Fardell v Clinton Industries Pty Limited
[2021] NSWPICMP 51
•16 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Fardell v Clinton Industries Pty Limited [2021] NSWPICMP 51 |
| APPELLANT: | Ian Fardell |
| RESPONDENT: | Clinton Industries Pty Limited |
| APPEAL PANEL: | Member Catherine McDonald Dr Drew Dixon Dr J Brian Stephenson |
| DATE OF DECISION: | 16 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Section 323 deduction; worker suffered a back injury in 1989 and underwent surgery; contemporaneous medical reports show ongoing complaints of back pain and radiculopathy; further injury in 1999 and later disc replacement surgery; AMS deducted one-third under section 323 because the previous injury did contribute to the impairment; Cole v Wenaline Pty Limited and Ryder v Sundance Bakehouse considered; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 February 2021 Ian Fardell lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 1 December 2020.
Mr Fardell relies on the following ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The Registrar was 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 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
Mr Fardell developed pain in his lower back in 1989 whilst self-employed as an auto-electrician. He underwent an L4/5 laminectomy in September 1989. His pain improved following the surgery but he was never pain free.
On 30 March 1999, whilst employed by Clinton Industries Pty Limited (Clinton) he bent to pick one end of a pipe from the floor when he felt something pop in his back. After a period of conservative treatment, Mr Fardell underwent disc replacement surgery on 19 April 2004. The pain recurred and Mr Fardell was treated by pain management specialists. A spinal cord stimulator was inserted but later removed.
The AMS assessed 24% whole person impairment (WPI) from which he deducted one-third under s 323 of the 1998 Act, resulting in WPI of 16%.
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 the assessment made by the AMS does not disclose an error..
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.
The parts of the medical certificate given by the Medical Assessor 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, Mr Fardell submitted, through his solicitor Ms Swan, that the AMS was in error to deduct one third of the assessment under s 323. He agreed that the assessment of 24% was appropriate. He quoted from the decisions of Cole v Wenaline Pty Limited[1] (Cole) and Ryder v Sundance Bakehouse[2] (Ryder) to argue that the AMS had not considered if the previous injury in fact contributed to the current level of impairment. He submitted that the injury suffered was an L4/5 disc protrusion for which he had undergone disc replacement and that he would have been assessed in DRE Lumbar Category IV whether he had prior surgery or not. He said there was no evidence of radiculopathy following the first operation and that the radiculopathy suffered was a result of the new disc protrusion. Mr Fardell submitted that there should be no deduction under s 323 so that his WPI would be more than 20%.
[1] [201] NSWSC 78.
[2] [2015] NSWSC 526.
In submissions prepared by its solicitor, Mr Lee, Clinton said that there was evidence that Mr Fardell suffered back pain and radiculopathy after the surgery in 1989 which prevented him from continuing to work as an auto-electrician and caused him to retrain. Clinton noted that when Davidson CCJ made an award in respect of permanent impairment of the back in 2001, his Honour deducted two thirds in respect of the 1989 injury. The contemporaneous medical evidence showed that Mr Fardell complained of radiculopathy in the period before the second injury and Clinton submitted that the AMS had not made a demonstrable error.
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.
The MAC
The AMS noted the reports of the independent medical examiners qualified for Mr Fardell and Clinton. He summarised the treatment after the injury on 30 March 1999 and Mr Fardell’s current symptoms. In respect of the previous injury he said:
“In 1989 he developed pain in his lower back. This was managed by a discectomy at the L4/5 level, which gave him improvement although ever since then, there was still continuing pain.”
The AMS set out his findings on examination and described the radiological investigations he was shown dating from 1999, 2003 and 2005. He summarised the injuries and his diagnoses:
“Mr Fardell gives a history of severe low back pain which started in late March 1999 when he was standing up from bending down to pick up a relatively lightweight component. It was identified that there was discogenic pathology at the L4/5 level. This was managed by a disc replacement several years later under the care of Specialist Spinal Surgeon, Dr Robert Kuru.
Later there was further deterioration. There was a trial of a spinal cord stimulator which initially seemed to be quite successful, but later when it was permanently implanted, was very much less effective and has subsequently been completely removed. He continues with gross dysfunction in his lower back with radiculopathy down the left leg.”
The AMS said that there was “evidence of substantial pre-existing features of his lumbar spine in which a previous discectomy at this level was conducted.” He explained his calculations:
“Mr Fardell has had a disc replacement at the L4/5 articulation. This places him into DRE Lumbar Category IV in Table 15-03 on Page 384 of AMA 5. This provides a whole person impairment ranging between 20% and 23%, depending on the activities of daily living. For this he would qualify for a further 2%, giving 22%.
There is the continuing effect of radiculopathy which is addressed in the SIRA Guidelines Page 29, Table 4.2. This provides a further whole person impairment of 3%. When combined with the previous whole person impairment, the result is 24%.”
The AMS described the reports of Dr J Bosanquet, qualified for Clinton, and Dr J Negus, qualified for Mr Fardell. He said:
“Specialist Orthopaedic Surgeon, Dr John Bosanquet in his initial report of 02/10/07 later supported by his much more recent report of 17/05/17 advises that there should be a deduction of two-thirds of the impairment due to the substantial pre-existing condition. Ultimately he arrives at a whole person impairment of 10%. I am persuaded that the deduction of two-thirds is too great.
Specialist Orthopaedic Surgeon, Dr Jonathan Negus in his report of 21/03/18 calculates a whole person impairment of 24% with the same criteria as myself. He then has a deduction of one-tenth to give a final WPI of 23%. With great respect, I believe this is very much at odds with the existing clinical evidence. The deduction should be considerably more than one-tenth.”
The AMS gave reasons for the deduction under s 323:
“In 1989, Mr Fardell had a discectomy at the L4/5 articulation. After this more recent event, the specific clinical management was a disc replacement. This is a more substantial clinical intervention. With the extensive pre-existing condition from 1989, there would reasonably be a significant deduction. In evaluating the pre-existing condition with the disc excision with the much more recent event where there was a disc replacement, I believe that there should be a one-third deduction for the pre-existing condition and that the event of 30/03/99 would constitute two-thirds of the current impairment.”
After making a one-third deduction, the AMS assessed 16% WPI.
Medical evidence
There is no medical evidence other than the medico-legal reports obtained for the purpose of the WPI claim in the Application for Assessment by an AMS. There is also no statement from Mr Fardell.
Dr Negus did obtain the history that Mr Fardell underwent a laminectomy in 1989 and
“Since this operation, his pain did not fully settle and he has been seen by a number of pain specialists at Royal North Shore Hospital and although the pain improved, he has never been pain free.”
Dr Negus also noted:
“He was referred to Dr Simon Hammond (neurologist) on 30/11/1999 who saw him with the results of nerve conduction studies ordered by Dr Chan. These showed evidence of a left L5 and S1 radiculopathy and on the basis of these, another MRI was ordered.”
The reasoning offered in support of the one-tenth deduction made by Dr Negus was that Mr Fardell had “previous spinal surgery at the L4/5 level and was not pain free.” Mr Fardell did not adopt Dr Negus’ opinion but argued that there should be no deduction.
There are some reports from the period between the two operations in the Response. On 9 April 1990 Dr Bleasel recorded that Mr Fardell arrived at the consultation by ambulance and required a wheelchair to bring him to Dr Bleasel’s rooms. His present complaints were:
“His present complaints are of a sense of heaviness in both legs with numbness of the legs, the left worse than the right. There is a tingling sensation in the legs which radiates up to his spine and when he stands there is a burning sensation-which travels from the feet to the knees. He said that his legs are very weak and will not bear his weight or allow him to walk.”
Dr Bleasel recommended inpatient pain management treatment.
According to a report of Dr P Wearne dated 20 December 1990 that treatment took place. Dr Wearne noted that Mr Fardell had suffered an L4/5 disc protrusion and left sided sciatica which had been treated surgically. By the time of that examination, Dr Wearne considered that Mr Fardell was better than he admitted.
On 15 May 1991, Dr P Dowse sought a copy of Dr Wearne’s report from the insurer which commissioned it because he considered that Mr Fardell had not fully recovered from the surgery and was “completely disabled.” He noted that Mr Fardell was undergoing retraining.
On 16 July 1992, Dr M de Burgh examined Mr Fardell for an insurer and obtained a history that he suffered ongoing pain in his back and left leg with numbness in his foot and the “lower half of his lower left leg”.
Dr R A Evans reported to Mr Fardell’s former lawyers on 29 October 1996. He also obtained the history that Mr Fardell suffered continuing pain in the back and legs. At that time he was working for Clinton. Mr Fardell said that the pain radiated to both legs with the left being more troublesome and it was felt in the front and back of his thigh, back of the calf and top of the foot.
Dr Chan commenced to treat Mr Fardell in 1993 and noted that he suffered pain in both legs with numbness, weakness and loss of power since the injury in 1989 and not corrected after the operation. In 1998 Dr Chan diagnosed left L5 radiculopathy.
Dr Negus saw a report of an MRI scan dated 3 May 2000 which described:
“a left posterior disc protrusion at L4/5 leading to medial deviation of the left LS nerve root sheath and indentation of the left anterior aspect of the thecal sac and while there was bilateral degenerative facet joint changes at that level, there was no significant neural foraminal narrowing.”
Dr D Meachin, who saw Mr Fardell in 2006 for an insurer, noted that he had pain down the left leg after the injury in 1989 and that there was initially some improvement after the first operation until he fell in hospital and his symptoms recurred. The paraesthesia in his left leg increased after the injury in 1999.
Dr Bosanquet saw Mr Fardell for Clinton’s insurer in 2007 and 2017. He reviewed a series of reports which do not form part of the evidence in these proceedings. In his report dated 20 March 2017 he assessed 24% WPI, attributing one-tenth to the previous injury. However, when it was drawn to his attention that was inconsistent with his opinion in 2007, Dr Bosanquet apportioned two-thirds to the pre-existing condition and one-third to the 1999 injury.
Consideration
There are a number of descriptions of the surgery undertaken in 1989 but none of them are contemporaneous. It is variously described as a laminectomy and a disc excision. The MRI scan report in 2000 suggests that the surgery was not the latter. It is likely that the surgery was a decompressive laminectomy, removing part of the disc. The CT scan report in 2000 showed a posterior protrusion at L4/5.
The evidence shows that Mr Fardell continued to have back and leg pain after that surgery and that the left leg pain increased after the 1999 injury. The submission that there was no evidence of radiculopathy before the 1999 injury is at odds with that evidence.
Section 323(1) and (2) provide:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) 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 (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
In Cole, Schmidt J said:
“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 of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”[4]
And
“Section 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment assessed resulted from an earlier injury, pre-existing condition or abnormality. In a case such as this, that conclusion must be reached on the evidence led as to the actual consequences of the earlier and later injuries, unless the assumption provided in s 323(2) applies.”[5]
[4] At [30].
[5] At [34].
Mr Cole’s history was quite different to that of Mr Fardell. He underwent an L5/S1 discectomy as a result of an injury in 1976. He had an excellent recovery and returned to full labouring duties without symptoms until another injury in 2005. After recovering from the first injury, Mr Cole has no impact on his activities of daily living and no radiculopathy. In a majority decision, the medical member of the panel proceeded on the assumption that the fact of the first injury, irrespective of outcome must have contributed to the impairment. Her Honour’s statements were made in that context.
In Ryder, Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”[6]
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[7]
[6] At [45].
[7] At [54].
Mr Fardell argued that the AMS had not addressed the question of whether the previous impairment meant that there was now a greater impairment. It is clear that he considered it did. The AMS gave clear and concise reasons for the deduction he made and was not required to provide further detail.
In Bojko v ICM Property Service Pty Ltd[8], Handley AJA said[9] that the worker’s argument:
“… involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’”
[8] [2009] NSWCA 175.
[9] At [39].
The Guidelines provide in paragraph 4.38 that the impairment from disc replacement surgery is equated to a spinal fusion. Assessment in DRE Lumbar Category IV was appropriate. Based on the history provided and the observations on the day made by the AMS, the assessment of 24% WPI was appropriate as was the deduction of one-third.
It is unlikely that disc replacement surgery would have been offered in 2004 in the absence of previous surgery. As the AMS said, it is a more substantial intervention. He identified that the pre-existing condition was extensive.
The medical reports in the period between the two operations confirm that the pre-existing condition was extensive. Mr Fardell was unable to continue working as an auto-electrician and was retrained. He continued to complain of back pain and Dr Evans recorded significant radicular symptoms in 1996, confirmed by Dr Chan in 1998. Dr Negus recorded that he was never pain free. Those factors are relevant to the determination that the surgery impairment resulting from the injury in 1999 was greater because of the impairment resulting from the previous injury.
The appropriateness of the deduction made by the AMS can be illustrated by considering the likely assessment following the surgery in 1989. Based on the material in the file and assuming a laminectomy had been undertaken, at any time during the intervening period Mr Fardell would probably have been assessed in DRE Lumbar Category II at 5% WPI with the addition of 2 or 3 % for the impact on the activities of daily living, resulting in an assessment of 7 or 8% WPI, which equates to about one-third of the current assessment.
The assessment made by the AMS was a valid exercise of his skill, expertise and clinical judgement.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 December 2020 should be confirmed.
0
3
0