Coles Supermarkets Australia Pty Ltd v Thornton

Case •

[2022] NSWPICMP 462

•

16 November 2022
DETERMINATION OF APPEAL PANEL
CITATION: Coles Supermarkets Australia Pty Ltd v Thornton [2022] NSWPICMP 462
APPELLANT: Coles Supermarkets Australia Pty Ltd
RESPONDENT: George Thornton
Appeal Panel
MEMBER: Paul Sweeney
MEDICAL ASSESSOR: James Bodel
MEDICAL ASSESSOR: Tommasino Mastroianni
DATE OF DECISION: 16 November 2022
CATCHWORDS: 

wORKERS cOMPENSATION - Employer alleges error in Medical Assessor (MA) failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); MA stated that he could not identify a pre-existing condition; made no reference to previous complaints of back pain in the clinical record; Wingfoot Australia partners Pty Ltd v Kocak applied; Held – absent a brief reference to the previous complaints the MA had not made clear the actual part of his reasoning in respect of a pre-existing condition; Medical Assessment Certificate revoked; section 323(2) of the 1998 Act applied.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 2 August 2022, Coles Supermarkets Australia Pty Ltd (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 5 July 2022.

  2. 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 MAC contains a demonstrable error.

  3. 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.

  4. 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 the PIC Rules.

  5. 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

  1. George Thornton (the respondent) was employed by the appellant at its premises at Greenacre. He performed pick and pack work, filling customer orders, and loading trucks.

  2. On 24 July 2014, while lifting crates on to the back of a delivery van, he suffered an injury to his low back. After consulting with his general practitioner, Dr Saad, and undergoing scans, he was referred to Dr Randolph Gray, an orthopaedic surgeon.

  3. On 17 October 2014, the respondent underwent a microdiscectomy at L5/S1 performed by Dr Gray at Westmead Hospital. Unfortunately, the surgery did not ameliorate his low back and leg pain. While he returned to work, his symptoms worsened. He had a significant exacerbation of back pain in 2016.

  4. Subsequently, he saw Dr Abraszko, a neurosurgeon and Dr Donnellan, another neurosurgeon, both of whom recommended that he undergo a lumbar fusion. On
    14 December 2018, Dr Donnellan performed a lumbar fusion at L5/S1 at the Prince of Wales Private Hospital Randwick. This surgery was also unsuccessful leading to the need for a further operative procedure.

  5. The respondent continues to suffer low back pain which interferes with his domestic and recreational activities. He has not returned to work since September 2016.

  6. On 9 November 2020, the respondent saw Dr Matthew Giblin, an orthopaedic surgeon, at the request of his solicitor. Dr Giblin expressed the opinion that the respondent suffered an L5/S1 disc lesion in the injury of 24 July 2014 for which he underwent a microdiscectomy. He suffered a further rupture of this disc in 2016 leading to a lumbar interbody fusion at L5/S1 followed by a further posterior fusion at L5/S1 “due to graft issues”.

  7. Dr Giblin recorded that the respondent had “no past history of this or a similar problem”. He assessed 28% whole person impairment (WPI) in respect of the respondent’s lumbar spine and 1% for scarring in accordance with Table 14-1 of the Guidelines. He made no deduction pursuant to s 323 of the 1998 Act for pre-existing injury, conditions or abnormality.

  8. Dr James van Gelder saw the respondent on two occasions at the request of the appellant. By a report of 10 July 2017, he diagnosed non-specific low back pain and residual lumbar radiculopathy following an L5/S1 intervertebral disc herniation in the 2014 injury. He thought that he also had signs of severe anxiety and a chronic pain condition with central sensitisation. He doubted that the proposed fusion would alleviate the respondent’s low back pain as he did not have “clear cut indications on what surgical treatment”. Dr van Gelder reviewed the respondent’s radiological history which commenced with an X-ray of July 2014. He stated:

    “This showed decreased disc height at L5-S1 and the common degenerative changes. The CT scan from 28/07/14 showed broad disc bulging and osteophytes at L5-S1 impacting the S1 nerve consistent with chronic degenerative change. An MRI scan from 7/08/14 showed a moderately large intervertebral disc protrusion at L5-S1. There was mild L4-5 degenerative disease. An MRI scan from January 2015 showed normal post-operative changes. There was degenerative disc disease and an annular bulging at L5-S1.”

  9. Dr van Gelder expressed the opinion that the radiological evidence was consistent with:

    “A history of chronic degenerative disc disease and an episode of disc herniation treated with a discectomy operation. Mr Thornton has a substantial contribution to his pre-existing back condition from his work at Coles Supermarket. His work at Coles Supermarket has exacerbated his symptoms, but not aggravated his condition.”

  10. Dr van Gelder saw the respondent again on 11 February 2021 and provided a further report of 17 May 2021. He recorded a history that the respondent had no prior back injuries. He thought that it was unlikely that the respondent would return to work. He thought that he suffered from a psychological condition and chronic pain superimposed upon the back injury. He  assessed 23% WPI in respect of the respondent’s lumbar spine. He stated:

    “I have apportioned Mr Thornton’s whole person impairment as 50% attributable to the July 2014 injury, 20% to the January 2016 injury, and 40% to the condition and nature of his work. Of the 40% attributable to the conditions and nature of his work in heavy manual labouring work and manual handling work, I attributed 20% to the conditions and nature of his work prior to starting working in a supermarket in 2011.”

  11. By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The difference of opinion in respect of WPI between Dr Giblin and Dr van Gelder 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 matter to
    Dr Anderson. It is from his assessment that the appellant brings this appeal.

PRELIMINARY REVIEW

  1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the worker to undergo a further medical examination. Neither party sought a re-examination by a specialist member of the panel.

  2. Further, as the primary ground of appeal raised by the appellant concerned the failure of the MA to make a deduction for a previous injury or pre-existing condition pursuant to s 323 of the 1998 Act, a re-examination would not have assisted the panel. The panel had before it comprehensive histories recorded by specialists in four medico-legal reports and records of the respondent’s medical treatment dating back to 2003.

EVIDENCE

  1. The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

  1. The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

  1. Both parties made written submissions. They are not repeated here in full, but have been considered by the appeal panel.

  2. In summary, the appellant submits that the MA erred in failing to make a deduction for a pre-existing condition pursuant to s 323 of the 1998 Act or, alternatively, failed to give any or any sufficient reasons for not making such a deduction given “the extensive evidence that was before him”. The appellant also argued that:

    “The MA failed to apportion the total impairment percentage of the lumbar spine to specific events including the prior injuries to the lumbar spine in 2003, 2007, 2008, 2010. The MA also failed to note these incidents in the worker’s history.”

  3. The appellant argued that given the “extent of medical evidence available to the MA” in respect of the respondent’s pre-injury condition the deduction should be greater than 10% of the impairment mandated by s 323(2).

  4. The appellant then referred to complaints of back pain made by the respondent to medical practitioners on 19 July 2003, 4 February 2007, 23 January 2008 and 27 July 2010. It argued that pathology in the respondent’s lumbar spine was “consistently demonstrated in the medical evidence from as early as 2003”. It also referred to a history of low back pain radiating to the left thigh since an injury three years previously in an X-ray report dated
    24 July 2014.

  5. The appellant also relied on the evidence of Dr van Gelder that a pre-existing condition contributed to the respondent’s current WPI, noting that Dr van Gelder apportioned 20% of the respondent’s WPI to his employment activities “prior to commencing with Coles in 2011”.

  6. The appellant also referred to the judgment of Simpson J in Marks v Secretary, Department of Communities and Justice[1] where her Honour affirmed that a deduction is required whether or not the pre-existing condition was symptomatic at the time of injury. Finally, the appellant observed that the MA:

    “failed to address the longstanding lumbar spine pathology evidenced by the prior injuries to the lumbar spine in 2003, 2007, 2008 and 2010.

    This material is, in the appellant’s view, material that could not be ignored by the MA and should have been commented upon.”

    [1] [2021] NSWSC 616.

  7. By his submissions, the respondent argued that before a deduction should be made pursuant to s 323, it was necessary to conclude that the pre-existing injury contributed to the current impairment. He referred to Cole v Wenaline[2] and Ryder v Sundance Bakehouse[3] where it was emphasised that the pre-existing condition must have made a difference to the degree of WPI resulting from the work injury before a deduction can be made.

    [2] [2010] NSWSC 78 (Cole).

    [3] [2015] NSWSC 526.

  8. The respondent argued that the MA had before him all of the material relied on by the appellant to establish a pre-existing condition and chose not to make a deduction pursuant to s 323. He argued that prior to 2014, he had performed heavy work over many years and there was no “indication that he suffered any symptoms or impairment of his low back whilst carrying out such work”.

  9. In these circumstances, the MA was correct in not applying a s 323 deduction to the respondent’s current impairment. He was also correct in not engaging with Dr van Gelder’s opinion “which was not the appropriate method of assessment as to whether there should be any s 323 deduction”. In the alternative, the respondent submitted that a fair reading of
    Dr van Gelder’s reports did not support the appellant’s contention that there should be a
    s 323 deduction for the nominated injuries between 19 July 2003 and 23 July 2010.

  10. The respondent submitted that if the appeal was referred to a MAP by the President:

    “it should be rejected on review by an appeal panel and the assessment by medical assessor Anderson confirmed.”

FINDINGS AND REASONS

  1. 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 subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[4]. The Judge 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 her application.

    [4] [2013] SC 1792 (11 December 2013.

  2. In Campbelltown City Council v Vegan[5], 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.

    [5] [2006] NSWCA 284 (Vegan).

  3. The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[6]. 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 vAustralia 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 MA without first identifying error.

    [6] [2008] NSWCA 116.

  4. 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 MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia partners Pty Ltd v Kocak [2013] 252 CLR 80 that it is only necessary for the MAC to explain the actual path of reasoning of the MA 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. The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).

  6. By his MAC, the MA noted that the matter had been referred for assessment in respect of injury on 24 July 2014. Relevantly, he took a history that:

    “No pre-existing or subsequent issue of significance has been identified.”

  7. The MA stated that the respondent suffered “severe discogenic pathology at the L5/S1 articulation” around mid-2014. He opined that he had been left with “significant dysfunction of his lower back with radiculopathy down the left leg”. He assessed 27% WPI for the respondent’s lumbar spine and 1% for scarring. Thus he certified that the respondent suffered 28% WPI. Under the paragraph dealing with pre-existing conditions or abnormality, he stated:

    “There has been no pre-existing condition which would necessitate the application of a deduction.”

  8. The panel accepts the respondent’s argument that it is unnecessary for the MA to refer to each document in his brief. However, in failing to refer to the medical evidence in respect of the respondent’s previous injuries or pre-existing condition, the MA arguably erred in law: see Mifsud v Campbell (1991) 21 NSWLR 725 at 728. Certainly, in the absence of some brief consideration of this evidence the panel is unable to understand the actual path of the MA’s reasoning that there was “no pre-existing condition”. Thus, his reasoning does not comply with the instruction in Wingfoot.

  9. As there is error in the MAC, it is necessary for the panel to reassess the existence of a pre-existing condition and whether it contributed to the current impairment certified by the MA.

  10. In arguing that the respondent suffered from a pre-existing condition, the appellant relied on the clinical history recorded in an X-ray report of Dr Ketheswaran of 24 July 2014. The report recorded:

    “Pt had an accident 3 years ago and has LBP radiating down left thigh since.”

  11. If the note conveyed an accurate history of the state of the respondent’s back pre-injury, it would provide a basis for a substantial deduction pursuant to s 323. It suggests that the applicant suffered a very symptomatic lesion of his lower back prior to the injury. However, after considering the entirety of the contemporaneous medical record, the panel was not convinced that it was an accurate history. There is no other evidence to suggest that the respondent had significant back pain and radiculopathy for three years prior to his injury. Rather, he appears to have been able to perform arduous physical work throughout that three year period for the appellant without complaint.

  12. The note is to be contrasted with the history recorded by Dr Saad, a general practitioner, on 5 August 2014, which states:

    “24/7 loading onbline [sic] van.

    bending to pick up crate – sudden low back pain with radiation – S1”

  13. The bulk of the medical evidence suggests that the respondent suffered a sudden onset of back and leg pain as a result of a disc prolapse following the injury at work in August 2014. Nonetheless, it is evident that the respondent has complained to medical practitioners of low back pain from time to time since 19 July 2003.

  14. Dr Arain, a general practitioner of Wallsend diagnosed the respondent as suffering soft tissue injuries of his cervical spine and his lumbosacral spine as a result of poor ergonomics at his place of employment in July 2003. The respondent was off work for several weeks before commencing a return to work program. He finally returned to his pre-injury work on
    19 October 2003. A report of a CT scan performed by Dr Leroux on 29 September 2003 records that the scan demonstrated mild broad-based posterior disc bulging at L5/S1 with no signs of disc herniation or nerve root entrapment.

  15. On 5 February 2007, Dr Arain recorded that the respondent had low back ache since an injury “4/02” after which he went to Wallsend Hospital where he had X-rays and was prescribed anti-inflammatories. He noted a history of injury years ago. The respondent was referred for physiotherapy. He had no neurological deficit on examination.

  16. Then, on 13 June 2007, Dr Mehta recorded that the respondent experienced back pain radiating to his left leg. The doctor recorded that the respondent had injured his back four months previously when lifting a heavy weight but “pain has worsened”. It might readily be inferred from this note that the applicant had experienced back pain and leg pain for a period of some five months at the time of this examination.

  17. Then, on 27 January 2008, the respondent complained of a soft tissue injury to the left lumbar region after he was struck on the left flank while moving parts from a truck. On
    1 February 2008, Dr Arain recorded that the respondent had largely recovered but for “mild tenderness left lumbar area”.

  1. On 4 August 2010, the respondent reported to Dr Arain that he had hurt his back when lifting at work a week previously, however, he had largely recovered.

  2. In reassessing whether there should be a deduction for a preexisting condition in respect of the lumbar spine, it is necessary to bear in mind the extensive case law which has entangled the seemingly simple words of s 323 in a legal thicket. Some of the important cases were brought together by Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133
    (21 August 2015)(Pereira), where he said at [81]:

    “The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq) [2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40].”

  3. Bearing in mind these principles, and that the appellant bears the onus of proof on the issue, the panel concluded that the worker’s intermittent complaints of back pain over a long period of time constituted a relevant pre-existing condition. While it is possible that these complaints of low back pain were self-contained, soft tissue strains, in the context of the radiological evidence the panel concluded that they were more likely a manifestation of the respondent’s disc pathology at L5/S1.

  4. In reaching this conclusion, the panel chose to rely primarily on the medical records and the radiological evidence as the respondent’s evidence, unsurprisingly given the dates of a number of his prior complaints of back pain, is not reliable. The MRI of 7 August 2014 is reported as demonstrating a degenerative disc at L5-S1 with a loss of disc height and a foraminal disc herniation compressing the left S1 nerve root.

  5. While the panel did not accept the way in which Dr Van Gelder apportioned WPI, both the history and the radiological evidence  suggests that his diagnosis of degenerative disc disease at L5/S1 is compelling. The panel, therefore, accepts that the respondent worker had a pre-existing condition at L5/S1 which contributed to his disc injury at that level on
    24 July 2014 and which increased the level of impairment which he suffered as a result of the injury.

  6. In reassessing the quantum of the deduction to be made pursuant to section 323 of the 1998 Act, the panel noted that the respondent’s previous episodes of back pain had been transitory. As he submitted, it is evident that he performed heavy work for the respondent for several years prior to the injury. But for the injury, he may have continued to perform physical work indefinitely. There can be little doubt that the injury was the most profound cause of his current impairment.

  7. The panel considered the appellant’s submission that separate deductions should be made in respect of each of the previous injuries. It concluded there was no logical basis for that approach to s 323. It is not evident that any of the individual injuries had lasting effect or that any of them standing alone contributed to an increased level of impairment. Cumulatively, however, they evidence pre-existing degenerative disc disease which made the applicant vulnerable to the injury on 24 July 2014 and aggravated the effects of that injury.

  8. The panel concluded that as it was difficult to assess the contribution of the pre-existing condition namely the degenerative disc disease to the injury and to the respondent’s impairment, it was appropriate to invoke s 323 (2) of the 1998 Act. The medical practitioners on the panel took the view that a deduction of 1/10th was in no way inconsistent with the available evidence. To reach any other conclusion would be to engage in speculation contrary to the reasoning in Pereira and other cases.

  9. A deduction of 1/10th from the accepted impairment of 27% of the lumbar spine gives rise to a WPI of 24%. To this must be added the 1% or scarring.

  10. For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 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:

W2993/21

Applicant:

George Thornton

Respondent:

Coles Supermarkets Australia 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 Dr 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 NSW workers compensation guidelines

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

20 July 2014

Ch4 p24

He 384

T 15-03

27

1/10th

24%

Scarring

P74

T14.1

1

1%

Total % WPI (the Combined Table values of all sub-totals)            

 25%WPI

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

11

Statutory Material Cited

0

Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Ryder v Sundance Bakehouse [2015] NSWSC 526