Craigie v Faircloth & Reynolds Pty Limited
[2021] NSWPICMP 30
•19 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Craigie v Faircloth & Reynolds Pty Limited [2021] NSWPICMP 30 |
| APPELLANT: | Jack Elvin Craigie |
| RESPONDENT: | Faircloth & Reynolds Pty Limited |
| APPEAL PANEL: | Member Deborah Moore Dr J Brian Stephenson Dr Drew Dixon |
| DATE OF DECISION: | 19 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in two respects; firstly in making a deduction pursuant to section 323 of the 1998 Act; secondly the MA erred in his calculation of the appropriate uplift in respect of his activities of daily living; Held- the evidence supported the findings made and assessment by the Medical Assessor; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 December 2020 Jack Elvin Craigie lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Murray Hyde Page, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 December 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 WorkCover Medical Assessment Guidelines 2006.
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 the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor (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 two respects. Firstly, in making a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act) and secondly, erred in his calculation of the appropriate uplift in respect of his activities of daily living (ADL’s).
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 cervical spine resulting from a deemed date of injury of 9 September 2014.
The MA obtained the following history:
“Mr Craigie states that he had slow onset of neck pain and stiffness over a couple of years in the lead up to September 2014. He attributes this to the nature of his work as a factory worker, working in an air conditioner factory in Coffs Harbour. His job was to manufacture the air conditioner ducts and join them together, including welding and working in confined spaces. He had to lift up to thirty kilograms or more.
In 2014, he developed increasing pain and stiffness in his neck, to the extent that he saw his GP, Dr Lin Ye for the first time on the 9 September 2014. Although the worst of his pain was in the neck, he was getting a lot of headaches, as well as some thoracolumbar back pain. He started to develop symptoms down his right arm as well. He had difficulty sleeping.
Dr Ye organised investigation and treatment. He initially had time off work, pain medication and some physiotherapy. In 2014, he saw a Neurosurgeon who visits Coffs Harbour, Dr Behzad Eftekhar but he said that surgery was not warranted. By this time, he had had scans done of his neck.
He tried to return to work on light duties for a couple of months, but his symptoms did not improve, and he eventually stopped work and has never worked again.
In 2016, he came under the care of a Pain Management Specialist, Dr Shaun Clarke in Coffs Harbour. He did have injections into the neck on one occasion, but these really did not help, and overall Dr Clarke s treatment did not make any difference.
He obtained a second opinion from another Neurosurgeon, Dr John Christie in 2019 but decided not to go ahead with any surgery. It appears that Dr Christie offered him some decompression of the nerve roots on the right side to help settle the radicular symptoms going down into his right hand.”
Present symptoms were described as follows:
“He has persistent neck pain and stiffness. He gets a lot of headaches. He has pain radiating down his arms, worse on the right than left. In his right hand, he gets pins and needles and tingling, especially in his middle and ring fingers.
He still gets some pain in his back, which he attributes to having to twist his body all the time because of his stiff neck. He finds that fully elevating his shoulders can aggravate his neck pain.
With the ongoing pain, he has significant sleep disturbance. He finds it difficult doing moderate to heavy activity.”
The MA added:
“As I have noted earlier in the report, he had gradual onset of neck pain and stiffness over a couple of years in the lead up to the deemed date of injury of September 2014. However, he cannot recall any specific injury of any sort, either at or away from work. He had had no significant neck trouble in the past. He has had no subsequent neck injury of any sort. He has had no other injuries.”
As regards ADL’s, the MA said:
“Jack Craigie is 61 years of age, married and lives with his wife. He has two grown children who do not live at home. He does not smoke or drink alcohol. He has no particular sports, hobbies or interests. He is right handed.
He can drive satisfactorily, but only for short distances due to his neck pain and stiffness. He finds it difficult to look over his shoulder. He can do all his own personal care with dressing, showering and toileting. However, he has restrictions with both indoor and outdoor domestic tasks due to his neck condition.”
The MA then set out in detail his findings on physical examination before summarising the radiological material he had before him as follows:
“Today, I saw a CT scan of his cervical spine from the 4 July 2018. These showed generalised moderate to severe degenerative disc disease of the cervical spine, most significant at C3/4, C4/5, C5/6 and C6/7. There is evidence of bilateral nerve root compression associated with this.
I note that he had an MRI scan of the cervical spine on the 8 November 2019 that also shows severe generalised degenerative disc disease of the cervical spine and possible central canal stenosis at C3/4, C4/5 and C5/6. There was foraminal stenosis at multiple levels, most marked at C5/6 and C6/7 on both sides.
An MRI scan of the cervical spine on the 30 September 2014 showed the generalised degenerative disc disease of the cervical spine that was quite advanced. There was bilateral neural foraminal narrowing at C4/5, C3/4 and C5/6.
An x-ray of the cervical spine on the 25 September 2014 showed that he already had severe degenerative disc disease of the cervical spine when he first presented. There were multiple levels of cervical disc disease and exit foraminal narrowing.
He had a bone scan performed on the 28 December 2016. This showed the presence of severe inflammatory arthropathy involving the left C3/4 facet joint which exhibited intense increased activity. Milder uptake was noted at the right C3/4 and right C7/T1 facet joints.
Overall, the x-ray, CT and MRI scans of the cervical spine show that he has severe generalised degenerative disc disease of the cervical spine with exit foraminal narrowing that was present at the time of his presentation in September 2014 and they have progressed further over the last few years.”
The MA summarised the injury as follows:
“Jack Craigie, who is 61 years of age, presents with evidence of severe degenerative disc disease of the cervical spine that was present in September 2014, the deemed date of his injury. This had been coming on over a period of many years and it would appear that his factory work activity, making air conditioning ducts, aggravated this underlying condition so that he eventually went off work. The neck condition has not settled, despite not working and he has also developed radicular symptoms down to his right hand, where on today s examination he has radiculopathy that appears to involve the C7 and adjacent nerve roots. This fits the findings on his MRI and CT scans, where there is bilateral foraminal stenosis, particularly in the lower cervical spine, caused by his severe cervical spondylitic or degenerative disc disease condition.”
The MA assessed 17% WPI from which he deducted one-fifth, leaving a total WPI of 14%.
He explained his calculations as follows:
“Mr Craigie, on today s assessment, has evidence of radiculopathy in his right upper limb involving the cervical spine. With reference to WorkCover Guides 2016 page 27 paragraph 4.27, radiculopathy is confirmed by asymmetry of reflexes, muscle atrophy and sensory changes. There appears to be C7 nerve root radiculopathy and possibly C6 as well. With reference to AMA Guides 5th Edition Table 15-5 page 392, he has DRE Category III cervical spine injury or complaint that gives a range of WPI of 15% to 18%. With the effect on his activities of daily living, where he can do all personal care but he has restrictions on indoor and outdoor tasks, I consider he has 2% WPI. When this is taken into account, he therefore has 17% WPI.
I need to take into account that he has pre-existing long standing cervical spondylitis, that was evident on his initial MRI scan in September 2014. He also gave a history of having had neck pain in the past. Overall, I have concluded that he has one fifth level of WPI due to this pre-existent symptomatic condition. One fifth of 17% is 3.4% WPI. When this is subtracted from 17%, he therefore has 13.6% WPI. This rounds up to 14% WPI.
Therefore, his overall WPI as a consequence of the work injury is 14%.”
The MA then turned to consider other medical reports and evidence. Relevant to the issue in dispute, he said:
“He saw Dr Behzad Eftelkhar, a Neurosurgeon in October 2014. He noted that, as well as having neck pain and stiffness, there was tingling and pins and needles in the tips of the fingers without dermatomal pattern. He noted the significant degenerative changes in the cervical spine, worst at C5/6 and C3/4…
He saw a Spinal Orthopaedic Surgeon, Dr Joe Ghabrial, for an opinion in April 2016 and July 2018. Dr Ghabrial concluded Mr Craigie had sustained injuries to his neck and back during the course of his employment on the 9 September 2014, with an aggravation on the 20 July 2015. He felt that there was evidence of right upper limb radiculopathy. In 2016 and 2018, Dr Ghabrial concluded that he had DRE Category III cervical spine injury as there was right upper limb radiculopathy. He concluded there was 3% WPI for effect on activities of daily living and that he had 18% WPI overall. He did not consider there was any deduction for any pre-existent injury or condition.
Dr Anthony Smith, Orthopaedic Surgeon, has a report in August 2020. He concluded that Mr Craigie has symptomatic spinal degenerative disease in the neck. He felt that the symptoms emanated from C5/6 and C6/7. Dr Smith concluded that he had either DRE Category I or DRE Category II cervical spine complaint depending on when he was being assessed. He was satisfied there was no radiculopathy and no dysmetria on examination. He felt that the spinal degenerative disease was completely unrelated to his employment. He felt it was purely due to the ageing process.
On today s assessment of Mr Craigie, I have taken a history of him having had neck symptoms prior to his deemed date of work injury in September 2014. It is clear from the original MRI scan and xrays, that he had long standing pre-existent cervical spondylitis that would explain these pre-existent conditions and the onset of his present right upper limb radiculopathy involving the C7 nerve root. I therefore agree with the report of Dr Joe Ghabrial that he has DRE Category III cervical spine complaint. However, I disagree with Dr Ghabrial as I consider a significant level of his WPI is due to this pre-existent condition. I disagree with Dr Anthony Smith that his cervical spine degenerative condition was completely unrelated to his employment.”
The MA concluded:
“Mr Craigie suffers from pre-existent symptomatic cervical spondylitis or cervical spine degenerative disc disease. This is determined by the fact that he had pre-existent history of neck pain and his MRI scan in September 2014 shows there was already severe degenerative disc disease of the lower cervical spine with nerve root entrapment.
The pre-existent long standing cervical spondylitis has become symptomatic during the course of his work at the factory making air conditioning ducting. He worked there between 2006 and 2014, and the neck pain and stiffness came on over a period of at least a couple of years in the lead up to September 2014, when he finally went off work and had the neck condition investigated. At the same time that he developed increasing neck pain, he developed radicular symptoms down his right arm.
On today s assessment, he has obvious wasting of his right upper limb that would have come on over a long period of time. He has reduced reflexes and sensory changes, indicating radiculopathy. This radiculopathy appears to have come on slowly as he developed increasing symptoms in his neck and right upper limb.
In my opinion the deductible proportion is one fifth for the following reasons:
(i) Due to the fact he has the underlying long standing cervical spondylitic condition showing right sided cervical nerve root entrapment, particularly at C7 and probably C6. These symptoms have come on over a period of years in his neck and right upper limb and no acute work injury and is more a result of the nature of his work making air conditioning ducting. During this time, his pre-existent condition has therefore had a significant influence on the onset of the present chronic neck and right upper limb symptoms associated with his radiculopathy.”
The appellant submits as follows:
(a) His deduction of 1/5th for a pre-existing condition in respect of the cervical spine was factually and legally incorrect.
(b) He failed to properly consider and apply s 323 of the 1998 Act or clauses 1.27 and 1.28 of the Guidelines.
(c) He applied a deduction for a pre-existing condition to the cervical spine where there was no evidence of any such pre-existing condition prior to the commencement of the Appellant's employment with the Respondent in 2007, contrary to the principles in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen).
(d) He failed to provide adequate reasons for the 1/5th s323 deduction in relation to the cervical spine.
(e) He failed to consider or apply clause 4.35 of the Guidelines in his assessment of ADL’s.
(f) He failed to consider probative evidence as was contained in the Appellant's fourth statement at with respect to his restrictions and reduced capacity to perform personal care tasks, in assessing the effects of his injuries on his ADL’s.
Dealing firstly with the deduction issue, the appellant submits that the MA’s reasons were “limited” and that he did not make any reference to or take into account the specific requirements of s323. Further, he did not have due regard to the Guidelines.
More importantly, “the MA does not make any finding that the appellant's cervical spondylitis disease pre-existed the commencement of his employment…pleaded as commencing from 8 October 2007.”
The appellant continued:
“The deemed date of injury itself was in respect of a nature and conditions claim, which had been the subject of three prior WCC Awards, for the entire period of the Appellant's employment from 8 October 2007 to July 2015.
An examination of the Appellant's GP's clinical notes and records…do not disclose any history of any cervical spine disease condition pre-existing the commencement of employment.
At page 3 the MA importantly notes ‘he had no significant neck trouble in the past’. Indeed the MA at page 6… acknowledges he has read the GP's notes and confirms that the Appellant first consulted Dr Lin Ye on 9 September 2014 in relation to his cervical spine injury.
The MA does not appear to have appreciated this distinction and has treated the date of injury like a frank injury. This was 7 years after the Appellant's employment commenced and he had been carrying out heavy manual work for the Respondent throughout that period.
The MA should only have made a s323 deduction if he could be satisfied that there was a pre-existing condition within the meaning of s323, prior to the commencement of the Applicant's employment in 2007 (Cullen).”
To begin with, we accept the principles set out in Cullen to which the appellant refers.
Having said that, the terms of s323 (1) provide that: “In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury… or that is due to any pre-existing condition or abnormality.”
In other words, it is the proportion of the impairment due to any pre-existing condition that must be considered by an MA, not simply the nature, extent of and onset of symptoms.
Irrespective of whether the appellant “had no significant neck trouble in the past” an MA must look at the contribution to the impairment resulting from any pre-existing condition.
We do not accept that the MA “treated the date of injury like a frank injury.” He specifically said that:
“These symptoms have come on over a period of years… and is [sic] more a result of the nature of his work. During this time, his pre-existent condition has therefore had a significant influence on the onset of the present chronic neck and right upper limb symptoms…”
In our view it is clear that the MA was fully aware of the nature of the claim. His task was to assess impairment resulting from the accepted ‘disease’ injury arising out of his employment.
The MA diagnosed severe degenerative disc disease of the cervical spine which was pre-existing and evident on the initial MRI scan in September 2014.
As the respondent correctly points out:
“It is immaterial whether or not that condition was symptomatic prior to the alleged workplace injury. The respondent submits that the MA has properly identified the reasons why he thought that the impairment was in part due to a pre-existing condition even if asymptomatic…The radiology clearly demonstrates a significant pre-existing cervical condition and therefore the application of s323 administered by the MA was correct. There is no reason to disturb a discretionary finding by the AMS.”
Section 323 does not require that a pre-existing condition be symptomatic. It requires a pre-existing condition existed and that condition contributed to an applicant’s permanent impairment.
There was ample evidence before the MA which he clearly considered demonstrated that there was substantial pre-existing pathology and changes that contributed to the appellant’s impairment.
As the Court of Appeal has determined in the case of Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254, if a pre-existing condition contributes to permanent impairment, a deduction is required even though the pre-existing condition may have been asymptomatic prior to the injury.
We agree with the respondent’s submission that:
“the extent of impairment was a matter wholly within the jurisdiction of the MA…there was no error in the AMS’ methodology or application of the relevant criteria and that the extent of his deduction therefore ought not to be the subject of challenge simply because the appellant had a differing view.”
In summary, the appellant needs to demonstrate that the MA made a demonstrable error within the meaning of s327.
In our view, he was entitled to make a one-fifth deduction which was consistent with the totality of the evidence, and we cannot see that he has erred.
Turning now to the issue of ADL’s, the appellant makes the following submissions:
“The MA recorded the appellant had restrictions doing domestic chores however he merely records that the appellant can do all his personal care with dressing showering and toileting. Respectfully, that is not the relevant test and the mere fact that a person can do such tasks s does not mean they can do them without restriction and difficulty.
The MA does not ask the relevant question as to whether the appellant's capacity to undertake personal care tasks has been affected as required by clause 4.35 of the Guidelines, which was a clear demonstrable error.
Further he makes no specific reference at all to the appellant's statement of evidence at ARD 13 paragraph 8 where the appellant clearly describes the difficulties he has in carrying out these personal care tasks because of his neck restrictions.
The appellant's physical restrictions from movement of his cervical spine are corroborated by Professor Ghabrial and his physiotherapist Andrew Lane.
The appellant's statement was critical evidence which the MA should have considered and referred to in making his assessment of ADL’s.
Alternatively if he did consider that statement, he fails to provide any reasons as to why he did not accept that evidence in his reasons particularly where he has otherwise clearly accepted the Appellant's evidence…
Had that evidence properly been considered the correct allowance for ADL was 3%, as the Appellant's self-care had also been affected by his injuries.”
The MA obtained a history at the time of his assessment that: “He can do all his own personal care with dressing, showering and toileting.”
Three per cent WPI is only applicable if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected.
Two per cent WPI is applicable if the worker can manage personal care, but is restricted with the usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances.
In his initial statement dated 10 June 2016 the appellant made no reference to difficulties with self-care.
In a further statement dated 30 April 2019 the appellant mentioned that “I take hot showers” for pain relief, but there were no other comments in relation to self-care.
No reference was made to any personal difficulties in a further statement dated 7 November 2019.
In his final statement dated 31 August 2020, the appellant said:
“Because of the restrictions and pain in my neck I have difficulties performing…personal care tasks such as showering, wiping my bottom, getting dressed and undressed such as putting my shoes and socks on.”
The MA assessed the appellant on 25 and 26 November 2020, three months after his last statement referred to above.
The MA did indeed state that: “I found Mr Craigie to be straight forward in his answers, both with the history taken and physical examination, there appeared to be no significant embellishment or exaggeration.”
In making his assessment, the MA is required to assess impairment following “clinical assessment of the claimant as they present on the day…” There is no requirement that an MA must address each and every piece of evidence before him.
There is nothing to suggest that the MA did not take into account all of the evidence before him.
In our view, he took a reasonably detailed history of the appellant’s difficulties with ADL’s when he said:
“He can drive satisfactorily, but only for short distances due to his neck pain and stiffness. He finds it difficult to look over his shoulder. He can do all his own personal care with dressing, showering and toileting. However, he has restrictions with both indoor and outdoor domestic tasks due to his neck condition.”
On the face of it, this does seem at odds with the appellant’s statement in August 2020 but as we said, there is no reason for us not to accept the history given by the appellant at the time of his assessment.
It may be that the appellant had improved somewhat in terms of his ADL’s by the time he saw the MA, but accepting him as a reliable and truthful witness, as the MA did, we accept what he told the MA on the day of his assessment as accurate.
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v State of New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense…”
We are satisfied that the findings of the MA were not “glaringly improbable” nor did the MAC demonstrate that the MA “was unaware of significant factual matters” or that there was any evidence of an “unsupportable reasoning process.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 December 2020 should be confirmed.
Deborah Moore
Member
Dr J Brian Stephenson
Medical Assessor
Dr Drew Dixon
Medical Assessor
19 March 2021
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