Bunt v Keolis Downer Hunter Pty Ltd
[2024] NSWPICMP 1
•8 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bunt v Keolis Downer Hunter Pty Ltd [2024] NSWPICMP 1 |
| APPELLANT: | Daniel Mark Bunt |
| RESPONDENT: | Keolis Downer Hunter Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 8 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant worked as a deckhand for 24 years from the age of 21 and suffered an injury to his lumbar spine from the work he did in that time; Medical Assessor (MA) made a deduction under section 323(1) of 10% for proportion of appellant’s permanent impairment he found was due to a previous injury or pre-existing condition; whether MA erred by making that deduction; whether MA erred with respect to his assessment of appellant’s impairment relating to ADL; Appeal Panel found MA erred with respect to deduction because there was no evidence of a pre-existing condition or previous injury; Appeal Panel found MA did not adequately explain his assessment relating to ADL and consequently erred; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 September 2023 Daniel Mark Bunt, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 September 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 ed
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 appellant commenced employment as a deckhand with the State Transit Authority of New South Wales in 1996. He worked on the Stockton Ferry and continued to do so for a period of 24 years. It would seem that around July 2017 the business of running that ferry was transferred to Keolis Downer Hunter Pty Ltd, the respondent, and the appellant became an employee of the respondent at that point in time. The Appeal Panel infers that both from a report of Dr Anil Nair dated 21 June 2022 and the decision under s 327 (4) of the 1998 Act made by a delegate of the President of the Personal Injury Commission (Commission) wherein the delegate nominates Keolis Downer Hunter Pty Ltd as respondent to the appeal.
At the time the appellant commenced his employment as a deckhand with the State Transit Authority he would have been either 20 or 21 years of age. He suffered an injury to his L4/5 and L5/S1 discs as a consequence of the work he did over the period of 24 years on the Stockton ferry.
Within that time he also suffered a specific injury in 1998 when he was required to lift repeatedly significant quantities of weight. This injury necessitated he take a week’s absence from his employment. He also suffered episodes of lower back pain that at times became severe and required him periodically to take time off work. On 27 December 2017 he suffered intense pain in his lower back when he tried to lift a gang plank sideways. On 24 January 2018 he also suffered low back pain when he was required to lift a heavy gang plank.
In November 2014 his general practitioner (GP) referred him to neurosurgeon and spine surgeon Dr Mitchell Hansen. An MRI scan was done and ultimately Dr Hansen performed a discectomy.
On 5 June 2019 surgeon Dr David Millons examined the appellant at the request of the appellant’s solicitors. Dr Millons advised that he diagnosed the appellant suffered from chronic degenerate changes in the L4/5 and L5/S1 disc that gave rise to the appellant experiencing intermittent symptoms since 1996 whilst doing his daily labours on the ferries.
Dr Millons subsequently again examined the appellant on 11 February 2022, again at the request of the appellant’s solicitors. In a report of 11 February 2022 Dr Millons expressed his opinion that the appellant “has ongoing problems with his lower back which had their origin when he was 21 in 1998 while manhandling wooden gang planks on the ferries”. Dr Millons advised that he assessed the appellant had 15% whole person impairment (WPI) from his injury. Dr Millons also advised that he assessed the appellant’s impairments by reference to DRE lumbar category III, for which the base rating impairment is 10% WPI. Dr Millons advised that he assessed the appellant had 2% WPI due to the appellant’s lumbar spine impairment having a “mild impact on ADL”. Dr Millons advised the appellant met the criteria for radiculopathy, which under Table 4.2 of the Guidelines allowed for an additional 3% WPI. Hence Dr Millons’ assessment that the appellant had 15% WPI from his injury.
On 28 March 2022 the appellant’s solicitors wrote to the respondent’s insurer notifying it that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 15% WPI. It provided the insurer with several documents to support the appellant’s claim including the reports of Dr David Millons dated 5 June 2019 and 11 February 2022.
Following the appellant making this claim, the respondent’s solicitors arranged for the appellant to be examined by orthopaedic surgeon Dr Anil Nair on 21 May 2022. In report of 25 May 2022 Dr Nair advised that he assessed the appellant’s permanent impairment from his injury to be 13% WPI. Dr Nair in a subsequent report of 21 June 2022 clarified that his assessment that the appellant had 13% WPI from his injury was based on the appellant falling within DRE category III because the appellant had a herniated disc that required surgical treatment and because the effects of the appellant’s impairments on his activities of daily living qualified him for an increase in the WPI to 13%.
On 20 July 2022 the respondent’s solicitors wrote to the appellant’s solicitor advising them that the respondent offered to pay the appellant compensation for 13% WPI. It is apparent that this offer was unacceptable to the appellant since the appellant filed with the Commission an application to resolve a dispute dated 9 June 2023 seeking determination of his claim for compensation under s 66 of the 1987 Act.
The matter was referred to the Medical Assessor by a delegate of the President. The Medical Assessor examined the appellant on 1 August 2023 to conduct the assessment. As noted earlier, he issued the MAC on 29 August 2023.
In the MAC the Medical Assessor detailed that he assessed the appellant’s permanent impairment relating to his lumbar spine accorded with DRE category III because the appellant had surgical decompression. The Appeal Panel observes that both Dr Millons and Dr Nair also made that assessment and neither party has raised any controversy about the Medical Assessor coming to the same conclusion.
The Medical Assessor also assessed a further 1% WPI based on paragraph 4.34 of the Guidelines for restrictions the appellant has with his activities of daily living. With respect to that, the Medical Assessor noted that the appellant has episodic pain in his back that varied from day to day as in unable to sit for long periods. The Medical Assessor noted that the appellant lived on an acre of land and that he has some restriction in his ability to maintain the grounds. The Medical Assessor noted that the appellant is no longer able to play golf or tennis. The Medical Assessor was also aware that Dr Nair obtained a history from the appellant of the appellant having difficulty cutting his toenails. The Medical Assessor was aware that Dr Nair assessed 3% WPI for the restriction the appellant had on his activities of daily living. The Medical Assessor commented that he considered that was “excessive”.
The Medical Assessor also expressed his opinion that the appellant had a pre-existing condition of degenerative disc disease and left L5/S1 disc protrusion. The Medical Assessor said the following in answer to a standard question in the MAC at 8e, relating to whether any proportion of permanent impairment is due to a previous injury, pre-existing condition or abnormality:
“The assessable impairment is a result of injury sustained at work at around 2008 to 2009, which resulted in discectomy in 2014. The injury on 24 January 2018 has not added further impairment”.
The Medical Assessor said at 11b of the MAC that the appellant’s “current impairment is consequent to the pre-existing injury and surgery undertaken in 2014”. He said at 11c of the MAC “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”.
Hence, the Medical Assessor certified that, after making that deduction under s 323(1), the appellant’s permanent impairment from his injury was 10% 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the issues raised in the appeal relate to the deduction the Medical Assessor made under s 323(1) of the 1998 Act and to Medical Assessor’s assessment of the effect the appellant’s spinal impairment has on his activities of daily living. Those issues can be dealt with based on the material before the Appeal Panel. Further, neither party raised any issue in the appeal relating to the Medical Assessor’s examination of the appellant or the Medical Assessor’s findings from his examination.
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 submitted that the Medical Assessor applied incorrect criteria by making a deduction under s 323(1) of the 1998 Act. The appellant submitted that the Medical Assessor did not engage in a proper evaluation of the evidence to establish whether a deduction should be made but simply proceeded on an understanding that because the appellant had experienced back pain and had back surgery a one tenth deduction should automatically apply. The appellant submitted that there is a demonstrable error in the MAC because the Medical Assessor failed to consider the relationship between the appellant’s condition and his history of ongoing unresolved back injury.
The appellant submitted that the Medical Assessor also made an error by adding only 1% WPI for the effect his impairment has on his activities of daily living. The appellant said both Dr Nair and Dr Millons added 3% WPI for the impact the appellant’s impairment had on activities of daily living.
In reply, the respondent submitted that the Medical Assessor correctly applied a one tenth deduction having regard to evidence of the appellant having pre-existing degenerative disc disease.
The respondent submitted further that the appellant’s submission that Dr Millons assessed a 3% WPI was wrong. The respondent referred to Dr Millons in his report of 5 June 2019 initially advising he assessed the appellant had no impairment on his activities of daily living, which Dr Millons subsequently revised in his report of February 2022 to 2% WPI. The respondent submitted that the Medical Assessor was entitled to reach his own conclusion on this issue.
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.
Section 323
With respect to a deduction to be made under s 323(1) it is necessary to establish what the appellant’s pre-existing condition was at the “relevant date”.[1]
[1] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [46] (Cullen).
In this case, given that the appellant’s injury arose as consequence of the work he did as a deckhand from the age of 20 or 21 years of age and for a period of 24 years, the pre-existing condition for which a deduction is to be made under s 323 (1) must be a condition that was present at the start of his employment as a deckhand in 1996.[2] To say that another way, given that the appellant’s injury occurred due to the effect that his work as a deckhand had on his lumbar spine over a significant course of time, the relevant date, in this matter is the date upon which he commenced the task that had the deleterious effect on his lumbar spine.
[2] Cullen at [47]-[58] Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211.
The Appeal Panel repeats that at the relevant date the appellant was either 20 or 21 years of age. There is no evidence that he had any symptoms in his back at that point in time and indeed, given his age, it is highly unlikely that he would have had any degeneration in his lumbar spine. There is simply no evidence to indicate to the contrary. Indeed, in the Appeal Panel’s view, the activities that the appellant did over the course of 24 years in his employment as a deckhand was likely to have caused the degeneration in his lumbar spine and indeed was the factor that would have necessitated his surgery in 2014.
The Appeal Panel therefore concludes that the appellant did not have any pre-existing condition or had suffered a previous injury at the relevant date. The Medical Assessor was consequently wrong to engage s 323(1) of the 1998 Act when assessing the appellant’s permanent impairment from his injury. Consequently, the MAC contains a demonstrable error by virtue of the Medical Assessor doing so and, further, the Medical Assessor applied incorrect criteria by engaging that provision to assess the appellant’s permanent impairment from his injury.
ADLs
In regard to the Medical Assessor’s assessment of the effect of the appellant's injury on the appellant's ADLs, the Appeal Panel observes that [4.29] of the Guidelines reads as follows:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. The bottom of the range is chosen initially, and a percentage of from 0-3 per cent may be added for the impact of the injury on the worker’s ADL. Hence, for example, for an injury which is rated DRE Category II, the impairment is 5 per cent, to which may be added an amount of up to 3 per cent for the effect of the injury on the worker’s ADL. The determination of the impact on ADL is not solely dependent on self reporting, but is an assessment based on all clinical findings and other reports.”
In the succeeding two paragraphs in the Guidelines, there follows a diagram and a key to the diagram, the upshot of which is that, as a guide, if a Medical Assessor considers there is a difference in a worker's ability to perform ADLs as a consequence of an impairment of the worker's spine then the Medical Assessor should add one percent to the bottom range of the relevant DRE category if that impairment affects the worker's ability to perform outdoor or recreational activities, two percent if the injury impairs the worker's ability to attend to his or her domestic requirements and three percent if the injury affects the worker's ability to attend to his or her personal needs. The Appeal Panel emphasises however, that this is only a guide, and the overriding requirement is for the Medical Assessor to add an amount to the bottom range of the relevant DRE category for the effect an injury to the spine has on the activities of daily living only if that addendum accords with the Medical Assessor's clinical judgement.
In the Appeal Panel’s view the Medical Assessor provided very sparse reasons for his assessment that the impact of the appellant’s spinal impairment on the appellant’s ADLs warranted an addition of 1% WPI. The Appeal Panel notes from the evidence that, consistent with what the appellant submitted, as a consequence of the appellant’s lumbar spine impairment he is unable to undertake sports he did previously, he is unable to mow his lawn and garden, he has some difficulty with household tasks and some difficulty with minor matters relating to his personal care such as difficulty putting on shoes and cutting his toenails. It is not apparent from the very sparse reasons that the Medical Assessor provided relating to this issue that he considered all these matters. In the Appeal Panel’s view the effect on the appellant’s ADLs as a consequence of his spinal impairment does not warrant an addition of 3% WPI. This is because the appellant is able to attend to numerous household tasks, although not all, and is able to attend to the vast majority of his personal care needs. In the Appeal Panel’s view that warrants an addition of 2% WPI in accordance with paragraph 4.33 of the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 August 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4158/23 |
Applicant: | Daniel Mark Bunt |
Respondent: | Keolis Downer Hunter Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Rob Kuru and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 24/01/2018 | Chapter 4 Paragraphs 4.33-4.35 | Table 15-3 | 12% | - | 12% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
0
3
0