Bunnings Group Limited v Kearns
[2023] NSWPICMP 499
•6 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bunnings Group Limited v Kearns [2023] NSWPICMP 499 |
| APPELLANT: | Bunnings Group Limited |
| RESPONDENT: | Christopher Kearns |
| APPEAL PANEL | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Paul Curtin |
DATE OF DECISION: | 6 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer alleges Medical Assessor (MA) erred in assessing skin disorder in accordance with Tables 8-2 and 1-2 of American Medical Association’s Guides to the Evaluation of Permanent Impairment; MA erred in finding there was no deduction pursuant to section 323 when there was no “medical dispute” as qualified doctors for both parties had assessed a 10% deduction; Skates v Hills Industries Pty Ltd considered; Held – that MA had correctly applied both tables; that as the parties had agreed to a referral which required the MA to consider the proportion of the impairment resulting from a pre-existing edition the MA did not err in finding that the appellant had not proven a pre-existing condition which contributed to the impairment; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 April 2023, Bunnings Group Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Malcolm Linsell, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 March 2023.
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, 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 (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 ed1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). Whole person impairment is referred to as WPI.
RELEVANT FACTUAL BACKGROUND
Between January 1999 and 27 January 2021, Christopher Kearns (the respondent) was employed by the appellant as a supervisor and yardman. By his signed statement, the respondent says that all of his “work was performed outside in the sun with little coverage from exposure to the sun.” He says that he was not offered protection from the sun during the first 10 years of his employment. However, in the last 10 years of his employment he was offered “sunscreen and a wide-brimmed hat”.
In 2003, the respondent sought medical treatment for skin cancer. He states:
“I have a long-standing history of having skin cancers removed, extending back to 2003 when I had squamous cell carcinomas removed from my right temple and cheek. I had had approximately 30 BCCs removed from my nose, back, hands, arms, shoulder, legs, face and in between my fingers. I have also had numerous solar keratoses removed, usually by cryotherapy, but sometimes they have also been excised.
I had a BCC in the midline of my nose partially excised in 2016 and the surgery was followed by radiotherapy. The defect created by the excision of the BCC was filled with a small, full-thickness skin graft taken from the right side of my forehead.
On 22 July 2022, I had three more lesions biopsied.
On 28 July 2022, the Wollongong Skin Cancer Clinic found that I had a BCC on my nose, squamous cell carcinoma in situ on my right cheek and a benign actinic keratosis on my right shoulder.”
The respondent says that the procedures that he has undergone for skin cancer have “left scarring.”
On 15 November 2021, the respondent saw Dr John Giles, a plastic and reconstructive surgeon, for the purpose of a claim for permanent impairment in respect of his skin cancer. By a report dated 18 November 2021, Dr Giles assessed the respondent’s WPI in accordance with AMA 5 and the Guidelines. He expressed the opinion that the respondent suffered 3% WPI of the face and 15% WPI of the skin. He deducted one-tenth from each of these figures to reflect the fact that the respondent suffered solar damage to his skin “outside of his workplace.” He concluded that the respondent suffered 17% WPI.
On 16 May 2022, the respondent saw Dr Michael McGlynn, a hand and plastic surgeon, at the request of the appellant’s insurer. Dr McGlynn assessed 3% WPI in respect of the appellant’s face and 8% WPI in respect of his skin. He also made a deduction of one-tenth pursuant to s 323(2) of the 1998 Act to reflect “non-employment factors”. After making that allowance, he expressed the opinion that the respondent suffered 10% WPI.
The difference of opinion between Dr Giles and Dr McGlynn as to the degree of WPI gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. A delegate of the President referred the dispute to Dr Linsell for assessment. It is from his MAC that the appellant brings this appeal.
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 unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a further examination of the worker. It concluded that a further medical examination by a member of the panel would not assist in determining the issues raised by the appellant on this appeal.
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 in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that there are two errors in the MAC. First, it submitted that the MA erred in finding that the respondent fell into Class 2 of Table 8.2 of AMA 5. Secondly, it submitted that the MA did not have jurisdiction to assess pre-existing impairment as there was no “medical dispute” concerning this issue between the parties.
In respect of the error of classifying impairment under Table 8.1, the appellant noted that the MA recorded that the respondent avoided the sun where possible and:
“no longer goes fishing or rides a motorbike, no longer goes to the beach and limits playing with his grandchildren whilst outdoors.”
It argued that it was impermissible to assign Class 2 in this case, as each of the activities of daily living (ADL) enumerated by the MA, related solely to one category of ADLs, namely Social and recreational activities. Table 1-2 in Chapter 1 of AMA 5 enumerates nine Activities of daily living. They are Self-care, Personal hygiene, Communication, Physical activity, Sensory function, Non-specialised hand activities, Travel, Sexual function, and Sleep.
In that context, the appellant submitted:
“that the MA was incorrect to conclude that ‘some’ of the respondent’s activities of daily living were restricted, as only one out of nine categories required to be considered was impacted. As such, it is submitted that the MA applied the incorrect criteria and that he should have scored Class 1, which gives a maximum of 9% WPI.
The MA’s other findings are consistent with a score of class 1 in that there are skin disorder signs and symptoms, with symptoms present or intermittently present, and the respondent requires intermittent treatment.”
The appellant also submitted that the respondent did not have “a functional” inability to undertake the ADLs recorded by the MA. He was able to “ride a motorcycle, fish or play with his children.” The only restriction was that he was unable to perform these activities while exposed to sunlight. The failure to make an allowance for this also constituted an error.
The appellant concluded by submitted that the MA’s failure to consider and apply Table 1-2 of AMA 5 was a demonstrable error.
The second error alleged by the appellant arose from the fact that both Dr Giles and Dr McGlynn agreed that the respondent suffered from a pre-existing condition of his skin caused by exposure to sunlight in his private life. Both doctors had made a deduction of one-tenth pursuant to s 323(2) to reflect the proportion of the impairment which was due to the pre-existing condition.
As there was agreement between the medical practitioners on this point “the extent of the pre-existing impairment would not have formed part of the medical dispute, as there was nothing to resolve.”
In that context the fact that the MA proceeded to address the issue of a s 323 deduction was a demonstrable error. The appellant conceded that the question of the extent of the pre-existing impairment was raised in the referral document. Nonetheless, it submitted that the failure to address “this erroneous inclusion” earlier, did not preclude it being raised on this appeal. It referred to the reasoning of the majority of the Court of Appeal in Skates v Hills Industries Limited[1] where it was said that the referral document should not be given “a greater status than it warrants.”
[1] [2021] NSWCA 142.
The appellant concluded:
“In the absence of a dispute as to the extent of the pre-existing impairment for the face and the skin there was no basis for that issue to be referred for assessment. Both parties agreed that the pre-existing impairment required a deduction of one-tenth, meaning the Commission did not have (to) resolve that issue and the agreement should stand.”
The respondent submitted that there was ample evidence to support the finding by the MA that some of the ADLs were limited in performance, the history obtained by the MA was not confined to the category of Social and recreational activities. It was “relevant to all categories, noting the categories overlapped to a large extent.”
In respect of the argument that the MA had no jurisdiction to address the issue of a deduction pursuant to s 323, the respondent submitted there was nothing in the reasoning in Skates which would:
“support the proposition that an MA could (much less, ‘must’) decline to assess an aspect of the referral, merely because the parties’ doctors had agreed to a particular percentage.”
Further, it “can hardly be an error for the MA to assess something that was referred.”
Finally, the respondent submitted that as an independent assessor, the MA was required to reach their own conclusions irrespective of what other experts had found on the questions referred for assessment.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[2], Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in its application.
[2][2013] NSWSC 1792 (11 December 2013).
In Campbelltown City Council v Vegan,[3] 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.
[3] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[4] An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace v Australia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the Medical Assessor without first identifying error.
[4][4] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the Medical Assessor to provide reasons. It is evident from the reasoning of the High Court of Australia in Wingfoot Partners Australia Ltd v Kocak[5] that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[5] [2013] HCA 43.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation Legislation; see, for example, El Masri v Woolworths Ltd.[6]
[6] [2014] NSWSC 1344.
Included in the documents referred to the Panel in this matter were the clinical notes of the Australian Skin Cancer Clinic which were lodged with the Personal Injury Commission (Commission) under cover of an Application to Admit Late Documents(AALD) dated 10 February 2023. These documents were not made available to the MA as they are not “fresh evidence” the basis of their reception into evidence on the appeal is not readily apparent. However, the Panel was informed that both parties consented to it having access to the documents.
At the preliminary conference, the Panel considered the clinical notes attached to the AALD. It concluded that the notes were not material to the grounds of appeal raised by the appellant in this case. Accordingly, it was unnecessary to further consider the entries in the notes.
It is common ground that in assessing permanent impairment due to skin disorders, it is necessary to consider the criteria in Table 8-2 at p 177 of AMA 5. That Table establishes five classes of skin disorder of increasing severity. WPI of 0% to 9% is assigned to Class 1 and 10% to 24% assigned to Class 2. The criteria described in respect of the classes overlap. Both Class 1 and 2 require signs and symptoms of skin disorder to be present or intermittently present. The additional criteria for Class 1 are the following:
“No or few limitations in performance of activities of daily living: exposure to certain chemical or physical agents may temporarily increase limitation
and
requires no or intermittent treatment.”
The additional criteria for Class 2 are the following:
“Limited performance of some activities of daily living
and
may require intermittent to constant treatment.”
Debate between the qualified medical practitioners in this case concerned whether the respondent worker had “a few” or “some” limitations in the performance of ADLs. Dr Giles opined that the respondent had limitations in the performance of “some” ADLs and assigned Class 2 whereas Dr McGlynn expressed the opinion that the respondent had “a few” limitations in the performance of the ADLs and assigned Class 1.
In the MAC, the MA concluded that the respondent fell within Class 2. He stated:
“The solar damage and scars elsewhere on Mr Kearns body are clearly present and have limited some of his activities of daily living and will require indefinite surveillance and treatment. This is equivalent to a Class 2 (10%-24%) Impairment of the Whole Person. In my opinion, his impairment lies towards the lower end of this Class at 12%.”
Dealing with the other medical opinions, the MA said this:
“My opinion differs primarily from Dr McGlynn as I assessed Mr Kearns skin disorder as being Class 2 as he has limited performance of some (rather than a few) of his activities of daily living. In particular, he avoids the sun where possible, always wears sunscreen, hat, sunglasses and protective clothing while outside, no longer goes fishing or rides a motobike, no longer goes to the beach and limits playing with his grandchildren whilst outdoors.”
In reaching this conclusion, the Panel has no doubt that the MA considered Table 1-2 at p 174 of AMA 5, where the following appears:
“To determine the appropriate impairment class (Table 8-2) for an affected individual, evaluate the severity of the skin condition and the impact of the skin condition on the ability to perform activities of daily living (see Table 1-2).”
There is no evidence to establish that the MA overlooked or was unaware of this instruction as the appellant implies. His approach to classification of skin disorder suggests the contrary.
The Panel does not accept that the limitations in ADLs referred to by the MA only relate to the category of Self-care as the appellant suggests. They may also affect Travel, as the respondent is not able to ride his motorbike in the daytime, and the category of Physical activity, as the respondent’s walking is limited by the need to avoid exposure to sunlight during the day.
Further, the panel does not accept the appellant’s argument that only those activities that cause “functional” limitations of the body part or system referred for assessment can be considered when evaluating skin disorder. Chapter 1 of the Guides clearly contemplates the contrary. AMA 5 at p 2 states:
“An impairment may lead to functional limitations or the inability to perform activities of daily living.” (Panels italics)
However, the more important reason why this ground of appeal must fail is that neither Chapter 1.2(a), which deals with the concept of impairment, or Chapter 8 of AMA 5, which deals with assessment of skin disorders, provide any support for the appellant’s case. It is not stated, for example, that if only one of the nine scales of activities described in Table 1-2 is precluded, impeded, or restricted by a disorder of the skin, only a Class 1 impairment of the skin can be found. The language of Chapter 1.2 again suggests the contrary. At p 177 the following appears:
“The activities of daily living, as originally developed by the Guides in the first and second edition signify common activities currently represented in scales of activities of daily living. The Guides refers to common ADLs as listed in Table 1-2. The ADLs listed in this Table correspond to the activities that physicians should consider when establishing a permanent impairment rating. A physician can often assess a person’s ability to perform ADLs based on knowledge of the patient’s medical condition and clinical judgement. When the physician is estimating a permanent impairment rating Table 1-2 can help to determine how significantly the impairment affects these activities. Using the impairment criteria within a Class and knowing the activities the individual can perform, the physician can estimate where the individual stands within that Class.” (Panel’s italics)
It is evident that the table was incorporated in AMA 5 to assist the MA in determining permanent impairment. It does not prescribe outcomes. Table 1-2 is relevant to the concept of impairment used throughout AMA 5. It does not state, for example, that an impairment resulting in total deafness must be awarded the minimum level of impairment because only Sensory function is affected or that a worker who had lost their sexual organs has the minimum impairment because only Sexual function is affected.
In the opinion of the Panel, the MA has not erred either in failing to consider Table 1-2 or in his conclusion that some, rather than a few, activities were affected by the skin cancer. As the Panel stated above, some of the criteria overlap the classes. That may give rise to a difference of opinion as to the appropriate class. On the MA’s history there is no doubt that the determination that the respondent fell into Class 2 was open to him. The Panel concludes that error has not been established.
The respondent’s second argument is that the MA erred in addressing the issue of a pre-existing condition when it was not the subject of a medical dispute. The respondent relies on the reasoning of the majority of the Court of Appeal in Skates in support of this contention. In the opinion of the panel, this argument cannot succeed. As the appellant concedes, the referral for assessment required the MA to determine:
“whether any proportion of permanent impairment is due to any previous injury pre-existing condition or abnormality, and the extent of that proportion (s319(d))”
That document was forwarded to both parties at the time it was issued by the delegate of the President. If it did not accurately record the dispute between the parties, either party had the opportunity to correspond with the delegate as to the terms of the referral and, if necessary, request a preliminary conference before a member of the Commission to make submissions as to these terms. In that event, the terms of the referral could be determined by the member. The appellant did not seek to amend the referral or to refer the matter to a member.
While the decision in Skates may have attenuated the status of the Referral, it must remain an important document in determining the nature of the medical dispute. In many cases it is settled by consent at a conference or arbitration hearing. In some cases it reflects the determination of the Member as to the nature of the injury following a contested hearing. In all cases it is referred to the parties for their approval. It has statutory underpinning in the Guidelines which state that it is to “make clear to the assessor the injury or medical condition for which an assessment is sought.”
In Skates, the majority upheld the finding at first instance that Dr Machart, the MA, had erred in failing to limit his assessment to the terms of the dispute as stated in the referral. At [35], Basten J said this:
“Further, it is apparent that the referral by the Registrar was in a standard form, as was the application to resolve a dispute. There was no suggestion that these forms were not in appropriate terms. It follows that the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which it was held should have been taken into account in assessing the claim) was correct in concluding that Dr Machart’s assessment contained demonstrable error in failing to be limited to the terms of the claim.”
By the same reasoning, as the referral by the delegate in this case was in standard form and as it was in terms agreed between the parties, the MA would have erred if he had not determined the medical dispute in accordance with its terms. In Skates the trial judge and Court of Appeal also found that the Medical Appeal Panel erred in failing to consider a body part which both parties agreed should have been included in the referral. But that is not the case here. There is no agreement that the MA should not have determined the extent, if any, of a deduction pursuant to s 323.
It is unfair to attempt to transfer the requirement to identify the grounds of a medical dispute from the parties to a MA who has no familiarity with the legal process and no understanding of what compromises or concessions had been made by the parties prior to the referral. Generally, the MA will not fall into error if he assesses a dispute in accordance with the terms of a referral. There can be no doubt that he has performed that task in this case.
Once it is accepted that the MA had jurisdiction to assess impairment this ground falls away. The MA found that the respondent’s skin damage was solely due to exposure to the sun at work. Thus it was a disease which was contracted in the course of his employment and attracts section 15 of the 1987 Act. In those circumstances there can be no deduction for a pre-existing condition pursuant to s323. It is different , of course, if the finding is one of aggravation or deterioration and s16 applies. This ground of appeal is not made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 March 2023 should be confirmed.
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