints were not consistent with a frank injury, but with the gradual onset of a degenerative disease. Once that conclusion is reached, then his finding that s 323 was not applicable becomes clear in view of the principle in Cullen.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 September 2020 should be confirmed.
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