Cumberland City Council v Cummings
[2021] NSWPICMP 113
•5 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cumberland City Council v Cummings [2021] NSWPICMP 113 |
| APPELLANT: | Cumberland City Council |
| RESPONDENT: | Mark Cummings |
| APPEAL PANEL: | Member Deborah Moore Dr Mark Burns Dr Brian Noll |
| DATE OF DECISION: | 5 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant submitted that a section 323 deduction should have been made because the description of the ‘injury’ was described as an aggravation of an underlying condition; also the Medical Assessor (MA) obtained an incorrect history as to the period of employment; Held- the incorrect history taken by the Medical Assessor as to the period of service would not in itself constitute a reason for making or not making a section 323 deduction; the error is minor, non-contentious and easily able to be rectified and is not an error of a kind that is likely to alter the actual impairment assessed by the MA; The MA did not err in failing to make a deduction because there was no evidence to suggest any pre-existing symptomatic disorder; the assessment must have regard to the evidence as to the ‘actual consequences’ of any pre-existing condition; Cole v Wenaline Pty Ltd and other authorities considered; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 March 2021 Cumberland City Council lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 22 February 2021.
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 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.
The appellant submits that the MA should have made a deduction pursuant to s 323 of the 1998 Act.
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 respondent 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 11 April 2018.
The MA obtained the following history:
“Mr Cummings informs me that he started working for the Council in 2013, initially on a casual basis and then on a full -time basis. As noted, he was initially in the Parks Department, and then transferred to the Garbage Department. On specific questioning Mr Cummings cannot recall having developed any specific injury to his neck, shoulder or right arm, but the work was very heavy at times, shifting bins from Point A to Point B where they were picked up by the truck, and he says that at times the bins could weigh up to 300kg. Understandably they worked very rapidly.
On specific questioning Mr Cummings notes that he first felt a ‘knot in my shoulder blades on both sides’, with these symptoms having come on about 4 years ago. Soon after this he became aware of significant numbness in his right arm extending down into the fingers of his right hand. He also developed neck discomfort but the main problem it seems was with his right arm. He is very much better at the present time following his surgery.
I note that he came to surgery on 19 July 2018 being an anterior cervical decompression and fusion at the C6/7 level.
Post-operatively he said he had some physiotherapy and he did have ‘heavy stuff’ initially for the pain and was also put onto antidepressants.
At the moment he is having Thai massage once a week but no other particular treatment apart from his antidepressants.”
Present symptoms were described as follows:
“Mr Cummings was having fairly significant symptoms prior to his surgery, mainly in relation to his right arm and also some discomfort in his neck and scapular region. He feels that all of his symptoms were related and could go as high as 6/10.
He says that after his operation his arm symptoms have settled completely, and he does still get occasional discomfort in his neck region which feels ‘tight’, and every now and then he gets a sharp shooting pain on the left side of his neck which only lasts for a split second. He describes these being ‘zaps’ and he gets a few of these a day.”
The MA added: “Mr Cummings did not have any problems with his neck or his right arm prior to the onset of his symptoms some 4 years ago.”
As regards his social activities and activities of daily living, the MA said:
“Mr Cummings informs me that he was very active prior to the onset of his symptoms and he would go skateboarding and surfing, but he would be a bit scared to do these activities at the present time. He has no particular problems with walking, driving or with housework or shopping, and in fact is very happy with the result of his surgery.”
After documenting his findings on physical examination, the MA noted: “Mr Cummings did not have any investigations with him today, but I note from the reports forwarded to me that an MRI of his cervical spine on 6 April 2018 showed spondylosis with C5/6 an C6/7 foraminal stenosis.”
In summarising the injuries and diagnoses, the MA said:
“Mr Cummings developed symptoms in his neck and right arm very suggestive of neurological involvement (that is, radiculopathy), and was having significant symptoms prior to his operation and has had a very satisfactory result following the surgery with the symptoms in his right arm having settled completely and only intermittent discomfort in his cervical region.
In my opinion, the nature and conditions of his work with Cumberland Council over the years, which was very heavy at times, would certainly be regarded as the cause of the development of his symptoms and the need for surgery.”
The MA assessed 26% WPI.
When asked “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied “No.”
The MA then turned to comment on the other medical opinions, adding:
“I note the reports of Dr F Machart, orthopaedic surgeon of 13 May 2020, placing Mr Cummings in DRE Category IV of his cervical spine with 29% WPI (this figure includes radiculopathy, which is no longer present), but then making a four-fifths deduction, as he felt there was doubt as to whether his symptoms had been aggravated at all by the nature and conditions of his employment.
Please note that despite the multilevel nature of the changes on x-ray, he only had one level operated on which cured his symptoms. In my opinion then I would not make any deduction for pre-existing condition as suggested above.
There are reports of A/Professor N Hope, orthopaedic surgeon of 25 June 2019 who notes that although Mr Cummings did have cervical spondylosis which was pre-existing, it was not symptomatic, had not been investigated nor had it been treated. He felt it was therefore ‘largely irrelevant’. He noted that Mr Cummings had had a successful C7 fusion suggesting 27% WPI and not making any deduction. As noted my slight difference from A/Professor Hope’s figures is that I have awarded 1% for ADLS where he has awarded 2%.”
As stated earlier, the appellant submits that the MA erred by failing to make a s 323 deduction where the evidence suggested a deduction was appropriate.
The appellant notes that the period of employment relied upon by the respondent was from November 2017 to 19 March 2018.
The MA recorded that the respondent commenced work with the appellant in 2013, and appears to have noted the period of service as being from 2013 to 2019.
The respondent concedes that the MA incorrectly recorded the period of service. The date of injury as pleaded (and not in dispute) for the purposes of this claim, was November 2017 to 19 March 2018.
The appellant submits that this error is significant because the referral, in accordance with the Consent Orders, noted the injury was by way of “an aggravation of constitutional degenerative spondylosis of the cervical spine.”
In short, the pleaded causative ‘nature and conditions’ of employment was only over a period of about 4.5 months, not “over the years”.
The appellant then refers to material in its Reply which included statements as to the nature of the respondent’s duties which it submits were not as arduous as the respondent claimed.
The appellant continued its submissions as follows:
“In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz) Basten JA, with whom the other members of the Court agreed, said in relation to section 323: ‘The principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.’
The evidence available to the MA should have led to a deduction under section 323 for the following reasons:
(a)Consent orders were made in the proceedings which determined that the Respondent's ‘injury is by way of an aggravation of constitutional degenerative spondylosis of the cervical spine.’
In Unilever Australia (Holdings) Pty Ltd v Bisson, the AMS assessed the worker at 20% WPI following a partial knee replacement and made no section 323 deduction. In that case, similar to the current matter, the arbitrator had entered prior consent orders and findings which provided that the injury was by way of aggravation of a pre-existing disease condition. In Unilever the Medical Appeal Panel held that the finding by the AMS that there was no prior problem was inconsistent with the consent findings and a matter of liability… In Unilever the MAC was revoked and a 10% deduction was made pursuant to section 323 of the 1998 Act because the failure to apply any deduction was inconsistent with the consent finding that the injury consisted in the 'aggravation of a pre-existing disease'.
The appellant submits the same error applies to this MAC, given that the injury was found to be an aggravation of disease injury. A deduction should have been made under section 323 for aggravation of constitutional degenerative spondylosis of the cervical spine.
(b)The MA recorded a history of the onset of symptoms which pre-dated the pleaded causative period of employment from November 2017 to 19 March 2018. He incorrectly assumed that those symptoms resulted from the pleaded injury…[he] concluded that ‘the nature and conditions of his work with Cumberland Council over the years, which was very heavy at times, would certainly be regarded as the cause of the development of his symptoms and the need for surgery’. The pleaded causative 'nature and conditions'/aggravation of disease injury was in fact only over about 4.5 months, not ‘over the years’. This represents an incorrect assumption of fact on the part of the MA which has influenced his approach to the deductible proportion issue because he has misunderstood and mischaracterised the injury and the period of the 'nature and conditions/aggravation of disease' injury. It is submitted that this incorrect assumption of fact constituted a demonstrable error.
(c)The MA records the worker first felt pain in his shoulder blades on both sides with symptoms having come on about four years ago. However, the evidence is that the only work carried out by the Respondent which he describes as heavy (primarily the moving of bins) did not commence until November 2017. That is a period less than four years before the MAC. Based on that history the Respondent was suffering symptoms prior to undertaking the work which, he claims, resulted in his neck condition. On that basis, a deduction under section 323 should clearly have been made.
(d)The MA refers to cervical MRI dated 6 April 2018 showing ‘spondylosis with C5/6 an (sic) C6/7 foraminal stenosis’. Spondylosis is a degenerative condition which develops over time. Foraminal stenosis is also a degenerative condition… He then concludes that no deduction should be made under section 323 because ‘despite the multilevel nature of the changes on X-Ray, he only had one level operated on which cured his symptoms.’
The Appellant submits the radiological findings are consistent with pre-existing degenerative condition in the Respondent's cervical spine the existence of which contributed to the requirement for him to undergo spinal surgery and, accordingly, a deduction under section 323 should have been made.”
In reply, the respondent submits:
“The injury description as variously recorded in the [documents]…and other supporting material generally, relates to ‘heavy lifting’. The mechanism of injury recorded by the MA is consistent with the history of injury and we note the MA records a history of ‘heavy lifting’ as the relevant cause of injury.
The error [as to the period of service] recorded by the MA is minor, non- contentious and easily able to be rectified. Furthermore, it is not an error of a kind that is likely to alter the actual impairment assessed by an MA.
The incorrect recording of the worker’s period of service by the MA does not render [his] application of section 323 invalid. The asserted ‘mischaracterisation of the injury’ is not of substance and the method by which the injured worker sustained injury remains undisputed…
It does not follow that minor factual errors in the recorded history of an MA warrant an alteration to the deduction pursuant to section 323…each matter must be considered on its own merits…
The position put by the appellant fails to distinguish between an ‘injury’ and ‘impairment’ and seeks to assert that they are one and the same thing…
It was open to an MA to conclude that there was no basis for a deduction…and that the injury and need for surgery was directly causally related to the applicant’s employment duties.
In Fire & Rescue (NSW) v Clinen …it was held that it cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment …
In Rider v Sundance Bakehouse …it was held there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment…
[Other] relevant considerations for the MA [were]:
a.There are no records of imaging studies to the cervical spine prior to the injury sustained by the applicant.
b.There is no record of prior consultation with a treating specialist.
c.Clinical records do not reveal any evidence of prior symptoms or complaints affecting the cervical spine.
d.The injured worker was born on 25 November 1973.”
The Panel has carefully considered the submissions by both parties.
In our view, the incorrect history taken by the MA as to the period of service would not in itself constitute a reason for making or not making a s 323 deduction.
We agree with the respondent that the error is “minor, non- contentious and easily able to be rectified [and] is not an error of a kind that is likely to alter the actual impairment assessed by an MA.”
Of more significance in our view is the imaging study evidence, namely the MRI scan dated 6 April 2018, which was reported to show the following:
“There are degenerative intervertebral disc space changes in the cervical spine most marked at the C5/C6 and C6/C7 levels. At C6/C7 there are posterior osteophytes disc ridge complex with indentation of the anterior aspect of the canal sack. There is neural foraminal stenosis on both sides due to uncovertebral osteophytosis and facet joint hypertrophic changes. These changes are most marked on the right and there appears to be a compression of the right C7 nerve root. Similar changes are reported at the C5/C6 level.”
The MRI scan was taken shortly after the reported injury, and in our view, there is no doubt that these changes would have been present prior to the period of employment the subject of this claim.
The degenerative changes at the C6/7 level are likely to have been a factor taken into account with regard to treatment including a surgical fusion at that level.
As the parties are clearly aware, the correct interpretation of s 323 has been the subject of numerous judicial reviews over the years. Both parties have made reference to authorities in support of their submissions.
Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole) is now the perennially cited authority on the construction and application of s323 where Schmidt J said:
“For a deduction to be made from what has been assessed to have been the level of impairment…a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, irrespective of outcome, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences (our emphasis) of the earlier injury, pre-existing condition or abnormality…”
Conversely, as the appellant points out, Vitaz is authority for the proposition that “if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
In this case, we do not consider that the MA erred in failing to make a deduction for reasons that follow.
To begin with, there is no evidence to suggest any pre-existing symptomatic disorder. As we noted earlier, the assessment must have regard to the evidence as to the “actual consequences” of any pre-existing condition.
The appellant has focussed on the radiological material in support of its submission that a significant deduction ought to be made.
In the present case, the respondent confirmed to the MA that he did not experience any neck symptoms prior to the onset of symptoms in November 2017, and as he said, there is no evidence of any consultations or treatment for any such symptoms prior to the nominated injury.
In short, the “actual consequences” of the pre-existing condition, in this case, were “largely irrelevant” as the MA and A/Professor Hope concluded.
It is obvious that the respondent had pre-existing pathology. If there had been evidence of complaints of pain or other symptoms, we may have concluded that a deduction was required.
Each case must be considered having regard to its own particular facts. A failure to make a s323 deduction is not inconsistent with the description of the ‘injury’ being described as an aggravation of an underlying condition, as the respondent noted. “In the case of Fire & Rescue (NSW) v Clinen …it was held that it cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment…”
Unilever turned on its own particular facts.
The task of an MA is to assess impairment, not symptoms or disability. There is no hard evidence to suggest that the degenerative changes contributed to the impairment such that we cannot see any error by the MA.
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“The Appeal Panel accepted that intervention was only justified… 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 (our emphasis) is required to establish error in the statutory sense….”
In other words, different specialists may reach a different conclusion on the evidence, but as long as the reasoning process is supported by the evidence, a difference of opinion will not justify intervention by a Panel.
In this case, the MA explained his reasons. He noted that Mr Cummings did not have any problems with his neck or his right arm “prior to the onset of his symptoms some 4 years ago.” The reference to “some 4 years ago” we consider is not overly out of kilter with a time frame of November 2017 to February 2021 and is not of any great relevance to the MA’s findings.
He also noted that Mr Cummings “was very active prior to the onset of his symptoms and he would go skateboarding and surfing…” activities unlikely to be indulged if significant neck symptoms were present.
The MA’s findings were also consistent with the opinion of A/Professor Hope, who notes that “although Mr Cummings did have cervical spondylosis which was pre-existing, it was not symptomatic, had not been investigated nor had it been treated. He felt it was therefore ‘largely irrelevant’”.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 February 2021 should be confirmed.
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