Burns v Stewart W Burns Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Burns v Stewart W Burns Pty Ltd [2023] NSWPICMP 76
APPELLANT:	Stewart Burns
RESPONDENT:	Stewart W Burns Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	7 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant submitted that the Medical Assessor (MA) erred in relation to the deduction he made pursuant to section 323; the appellant did not challenge the primary assessments by the MA; Panel agreed; no evidence of any pre-existing condition prior to the commencement of his employment in 1984; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 October 2022 Stewart Burns (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 30 September 2022.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 MA 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 MA erred in relation to the deduction he made pursuant to s 323 of the 1998 Act. The appellant does not challenge the primary assessments by the MA.
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 MA for assessment of whole person impairment (WPI) in respect of the left upper extremity, the right upper extremity, chronic pain and scarring resulting from a deemed date of injury of 26 April 2022.
The MA obtained the following history:
“Mr Burns related that he had worked for over 30 years as a Physiotherapist. A lot of this necessitated quite extensive hands-on work. He also described that on the occasions he had to lift items or limbs of patients up and sometimes above shoulder level. He recalled that the shoulders initially were sore sometime around 2009. He continued on with his job and during the next ten years or so, the shoulder condition deteriorated on each side. The left side was more affected than the right.
He eventually came under the care of Specialist Upper Limb Surgeon, Dr Don Osborne. The condition of his left shoulder had deteriorated badly, and on 19/06/19 there was a left shoulder joint replacement. This has given him a fairly good result.
On the right side the condition continued to deteriorate. A similar procedure was conducted on 24/03/21. Part of the post-operative management was an analgesic catheter to the right brachial plexus. This was removed about four days after the surgery. Very soon after that, he developed severe neurological features down the right arm, mostly affecting the dorsum of the hand and part of the forearm. Ultimately this was identified as complex regional pain syndrome.
His further clinical management included care from Specialist Pain Management Physician, Dr Simon Tame. Part of this included stellate ganglion blocks. These were managed under general anaesthetic. Ultimately a total of eight blocks were planned.
Mr Burns related that these procedures did give him some improvement.
When he was coming up for the eighth block, it was identified that he had a cardiac arrhythmia. This block was therefore postponed, and he went through an ablation procedure at the end of March 2022. He has now been given the all-clear from his Cardiologist that he is fit to proceed with further stellate blocks.”
After documenting Mr Burns’ present treatment and symptoms, the MA then turned to consider “details of any previous or subsequent accidents, injuries or conditions”, adding:
“No previous condition has ever been identified with the upper limbs outside of the long term development of this condition, which goes back to around 2009…
Mr Burns has always worked as a physiotherapist. This continued until February 2019 when the state of his upper limbs had deteriorated to such an extent that he had no option but to cease work.”
The MA then set out details of the impact of the injuries on Mr Burns’ activities of daily living.
He then set out his findings on examination of the upper limbs, the shoulders, elbows, wrists and hands.
He noted the various investigations he had. The first was a plain X-ray of the left shoulder performed on 15 August 2014. It demonstrated: “Extensive degenerative changes”. There were subsequent investigations in 2018, 2019 and 2020. The last in March 2021 demonstrated “Total shoulder joint replacement in satisfactory position”.
The MA then summarised the injuries and diagnoses as follows:
“Mr Burns has developed extensive degenerative changes of both shoulders, mostly in the gleno-humeral joints. This has resulted in the situation where he is unable to continue with his chosen occupation as a physiotherapist.
His major clinical management has included shoulder joint replacements. This was fairly satisfactory on the left side. On the right side he has unfortunately developed complex regional pain syndrome of the right hand and forearm. This condition has been managed over a period of years by stellate ganglion blocks, which have given him some improvement. At this assessment, this condition continued with appropriate hallmarks to satisfactorily identify this diagnosis. He continues to have gross restriction of movement of the right shoulder complex and to a very much lesser extent on the left side.
Mr Burns’ presentation was completely consistent.”
The MA assessed 20% WPI in respect of the left upper extremity and 52% WPI in respect of the right upper extremity. Chronic pain was addressed in his findings relating to complex regional pain syndrome (CRPS). There was 0% WPI for scarring.
The MA then turned to consider the other medical opinions and said:
“Specialist Orthopaedic Surgeon, Dr Stephen Rimmer in his series of reports from 12/10/20 through to 21/07/22 quite strongly advises that this whole condition is due to constitutional degenerative changes and there is no component of a work related phenomenon. His major stance has been that working as a physiotherapy would not result in this level of shoulder joint arthritic deterioration.
Alternatively Specialist Surgeon, Dr Peter Endrey-Walder in his series of reports from 31/08/20 through to 09/03/22 advises that his occupation must have been predominantly associated with the development of this condition since there is no significant development of any other degenerative changes and he has not been exposed to any other event or circumstances which would result in shoulder joint deterioration. Nevertheless, no component for constitutional factors has been described and there is no deduction applied.
Specialist Pain Management Physician, Dr Simon Tame in his report of 11/04/22 quite convincingly advises that the major condition of the right hand and forearm is due to CRPS, for which 70% upper extremity impairment has been calculated. When I saw Mr Burns, I calculated this at 60%.”
In addressing the “DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY” the MA said:
“Attention is drawn to the fairly powerful argument given by Specialist Orthopaedic Surgeon, Dr Stephen Rimmer in his series of reports. It would not be a common experience to find severe degenerative changes of both shoulders necessitating shoulder joint replacements in a physiotherapist with no other precipitating factors. I am therefore persuaded that there has been a significant contribution due to natural causes. With the existing and very complicated features of this case, I am persuaded that half of Mr Burns’ condition is reasonably due to his occupation as a physiotherapist and the other half is due to the effects of naturally occurring degenerative change. Since the complex regional pain syndrome arose after the right shoulder joint replacement, and is strongly associated with this procedure, this deduction would also apply to this feature.”
The appellant makes the following submissions:
Ground I: Error on the face of the MAC
(a)    The MAC contains an inconsistency. The MAC says at page 3 that "outside of the long-term development of the condition going back to around 2009" (ie, the accepted work injury), there was no previous accident, injury or condition.
(b)    At page 6, the MAC then at [8. e], in the same vein, says that there was "no" previous injury or pre-existing condition or abnormality.
(c)    The MAC at page 10 nonetheless makes a deduction of one half for such an injury, condition or abnormality.
(d)    The above contradiction is a demonstrable error of the type specifically identified in Pitsonis v Registror of Workers Compensation Commission & Anor [2008] NSWCA.
Ground 2: Misapplication of s 323- "Previous" and “Pre-existing”
(a)    The appellant became symptomatic 25 years after starting the work to which his injury was due. The earliest X-rays were done in 2014 for the left shoulder and 2015 for the right shoulder, each post-dating the commencement of work (1984) and the onset of symptoms (2009).
(b)    No evidence of treatment or otherwise was referred to by the MA in relation to any injury, condition or abnormality that was "previous” or "pre-existing” to the commencement of the appellant's work or the development of those symptoms. To make a deduction in those circumstances amounted to… a misapplication of the section.
Ground 3: MisappIication of s 323 – Cole v Wenaline
(a)    In contravention of s 323, the MA made assumptions as to the deduction rather than relying on the evidence.
(b)    This aspect of the operation of s 323 was recently considered by Harrison ASJ in Fardell v Chiton Industries Pty Ltd [2022] NSWSC 111 (22 February 2022). Her Honour said (14 to 16):
“14. Both parties referred to the decision of Cole v Wenaline Pty Ltd NSWSC 78 ‘Cole’. In Cole, Schmidt J was considering a case with similar facts… The majority of an Appeal Panel had made a deduction of one half pursuant to s 323… In granting relief, Her Honour described how the Appeal Panel incorrectly applied a section 323 deduction…
15. In Cole, Her Honour further explained the correct legal reasoning to be observed when applying a deduction under s 323… when she said at [38]:
‘What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was, Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section….’
16. As discussed in Cole… in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
Firstly, what the extent of the resulting impairment is.
Secondly whether the pre-existing condition contributed to the impairment.
Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
(c)    The above cases of Cole and Fardell dealt with a situation where, a) there was an accepted previous injury or pre-existing condition or abnormality, b) there was a surgical procedure that followed that injury, condition or abnormality, c) it was considered possible to estimate, hypotheticalIy, what the degree of impairment might have been under a WPI assessment made after that surgery but before the injury that was the subject of the claim and d) the assessment proceeded on that basis and the MAC included a s 323 deduction that to some extent considered that hypothetical assessment and was therefore based on incorrect assumptions as to the impairment prior to the injury.
(d)    They were incorrect assumptions as to the impairment that was "due" to a previous injury or pre-existing condition or abnormality under s 323(I) of the 1998 Act.
(e)    In this case, the incorrect assumptions are of an even larger scale than in the above cases. The MA here has assumed, a) there was a pre-existing degenerative arthritis and, even though there were no symptoms before his work duties triggered them, b) the condition made a significant (one half) contribution to the total impairment.
(f)    Dr Rimmer made the same incorrect assumptions based on the same lack of evidence. Dr Rimmer further erred in a) wrongly considering that the claim was for an injury in 2009, b) by failing in his reasoning to consider the evidence of the nature and conditions of the appellant's work and c) finding that there was no injury-related impairment.
Ground 4: Misapplication of s 323 – “difficult or costly to determine”
(a)    If it is found that there was a pre-existing condition, which is disputed by the appellant on the above grounds, we are saying that the deduction in this case was "difficult or costly to determine". The "difficult" part arises from the absence of any medical evidence in the first 30 years of his employment. The difficulty is not cured by an argument that Dr Rimmer's evidence, which under s 323(3) was arguably "accepted", or at least not rejected, by the MA, was then brought within the bracketed section of s 323(2) and thereby automatically removed the difficulty referenced earlier in the sub-section. The part in brackets is only an example. The difficulty endures because Dr Rimmer himself relied on an absence of medical evidence over the 30-year period.
(b)    Because the deductible proportion is difficult to determine, and because the default deductible assumption is not at odds with the available evidence, looked at as a whole and weighed properly, and only if the Panel is against what we said in grounds I to 3 above, the deduction in this case should be assumed at 10%.
We agree with the appellant’s submissions for reasons that follow.
As Mr Burns said in his statement, he started his own physiotherapy practice in Cessnock in 1984. He would have been about 25 years old.
He also said:
“I worked fulltime hours. The nature and conditions of my employment were very arduous, requiring repetitive use of the arms above shoulder height. As a physiotherapist, I was required to use my arms constantly and repetitively above shoulder height over many years.”
He developed significant symptoms in his shoulders in March 2009, although as he said, he had experienced some “slight pain in the shoulders prior to this date…”
He was approximately 50 years old at this time.
As the appellant pointed out, the earliest X-rays were done in 2014 for the left shoulder and 2015 for the right shoulder, each post-dating the commencement of work (1984) and the onset of symptoms (2009).
There was no evidence of treatment in relation to any injury, condition or abnormality that was "previous*' or "pre-existing” to the commencement of the appellant's work or the development of those symptoms.
The MA has indeed misconstrued the concept of a previous or pre-existing condition as defined in s 323 of the 1998 Act.
As the appellant correctly pointed out:
“The MA in fact acknowledged at page 3 that ‘outside of the long-term development of the condition going back to around 2009’ (ie, the accepted work injury), there was no previous accident, injury or condition.
At page 6, in the same vein, says that there was ‘no’ previous injury or pre-existing condition or abnormality.”
The MA seems to have been persuaded by the opinion of Dr Rimmer who also has misconceived or misunderstood the provisions of s 323.
As the appellant noted:
“He made the same incorrect assumptions based on the same lack of evidence.
Dr Rimmer further erred in wrongly considering that the claim was for an injury in 2009, by failing in his reasoning to consider the evidence of the nature and conditions of the appellant's work and finding that there was no injury-related impairment.”
Cole v Wenaline Pty Ltd NSWSC 78 ‘Cole’ is the perennially cited authority on the operation of s 323. As the appellant noted:
“In the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
Firstly, what the extent of the resulting impairment is.
Secondly whether the pre-existing condition contributed to the impairment.
Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
Again, as the appellant correctly points out:
“In this case, the incorrect assumptions are of an even larger scale than in the above cases. The MA here has assumed, a) there was a pre-existing degenerative arthritis and, even though there were no symptoms before his work duties triggered them, b) the condition made a significant (one half) contribution to the total impairment.”
There is simply no evidence that Mr Burns had a pre-existing condition prior to the commencement of his work.
In these circumstances, there is simply no basis for any deduction to be made.

For these reasons, the Appeal Panel has determined that the MAC issued on
30 September 2022 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:	W4304/22
Applicant:	Stewart Burns
Respondent:	Stewart W Burns 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 Dr Tim Anderson 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)
1. Left upper extremity	26/04/22 (deemed)	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 476 F 16-28 P 469 F 16-31 P 456 F 16-12 P 457 F 16-15 P 459 T 16-8a and 8b T 16-09 P 438 T 16-01 P 439 T 16-02 and 03 P 464 F 16-25 P 463 F 16-23 P 461 F 16-21 P 463 F 16-1a	20%	0%	20%
2.Right upper extremity. Chronic pain.	26/04/22 (deemed)	Chap 2 P 10 P 81 T 17.1	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 476 F 16-28 P 469 F 16-31 P 456 F 16-12 P 457 F 16-15 P 459 T 16-8a and 8b T 16-09 P 438 T 16-01 P 439 T 16-02 and 03 P 464 F 16-25 P 463 F 16-23 P 461 F 16-21 P 463 F 16-1a. P 482 T 16-10	52%	0%	52%
3.. Scarring	26/04/22 (deemed)	P 74 T 14.1	0%	0%	0%
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					62%

[2023] NSWPICMP 76

7 March 2023