Craigie v Faircloth & Reynolds Pty Ltd
[2021] NSWPICMP 204
•1 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWPICMP 204 |
| APPELLANT: | Jack Elvin Craigie |
| RESPONDENT: | Faircloth & Reynolds Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr Brian Noll Dr James Bodel |
| DATE OF DECISION: | 1 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of demonstrable error and application of incorrect criteria with respect to deduction of 2/5 pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); injury accrued by gradual process which commenced in October 2007 with a deemed date of injury in 2014; appellant submitted that Approved Medical Specialist (10 December 2020) did not consider or report the date at which he considered the existence of a pre-existing condition or abnormality constituting a failure to give reasons; further ground alleged with respect to assessment of 2% whole person impairment (WPI) in respect of activities of daily living; Held - the injury started to accrue in October 2007; no evidence of previous injury or pre-existing condition or abnormality at that time; Cullen v Woodbrae Holdings Pty Ltd applied; assessment of 2% WPI in respect of activities of daily living was available on the evidence, including the history reported by the appellant upon examination; error demonstrated in respect of section 323 issue; Medical Assessment Certificate revoked; finding of no previous injury, pre-existing condition or abnormality. |
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 an Approved Medical Specialist. The medical dispute was assessed by
Dr Murray Hyde Page, who was at the time of assessment, appointed as an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 10 December 2020. Dr Hyde Page, and will be referred to in these reasons as “the AMS”.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 grounds 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).
RELEVANT FACTUAL BACKGROUND
The appellant, Mr Craigie, suffered an injury to his cervical spine in the course of his employment as a labourer with the respondent, Faircloth & Reynolds Pty Ltd. The injury arose due to the nature and conditions of Mr Craigie’s employment from 8 October 2007 and is deemed to have occurred on 9 September 2014.
A claim by Mr Craigie for primary psychological injury and injury to the lumbar spine was unsuccessful, but in subsequent proceedings, the Commission determined that Mr Craigie suffered from “a secondary psychological injury which arose as a consequence of, or secondary to, the injury to his cervical spine deemed to have occurred on 9 September 2014”[1].
[1] Certificate of Determination dated 11 February 2020 No. 5880/19
Mr Craigie was examined by Professor Ghabrial on 11 July 2018 at the request of
Mr Craigie’s solicitors for the purposes of a claim for lump-sum compensation.
Professor Ghabrial had previously examined Mr Craigie in 2016 in relation to injuries to the cervical spine and lumbar spine.Professor Ghabrial assessed Mr Craigie as suffering 15% whole person impairment (WPI) as a result of injury to the cervical spine. He added an additional 3% in respect of interference with activities of daily living to give a total assessment of 18% WPI.
A claim for lump-sum compensation was made in accordance with Professor Ghabrial’s report dated 11 July 2018. The insurer had Mr Craigie examined by an orthopaedic surgeon, Dr Anthony Smith, who saw Mr Craigie on 7 December 2018 and again on 29 November 2019. Dr Smith was of the opinion that Mr Craigie did not suffer any impairment as result of his employment and that any impairment was due to constitutional and age-related factors.
Mr Craigie’s representatives filed an Application to Resolve a Dispute in the then Workers Compensation Commission. The dispute was referred to the AMS, pursuant to consent orders which noted the date of injury: “9 September 2014 (deemed)-disease”. The body part to be assessed was the cervical spine.
The AMS examined Mr Craigie on 26 November 2020, following an earlier Telehealth phone consultation. The AMS assessed Mr Craigie as suffering 17% WPI including 2% WPI in respect of interference with activities of daily living. The AMS deducted one fifth pursuant to section 323 of the 1998 Act, yielding an assessment of 14% WPI after rounding, as a result of the subject injury.
Mr Craigie commenced the current appeal proceedings and a differently constituted appeal panel confirmed the MAC. Mr Craigie sought review of the decision of the appeal panel in the Supreme Court of New South Wales and an order was made quashing the decision of the appeal panel and remitting the matter to the President of the Personal Injury Commission for referral to a further appeal panel, differently constituted[2].
[2] Craigie v Faircloth & Reynolds Pty Ltd and others [2021] NSWSC 1211
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 sufficient information is available to the Panel to enable it to determine the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.
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 AMS fell into error in assessing a deduction of one fifth of the assessed impairment is due to a pre-existing condition when there was no evidence of any such condition. Further, the appellant submitted that the AMS had failed to give adequate reasons because he had failed to identify the point in time at which it was necessary to consider the existence of any pre-existing condition.
The appellant also submitted that the AMS had failed to correctly apply clause 4.35 of the Guidelines in assessing 2% WPI in respect of interference with activities of daily living.
In reply, the respondent submits that it was open on the evidence for the AMS to deduct one fifth pursuant to section 323 of the 1998 Act. On the evidence, assessment of 2% WPI in respect of activities of daily living was appropriate.
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[3] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[3] [2006] NSWCA 284
This appeal concerns assessment of impairment flowing from an injury which was acquired by a gradual process over the period of Mr Craigie’s employment from October 2007 and which was deemed to have occurred on 9 September 2014.
Deduction pursuant to section 323 of the 1998 Act
At paragraph 10a of the MAC the AMS stated: “I have concluded that Jack Craigie has 14% WPI as a consequence of the work injury to his cervical spine with deemed date of the 9 September 2014. He has now reached maximum medical improvement”. The AMS assessed Mr Craigie as within DRE III and assessed 15% WPI. The AMS added a further 2% in respect of interference with activities of daily living. From the total of 17% WPI the AMS deducted one fifth (3.4 %) to give a final assessment of 14% WPI after rounding.
In paragraph 11 of the MAC the AMS reported:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY:
a. “In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) 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.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing whole person impairment that results from the injury, being the matters taken into account in 10a and in the following ways:
(i) 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 (sic) and 2014, iand 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.
c. In my opinion the deductible proportion is one fifth (original emphasis) 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 that the AMS failed to give adequate reasons for deducting one fifth because, if the principles enunciated in Cullen v Woodbrae Holdings Pty Ltd[4] (Cullen) were correctly applied then the nature of injury was such as to have been gradually acquired since the commencement of employment in October 2007 and the appropriate point of time at which to consider the existence of a pre-existing condition was at the time that the work tasks started to give rise to injury, that is October 2007.
[4] [2015] NSWSC 1416
The Panel considers that the AMS correctly observed that the work tasks performed by
Mr Craigie contributed to the impairment but the AMS appears to treat the injury as one which occurred wholly due to activity on 9 September 2014.The earliest evidence of the presence of pathology is found in the radiology performed in 2014. Mr Craigie informed the AMS that he had developed increasing pain and stiffness in his neck in 2014.
The Panel accepts that the AMS appears to have failed to express a clear path of reasoning by omitting to correctly determine the appropriate date at which he was required to consider whether there was a previous injury or a pre-existing condition or abnormality. The 1998 Act requires the medical assessor to provide reasons [5]. In Wingfoot Australia Partners Pty Ltd v Kocak[6] the High Court considered the obligation to give reasons in respect of a Victorian Medical Panel whose role was analogous to that of a medical assessor or AMS. The High Court said (at [48]):
“What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”
[5] the requirement for a medical assessor [AMS] to give reasons is mandated by section 325 (2) (c) of the 1998 Act.
[6] [2013] HCA 43
The Panel is satisfied that error is established with respect to the deduction pursuant to section 323 of the 1998 Act. That error is the failure to consider and report the date at which the AMS considered it was appropriate to consider the existence of a previous injury or pre-existing condition or abnormality.
Activities of daily living
The AMS recorded the history provided by Mr Craigie:
“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.”
In explaining his calculations the AMS said “with the effect on his activities of daily living, he can do all personal care but has restrictions on indoor and outdoor tasks, I consider he has 2% WPI”[7].
[7] MAC paragraph 10 b.
The appellant submitted that the test was not whether Mr Craigie was able to perform tasks of personal care but whether he could do so without restriction and difficulty. The appellant noted the provisions of clauses 4.33 to 4.36 of the Guidelines.
Professor Ghabrial, whose reports were in evidence, said:
“The whole person impairment regarding activities of daily living is assessed at 3% as he has been advised to avoid heavy lifting, excessive bending and excessive twisting as a result of their (sic) injuries. That advice itself will prevent him from performing home activities, garden/yard maintenance, recreational activities and sports activities. Hence, that would support the 3% whole person impairment regarding ADL.”[8]
[8] Further report 11 July 2018.
In his statement dated 31 August 2020 Mr Craigie listed daily activities that he found difficult. These included:
a) “standing for longer than 30 minutes;
b) sitting or driving for longer than 10 minutes or if I have to turn my head to look behind me;
c) domestic chores such as mowing the lawn, whipper snipping, car washing, cleaning and general physical household maintenance; and
d) personal care tasks such as showering, wiping my bottom, getting dressed and undressed such as putting my shoes and socks on.”
The Guidelines relevantly provide:
“4.33 Impact of ADL Tables 15-3, 15-4 and 15-5 of AMA 5 give impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self reporting, but is an assessment based on all clinical findings and other reports.
4.34 The following diagram should be used as a guide to determine whether 0% 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range[9]. This is only added if there is a difference in activity level is recorded and compare to the worker’s status prior to the injury. [The diagram delineates three areas of function noting “yard/garden, sport/recreation 1%”, “home care 2%” and “self-care 3%”].
4.35 The diagram is to be interpreted as follows:
Increase base impairment by:
·3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
·2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
·1% WPI for those able to cope with the above, unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
[9] The bottom of the range is found by reference to Table 15-5 of AMA 5 and, for DRE III, it is 15%.
The Panel accepts that the AMS was entitled to rely on the account given to him on examination which was to the effect that Mr Craigie was able to perform “all his own personal care with dressing, showering and toileting”.
Professor Ghabrial felt that restrictions on heavy lifting, excessive bending and excessive twisting would prevent Mr Craigie from performing “home activities, garden/yard maintenance, recreational activities and sports activities” but he does not appear to include personal care activities, although he assessed 3% WPI in respect of interference with activities of daily living. The Panel does not accept that restrictions on heavy lifting, excessive bending and excessive twisting would be likely to interfere with personal care activities.
Paragraph 4.33 notes that the assessment is to be based on all the clinical findings and other reports and paragraph 4.34 notes that the diagram provided is to be used as a guide only.
The appellant has pointed to the absence of any reference to paragraphs 4.33 to 4.35 in the reasons provided by the AMS. The Panel is of the view that, although the AMS has not directly referred to those paragraphs, he has correctly applied Table 15-3 of AMA5 and the relevant provisions of the Guidelines. The reasons provided by the AMS, when read as a whole, include the history of ability to manage personal care recorded by the AMS on examination and the interference with domestic, social and recreational tasks. The AMS has noted the opinion of Professor Ghabrial, although disagreeing with that opinion.
The Panel is of the view that it was open to the AMS on the evidence before him, to accept that Mr Craigie was able to manage personal care but was restricted with regard to household tasks and sporting and recreational activities and was therefore appropriately assessed as falling within 2% WPI with respect to interference with activities of daily living.
The Panel is satisfied that no error or application of incorrect criteria is demonstrated with respect to the assessment of activities of daily living.
Reassessment
The appellant has established demonstrable error with respect to the deduction of one fifth pursuant to section 323 of the 1998 Act and the Panel has therefore to consider the appropriate assessment in the light of the available evidence.
The AMS assessed Mr Craigie as falling within DRE III and accordingly entitled to an assessment of 15% WPI. No complaint or submissions address that assessment by the AMS. The Panel has reviewed the evidence and is satisfied that this part of the assessment was appropriate.
The Panel has considered the nature of the injury which was one acquired by a gradual process over a period of years commencing October 2007 due to the manual work tasks performed by Mr Craigie.
In accordance with Cullen, the Panel considers that it is appropriate to consider whether a pre-existing condition or abnormality existed prior to commencement of employment in October 2007. There is no suggestion of any pre-existing injury at that time.
The AMS noted:
“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 no significant neck trouble in the past. His had no subsequent neck injury of any sort. His had no other injuries.”
The Panel accepts that this is an accurate summary of the history based on Mr Craigie’s statements and the medical reports which establish that the first radiological investigations were not undertaken until 2014.
As noted by the AMS, the CT scan of the cervical spine on 4 July 2018 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”.
The Panel could not be satisfied that there is evidence which establishes pathology (a pre-existing condition or abnormality) in the cervical spine prior to October 2007 which contributes to the assessed level of impairment. On the evidence of his statements and medical reports, Mr Craigie was able to perform heavy labouring duties with problems only becoming manifest some years after he commenced performing those workplace tasks.
The Panel is satisfied that there is no evidence which could establish the existence of a
pre-existing condition or abnormality which contributes to the level of impairment assessed. Accordingly there should be no deduction pursuant to section 323 of the 1998 Act.For the reasons noted above, the Panel is satisfied that it is appropriate to assess interference with activities of daily living as warranting the addition of a further 2% WPI. The Panel accepts that the descriptor in paragraph 4.34, “the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances” is appropriate, warranting the addition of a further 2% WPI. Accordingly, the Panel assesses Mr Craigie as suffering 17% WPI as a result of injury to cervical spine deemed to have occurred on 9 September 2014.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 December 2020 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
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 Murray Hyde Page 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. Cervical spine | 9/09/14 (deemed) | Chapter 4, | Paragraph 15.3, page 381. paragraph 15.6, Table 15-5 page 392 | 17% | nil | 17% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
Mr William Dalley
Member
Dr Brian Noll
Medical Assessor
Dr James Bodel
Medical Assessor
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