Hallmann v National Mutual Life Association of Australasia Ltd
[2021] NSWPICMP 90
•15 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hallmann v National Mutual Life Association of Australasia Ltd [2021] NSWPICMP 90 |
| APPELLANT: | Geoffrey Peter Hallmann |
| RESPONDENT: | National Mutual Life Association of Australasia Ltd |
| APPEAL PANEL: | Principal Member John Harris Dr Harry Stern Dr Ian Wechsler |
| DATE OF DECISION: | 15 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The worker suffered accepted injury described as Myalgic Encephalomyelitis/Chronic Fatigue Syndrome with persisting Fibromyalgia deemed to have occurred in 1996; the AMS assessed 0% impairment; Held- the AMS applied an incorrect test of injury which had been accepted by the parties; Jaffarie v Quality Castings Pty Ltd (No 2) applied and erred when stating that there were no other medical opinions on the issue of loss; the AMS also failed to consider the loss of efficient use consistent with the principles in Department of Public Works v Morrow and arguably assessed the loss based on whole person impairment rather than on the table of disabilities; on reassessment, the Appeal Panel rejected the appellant’s submission that it was bound by the arbitrator’s findings with respect to medical expenses; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine applied; the Appeal Panel rejected portions of the appellant’s case that photophobia, scotopic sensitivity, floaters, myopia and loss of visual acuity were causally related to injury; there was a lack of scientific evidence supporting the causal link and the expert view of the Appeal Panel was that these conditions were more likely due to congenital factors; the Appeal Panel was satisfied that the injury caused dry eyes because of the effect to the lacrimal gland production of tears; the Appeal Panel accepted, applying the broader test of loss of efficient use as set out in Morrow, that migraines and headaches would restrict the efficient use of the eyes; regard had to the intermittent and temporary loss of efficient use caused by those symptoms as well as the effect caused by dry eyes; MAC revoked and worker assessed at 7.5% loss of efficient use of both eyes. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
Mr Geoffrey Hallmann (the appellant) sustained injury by way of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome with persisting Fibromyalgia (ME/CFS with FM) in the course of his employment with National Mutual Life Association of Australia Ltd (the respondent) deemed to have occurred on 29 November 1996.
On 24 July 2019 Arbitrator Edwards delivered extensive reasons in relation to the matters in dispute.[1] He set out the extensive history of the litigation between the parties and then remitted the matter to the Registrar for referral to Approved Medical Specialists for assessment of permanent impairment under the Table of Disabilities for various losses pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Those losses were:
[1] Hallmann v National Mutual Life Association of Australasia [2019] NSWWCC 258 (Hallmann (No 1))
“(a) permanent brain damage;
(b) permanent impairment of the neck;
(c) permanent impairment of the back;
(d) permanent impairment of the pelvis;
(e) loss of right arm at or above the elbow;
(f) loss of left arm at or above the elbow;
(g) loss of right leg at or above the knee;
(h) loss of left leg at or above the knee;
(i) permanent loss of bowel function;
(j) loss of sexual organs;
(k) loss of sight of both eyes;
(l) loss of hearing of both ears;
(m) loss of power of speech;(n) loss of sense of smell.”
On 25 August 2019 Arbitrator Edwards provided further reasons in relation to a claim for various medical and treatment expenses.[2]
[2] Hallmann v National Mutual Life Association of Australasia, [2019] NSWWCC 283 (Hallmann (No 2))
The appellant was then assessed by several Approved Medical Specialists. The assessment for the loss of sight of the eyes was referred to Dr Michael Steiner (the AMS) who provided a Medical Assessment Certificate dated 14 December 2020 (the MAC).
The present appeal is limited to an assessment of the loss of sight of both eyes.
REASONS PROVIDED BY THE AMS
The AMS examined the appellant on 9 December 2020. He noted that the appellant was exposed to glandular fever from a co-worker in December 1992 and has been “sick on and off since”. It was noted that the appellant was diagnosed with “scotopic sensitivities” and required sunglasses.
The AMS noted the following present symptoms:[3]
“Prior to the examination he emailed me to say that when he gets migraines “up to three or four times a month” he gets blinds spot and loses his vision focus and needs to sleep it off. He also said that when he drives distances his eyes start to sting, and he has trouble seeing especially at night. He also complains of significant eye pain and his eyes gets weepy. He feels he has significant photophobia that causes headaches and migraines.
He feels that when he uses the computer he has to look out of his left eye as the right eye stings and has trouble focusing. He complained of extreme light sensitivity, dry eyes, haloing, shadowing and trouble focusing and floaters.
He also complained that his eyes were burning and itchy so that he was unable to wear contact lenses which he had worn previously.”
[3] MAC, p 2.
In his findings on physical examination the AMS stated:[4]
“His uncorrected vision was 6/36 and 6/24 on the left and 6/24 binocularly. I was able to correct his visions to 6/4 on the right and 6/5 on the left and with reading addition suitable to his age he could easily read N5 with each eye. While he was not wearing the -3.25’s that he thought he was wearing, his glasses were actually -2.5 and -2.25 on the left so he was actually a little over corrected. His tear break up time was slightly diminished. His intraocular pressures and pupil reactions were normal. His discs were moderately cupped.”
[4] MAC, p 3
The summary of injuries and diagnosis was as follows:[5]
“He has various symptoms. His eyes are very slightly dry and is overcorrected with his glasses which would cause some of his symptoms especially those symptoms of eye strain and trouble with close work. It also would appear from the OCT and the cupping of the discs to have early glaucoma. His intraocular pressures are normal and his fields are full however it is important that he be followed up by an Ophthalmologist as he may well require treatment for this.
…
Neither the presumptive glaucoma nor his myopia nor the fact that he is a little overcorrected in his glasses would be related to the original attack of glandular fever.” (emphasis in original)
[5] MAC, p 3.
The AMS concluded that there has been “no loss of visions, no diplopia, no field defects [and the] corrected visions is extremely good.”[6] There was an assessment of 0% impairment.
[6] MAC, p 4.
THE APPEAL
On 21 January 2021, the appellant filed an Application to Appeal Against a Medical Assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission).
On 11 February 2021, the respondent filed an Opposition to the Appeal. The appellant then filed details submissions in Reply.
The WorkCover Medical Assessment Guidelines (the Guidelines) set out the practice and procedure in relation to appeals to Medical Appeal Panels under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The appellant claims that the medical assessment by the AMS should be reviewed based on the application of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act and/or that the MAC contains a demonstrable error pursuant to s 327(3)(d).
The Appeal was filed after 28 days of the date of the MAC. On 25 February 2021, the Registrar’s Delegate determined that special circumstances justified an increase in the time of the period to appeal.
TRANSITIONAL MATTERS
After the appeal was lodged, the Workers Compensation Commission was abolished, and the Personal Injury Commission was created as and from 1 March 2021. The Personal Injury Commission Act 2020 amended the 1998 Act and provided for the appointment of non-presidential members and medical assessors to constitute the Appeal Panel (AP).
EVIDENCE
The AP has before it all the documents that were sent to the AMS for the original assessment and has referred to portions of the evidence and taken them into account in making this determination. A medical report attached to the appellant’s submissions was tendered to explain the delay in filing the appeal[7]. It is therefore unnecessary to refer to that report.
[7] Appellant’s submissions, para 4.5.
PRELIMINARY REVIEW
The AP conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines.
As a result of that preliminary review, the AP determined that various grounds of appeal had been established.
The AP determined that a re-examination was unnecessary. The appellant did not request a re-examination[8] and the respondent did not address the issue.
[8] Application to Appeal Against Decision of Approved Medical Specialist, 4.3.
GROUND OF APPEAL
Appellant’s submissions
The appellant filed 57 pages of submissions and a further 17 pages in Reply. Given the view of the AP that demonstrable error has been established, we have only provided a summary of the extensive and detailed submissions.
The appellant submitted that the AMS used incorrect criteria by assessing “impairment” under whole person impairment (WPI) rather than under the table of disabilities. The method of assessment was incorrect as the AMS considered the assessment of the visual system with the use of visual aids such as glasses. This approach was inconsistent with several authorities such as Eileen Bell v NSW Maritime Authority.[9]
[9] [2006] NSWWCCMA 124 at [19].
The appellant submitted that the AMS did not assess him “in order to elicit the history associated with the ‘loss of efficient use of both eyes’”.[10] An assessment of WPI is not the same as an assessment under the table of disabilities: BP Australia Ltd v Greene.[11]
[10] Appellant’s submissions, 1.1.3.
[11] [2013] NSWWCCPPD 60 at [96].
The appellant submitted that there was a demonstrable error because the AMS referred to the original attack of glandular fever whereas the findings by the Arbitrator was that injury was by way of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome with Fibromyalgia (ME/CFS with FM). This statement by the AMS was contrary to the finding of injury. Reference was made to paragraphs 4, and 440 of the Reason in Hallmann (No 1) and paragraph 398 in Hallmann (No 2).
The appellant submitted that “the question of causation was not open to the AMS”.[12] All of these matters were demonstrable errors as discussed in Mahenthirarasa v State Rail Authority of New South Wales.[13]
[12] Appellant’s submissions, 2.1.3(d)
[13] [2007] NSWSC 22.
The appellant submitted that the findings made in Hallman (No 2), together with the histories provided by the appellant, constituted a loss of efficient use of vision under the table of disabilities. In Hallmann (No 2), Arbitrator Edwards held:[14]
“I am satisfied on the balance of probabilities that the causation of the eye condition of Irlen syndrome/scotopic sensitivity manifesting itself in symptoms of dry eyes, loss of acuity, floaties on the eyeball and photophobia results from the ME/CFS as a result of the injury within the meaning of s 4 of the 1987 Act.”
[14] Hallmann (No 2) at [398].
The appellant submitted that the findings made in Hallmann (No 1) and Hallmann (No 2) constituted res judicata and issue estoppel on the referred injury and consequential conditions citing Pond v WorkCover/Allianz Australia[15] (Pond).
[15] [2001] SAWCT 69 at [19]-[20]
Reference was also made to other evidence including the opinion provided by Dr Whiting dated 27 March 2013.[16]
[16] Application to Resolve a Dispute (Application), p 725.
The appellant submitted that the statement by the AMS that he “could not find other medical opinions related to the visual system in the notes” was incorrect. Reference was made to the reports provided by Dr Bird[17], Dr Watson[18] and Dr Whiting.[19] These doctors provided assessment under the table of disabilities for the loss of vision of between 20% and 25%. This ground was repeated in his submissions.[20]
[17] Application, p 14.
[18] Application, p 240.
[19] Application, p 1204.
[20] See at para 2.3.
The appellant submitted that a loss of efficient use of visions under the table of disabilities considers wider concepts beyond “physiological or anatomical restrictions” and can consider what the eyes usually do: Cummins v G James SafetyGlass Pty Ltd.[21] The concept does not require identifiable pathology[22] and the symptoms can fluctuate.[23]
[21] (1994) 10 NSWCCR 688.
[22] Department ofPublic Works v Morrow (1986) 5 NSWLR 166 (Morrow).
[23] Drayton v Crossroads Motors Pty Ltd (1995) 12 NSWCCR 207; Free v Albury Base Hospital [1997] NSWCC 33.
Respondent’s submissions
The respondent submitted that the AMS referred to the method of assessment being under the table of disabilities and any reference to “whole person impairment” was simply an adoption of the standard formatting of a Medical Assessment Certificate of the WCC.[24] The table at the conclusion of the MAC clearly identified that the assessment was conducted by reference to the table of disabilities.
[24] Respondent’s submissions, para 4.2.1.3.
The respondent submitted that the process was not invalidated by an assessment “which records visual acuity with and without glasses”[25] and this was in accord with a previous assessment undertaken by Dr Anderson in 2008.
[25] Respondent’s submissions, para 4.2.1.8.
The respondent disputed that the examination and assessment were undertaken in accordance with a WPI assessment. It also challenged the assertion that the AMS incorrectly diagnosed the appellant’s condition and otherwise accepted that he suffered from ME/CFS with FM.
The respondent submitted that the AMS assessed no loss of vision, no diplopia, no field defects and that the corrected vision was extremely good. That lead the AMS to assess 0% loss of sight in both eyes.
The respondent submitted that there is a presumption as to regularity which applied to the AMS. That presumption “is not rebutted here”.[26] Further the AMS was forwarded all relevant material and was not obliged to refer to all material: Pitsonis v Registrar of the Workers Compensation Commission.[27] The fact that the reports were not referred to by the AMS does not mean that the reports were not read and considered by the AMS.
Appellant’s Submissions in Reply
[26] Respondent’s submissions, para 4.2.2.4.
[27] [2008] NSWCA 88.
The reply submissions generally criticised the respondent’s legal practitioners. It is unnecessary to summarise that portion of the submissions.
The appellant generally repeated his principal submissions. However, in response to the respondent’s submissions of a presumption that the AMS had read all material, submitted that this was rebutted by the clear statement in the MAC that he could not find any other medical opinions related to the visual system.
REASONS
The common submissions and the findings in Hallmann (No 1) establish that the applicant sustained injury and suffers from ME/CFS with PM. That finding is within the exclusive jurisdiction of the Commission and binding on the AMS: Jaffarie v Quality Castings Pty Ltd (No 2).[28]
[28] [2018] NSWCA 88 at [81] per White JA (Macfarlan JA agreeing at [1] and Leeming JA at [30]).
The comment by the AMS that the injury was “glandular fever” understates the nature of the injury sustained. Accordingly, any comment by the AMS that symptoms did not arise from injury within the meaning of s 66 of the 1987 Act was an application of an incorrect test of causation.
The AMS otherwise stated that he could “find no other medical opinions related to the visual system in the notes”. In those circumstances the AMS could not locate relevant medical opinion in the thousands of pages forwarded to him.
The presumption of regularity and the assumption that the AMS read all relevant material is displaced by the clear statement in the MAC that there were no other medical opinions. The respondent’s submission that the presumption applies is rejected.
The appellant correctly submitted that an assessment under the table of disabilities involves concepts from those made for injuries received after 1 January 2002. In BP Australia Ltd v Greene[29]. Roche DP referred to the differences in the two assessments when he stated:[30]
“As can be seen from the above summary, the 2001 amendments introduced a completely different scheme for the assessment and compensation of injuries that resulted in a permanent loss or impairment. Prior to 1 January 2002 (but after 1987), compensation for such claims were assessed under the Table entitled “Compensation for permanent injuries”, commonly referred to as the Table of Disabilities or Table of Maims. Under that scheme, workers were compensated for the loss, or partial loss, of a “thing” mentioned in the Table, as assessed by a judge or commissioner of the former Compensation Court of NSW based on the medical and other evidence tendered, and by reference to the percentages in the Table.”
[29] [2013] NSWWCCD 60 (Greene).
[30] Greene at [96].
Section 65 of the 1987 Act as it applies to claims for permanent impairment compensation under the table of disabilities defines “loss” to include “the loss of a thing or the permanent loss of the use, or of the efficient use, of that thing.”
As the appellant correctly submitted, the Courts have applied a broad interpretation to the meaning of “loss of efficient use” in the context of the assessing compensation under the table of disabilities. Morrow was discussed and approved by the Court of Appeal in Ownsten Nominees (No 2) Pty Ltd v Gardner.[31] In the course of his reasons, Clarke JA referred to the observations of McHugh JA in Morrow and stated:[32]
“In that context his Honour was emphasising that it does not matter whether or not it is pain in the arm which leads to the loss of efficient use, but whether, in a common sense way, a worker could be shown to have suffered a loss of the efficient use of the limb, whether that loss occurred because the use of the limb produced pain in it or in some other part of the body.”
[31] [1995] NSWCA 345.
[32] Priestley & Meagher JJA agreeing.
The appellant’s claim was not restricted to pathological changes in the eyes. His claim included a loss of efficient use of vision associated with migraines and other effects caused by other symptoms not directly related to the eyes. These aspects of the claim were not considered by the AMS.
Whilst it is unclear whether the AMS assessed the claim based on WPI, and there are strong indications that he did, the AMS did not consider the appellant’s claim in the context that it was made, that is based on loss of efficient use as detailed in the various medical reports and consistent with authorities discussing that concept. We return to these matters later in the Reasons.
The concept of “demonstrable error” was discussed by the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd[33] (Vannini) where Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales[34] a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[35]
[33] [2018] NSWCA 324 at [90].
[34] [2008] NSWCA 101.
[35] Vannini at [86].
For these three distinct and separate reasons, the AP is satisfied that the appellant has established demonstrable error. It is unnecessary to consider any other grounds of appeal as the AP is required to reassess according to law: Drosd v Nominal Insurer.[36]
[36] [2016] NSWSC 1053.
REASSESSMENT
The appellant correctly submitted that a loss of efficient use does not require identifiable pathology in the specific body part and may arise because of pain elsewhere (Morrow[37]) and can consider the subjective symptoms of which the worker complains: Lovett Building Company Pty Ltd v Burns.[38]
[37] At p 170. See also Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272 at 273, 275.
[38] (1993) 29 NSWLR 475 at 485.
The appellant correctly submitted that regard must be had to the day-to-day use of the affected part taking into account the lay evidence and the nature of the symptoms: Homsi v Ajax Metal Finishing (NSW) Pty Ltd.[39] We also have regard to the frequency of the symptoms noting that some are intermittent: Drayton v Crossroads Motors Pty Ltd.[40]
[39] [2008] NSWWCCMA 244 at [33].
[40] (1995) 12 NSWCCR 207 at 217. See also Free v Albury Base Hospital [1997] NSWCC 33.
The appellant claimed in his written submissions that his loss of efficient use of the vision included the following aspects:[41]
(a) Daily experiences of the loss of use of his eyes (appellant’s statement);
(b) Objective evidence of scotopic sensitivity, Irlen syndrome, photophobia and loss of visual acuity from -1.0 to -2.75 and dry eyes;
(c) Pain from migraines causing loss of efficient use;
(d) Visual symptoms such as stinging, floaters, conjunctivitis, focus problems, impaired depth perception; dry eyes, itchiness, diplopia, focus issues;
(e) Deterioration of symptoms following exertion; and
(f) Impaired sight and loss of sight from migraines.
[41] Appellant’s submissions, [2.2.4], p 22.
The appellant relied on the estoppel created by the findings in Hallmann (No 2)[42] as binding on the AMS. Reference was made in the appellant’s submissions to the decision of the South Australian Workers Compensation Tribunal in Pond.
[42] At [398].
Despite the absence of contrary submission, the appellant’s submission is wrong as it is inconsistent with binding Court of Appeal authority.
Whilst the AMS, and any Appeal Panel, is bound by findings of injury which fall outside the jurisdiction of a medical assessor, the AMS is not bound by findings falling within the jurisdiction given to the medical assessor under s 325 of the 1998 Act. In Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine[43] (Hine), Meagher JA noted that the “private law right constituted by the estoppel cannot prevent the operation of a statutory provision in such imperative terms.”[44]
[43] [2016] NSWCA 213
[44] Hine at [51], Leeming & Simpson JJA agreeing with the reason expressed by Meagher JA.
The finding made by the Arbitrator in Hine was in the context of earlier proceedings for weekly compensation and medical expenses. Meagher JA stated:[45]
“The relevant finding was made in proceedings for the determination of disputed claims to weekly compensation and medical expenses. No claim for lump sum compensation was made. Had such a claim been made and had it involved a dispute as to the degree of permanent impairment, the Commission’s jurisdiction did not permit it to determine that medical dispute by reference to its own findings; or that by reason of those findings there was no real or bona fide medical dispute. That was so irrespective of whether those findings were made in the course of determining the other claims, or in relation to the claim for lump sum compensation. In either case, if there was a medical dispute, it had to be referred for assessment, and decided by the Commission in accordance with that assessment.”
[45] Hine at [54].
The appellant relied on findings made in Hallman (No 2) in the context of a claim for medical expenses. The type of submission was rejected in Hine when the Court of Appeal rejected the principle of estoppel as applying when an Arbitrator was determining other claims as binding upon the AMS when assessing permanent impairment.
There is also a degree of misunderstanding in the appellant’s submissions on causation when he asserted that causation “was not open to the AMS”[46]. Whilst findings by an Arbitrator[47] on injury and the nature of the injury are matters which are binding on the AMS (and an Appeal Panel), there are other issues that fall within the exclusive jurisdiction of the medical assessor. This principle is contained in several Court of Appeal, none of which were cited by the appellant in his lengthy and extensive written submissions.
[46] Appellant’s submissions, p 9.
[47] Now called a Member of the Personal Injury Commission.
This principle was discussed by Handley AJA in Haroun v Rail Corp of NSW[48] where the issue concerned findings which were said to be binding on a medical assessor. The Court of Appeal unanimously rejected that argument when his Honour stated:[49]
“In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion.”
[48] [2008] NSWCA 192 (Haroun)
[49] Haroun at [16], McColl JA and McDougall J agreeing.
The appellant’s submission that “causation” has been determined and is not a matter for an AMS, or an Appeal Panel, was also firmly rejected in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[50]. The observations of Emmett JA note that questions of causation are relevant to matters of liability and medical disputes and it is “undesirable to avoid drawing a rigid distinction between issues of liability and jurisdiction to decide medical issues”. Emmett JA stated:[51]
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of "medical dispute". Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski[2013] NSWCA 449 at [35]).” (emphasis in original)
[50] [2014] NSWCA 264 (Bindah)
[51] Bindah at [110], Ward JA agreeing.
Having rejected the submissions of estoppel, save as to the binding nature of the consent findings on injury, the AP turns to the issue of what is the loss of efficient use of the eyes as a result of the accepted injury.
The appellant summarised the medical evidence in support of assessments ranging from 20-25% loss of efficient use of vision.[52] These reports included those provided by Dr David Bird, Dr Roger Watson and Dr John Whiting.
[52] Appellant’s submissions, [2.2.4].
Dr Bird has been the appellant’s general practitioner for an extensive period. The doctor assessed the loss at 25% associated with “Fatigue, Pain, Migraines and Scotopic Sensitivity/Irlen Syndrome”.
Dr Watson opined that the loss of vision was due to “dry eyes, photophobia and scotopic sensitivity”. The doctor stated:
“In 2006 dry eyes were noted by the AMS but not attributed to ME/CFS. Dry eyes are a common symptom in CFS. One of the other issues are floaters which are debris floating in the vitreous. An increase in these is common in ME/CFS. These changes in the eyes have prevented him from utilizing contacts because they become unduly dry and he ends up with a jelly-like consistency in the eye that results in the contact popping out or causing irritation to the eye.”
Dr Whiting summarised the visual problems related to injury including photophobia, inability to wear contact lenses, dry eyes, scotopic sensitivity, disturbed depth perception, focus problems, onset of headaches and migraines arising from issues identified and reduced tolerance for florescent lighting or halogen lighting. The doctor assessed visual loss of efficient use in the “mild to moderate range” at 25%.
The appellant was previously assessed by an Approved Medical Specialist, Dr Peter Anderson, who provided a Medical Assessment Certificate dated 13 March 2006.[53]
[53] Reply, p 151.
Dr Anderson recorded a history of floaters in the eyes and sensitivity to light since 1998 with a deterioration of vision at that time. In 1999 the appellant was prescribed Irlens glasses following a diagnosis of Irlens Syndrome. The tinted glasses were reported as assisting in reading. The appellant also wore sunglasses to avoid glare.
Visual acuity without glasses was 6/60 in the right eye and 6/36 in the left eye and with myopic correction was 6/5 right eye and 6/5 left eye. The appellant was able to read the smallest print without using the Irlens glasses. Testing revealed “some dryness of the eyes”.
Dr Anderson opined that the appellant was “moderately myopic” and there was some lack of tears in the eyes. The Doctor opined that there was no evidence that the myopia was associated with chronic fatigue syndrome. He also opined that there was “no significant visual impairment apart from some dryness of the eyes and is unable to wear his contact lenses”. He then stated that this condition did not give rise to “Whole Person Impairment” and then assessed 0% loss under the table of disabilities.
Professor Wakefield holds extensive experience in Immunology including as Head of the Ocular Immunology Research Laboratory at the University of New South Wales[54] and has provided a series of reports. In a report dated 30 September 2013 the Professor expressed agreement with Dr Whiting’s diagnosis of chronic fatigue syndrome and fibromyalgia.[55] The doctor otherwise stated that “there is no evidence of visual abnormalities based on research of chronic fatigue sufferers”.[56]
[54] Reply, pp 400-401.
[55] Reply, p 460.
[56] Reply, p 457.
The expert medical specialists on this AP agree with that statement subject to our comment concerning causation with respect to the dry eye condition.
Professor Wakefield holds extensive expertise concerning the effects of deficiencies in immunology and how they may impact on body systems including vision. These extensive qualifications are not held by the doctors relied upon by the appellant.
The AP adopts the examination findings made by the AMS. Whilst the appellant correctly submitted that there were errors associated with attributing ongoing conditions to an incorrect description of injury, that submission does not undercut the validity of the recent examination findings made by an independent specialist. We also observe that the appellant did not request a re-examination by a member of an Appeal Panel. That request was understandable given the appellant’s other multiple health problems which are detailed in the voluminous material. However, in these circumstances we are convinced that we should adopt the recent examination findings.
We do not accept that the injury has caused an actual deterioration in vision. The marginal reduction in uncorrected vision over the years[57] is more likely and probably due to the ageing process with an increase in his myopic and presbyopic corrections. That opinion is the expert medical opinion of this Panel and consistent with that expressed by Dr Anderson in 2006 and Dr Steiner in 2020.
[57] Appellant’s submissions, pp 26-27.
The appellant also suffers from myopia. This condition which is congenital and constitutional increases with age and develops at varying rates. There is no scientific basis that the injury would cause or aggravate myopia. Myopia is a constitutional condition and another explanation for the actual deterioration in the appellant’s uncorrected vision over the years. He developed presbyopia which is normal sometime after 40 years of age. It is an age-related decrease in focusing for near vision.
The appellant also has early signs of glaucoma. Again, this is a degenerative condition entirely unrelated to injury.
The appellant also relied on floaters as being part of his loss. This condition is a condensation within the vitreous gel which develops as part of the ageing process and/or associated with retinal hole formation. There was no evidence of retinal holes in his ophthalmic examination by Dr Steiner or Dr Anderson. Floaters are generally a constitutional variation of normal and entirely unrelated to the injury relied upon in this matter.
The AP accepts that the appellant’s dry eyes are probably caused by the injury. That opinion was expressed by Dr Watson and supported by Dr Peter Anderson who accepted that the mild dry eye syndrome can be associated with chronic fatigue syndrome. The AP in its medical expertise accepts that the injury can affect the lymphoid tissue within the lacrimal glands, and this could affect lacrimal gland production of tears, and this could account for a dry eye syndrome. We otherwise note that the AMS mentioned mild dry eyes.
The AP does not accept that Irlens syndrome, scotopic sensitivity and photophobia are causally related to injury. Professor Wakefield disputed any causative link and the AP in its medical expertise is unaware of and does not accept any scientific basis between the condition and the accepted injury.
The appellant asserted that there is an issue estoppel on this point by reason of the findings in Hallmann (No 2). Our reasons expressed earlier in reliance of Hines rejects that proposition.[58] We observe that the relevant portion of the reasons relied upon the opinion expressed by Dr Whiting because the doctor provided “comprehensive reasons”.
[58] See at [54] – [56] herein.
The opinion expressed by Dr Whiting[59] did not provide a scientific basis for the occurrence of “floaters” as being caused by the injury.
[59] Application, p 401.
The conclusion expressed by Dr Whiting that the myopic correction has deteriorated from
-1.25 to -2.75 dioptres over the years and is due to the injury is expressed without reference to scientific articles or reasoned scientific basis. It is also expressed in the absence of reference to normal deterioration in myopic correction due to constitutional factors, particularly in circumstances where the appellant falls within the age where such deterioration is expected due to an increase in myopic spectacle correction with increasing age.
Similarly, there is no scientific basis or medically reasoning as why the injury would cause or materially contribute to scotopic sensitivity, photophobia and the allegation of Irlens syndrome.
We otherwise do not accept the non-specialised opinion expressed by Dr Bird on this issue.
The medical experts on this AP are entitled to rely on its medical expertise. We can only state that we are unaware of an established medical basis for the causative link, and we do not accept one. Our views in this regard are consistent with those expressed by
Professor Wakefield.
We do not accept that these conditions are attributable to injury, and we do not include these conditions in our assessment of permanent impairment. Accordingly, it does not matter that the unrelated conditions (such as vision loss) can be corrected by external aids as we have not included this portion of the loss of efficient use of the eyes in the assessment.
We accept that the applicant suffers from migraines “around 2-4 times per month”[60] and tension headaches caused by his injury. These are variable, relatively short lasting and result in an intermittent loss of vision. There is a permanent loss of efficient use of both eyes because the applicant cannot use his vision as it was intended when he has migraines and similar conditions. That assessment falls within the extended meaning of loss of efficient use consistent with the principles discussed in Morrow. However, the infrequent nature of those conditions related to injury (apart from dry eyes which is a full-time condition) means that the loss is significantly less than that assessed by the various doctors relied upon by the appellant.
[60] Appellant’s submissions, p 42.
We accept the appellant’s contention that dry eyes has an impact such as an inability to wear contact lenses.
In our view, considering the intermittent nature of the symptoms of headaches and migraines, we assess the permanent loss of efficient use of both eyes at 7.5%. Our assessment is lower than those relied upon by the appellant because, for the Reasons disclosed, the appellant suffers from a number of visual conditions entirely unrelated to the work injury.
CONCLUSION
In these circumstances the MAC is revoked and a new medical assessment certificate, attached to these Reasons, is issued.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
This Certificate is issued pursuant to section 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael Steiner dated 14 December 2020 and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition (expressed as a fraction) | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Both eyes | 29.11.96 (deemed) | 7.5% | N/A | 7.5% |
John Harris
Principal Member
Dr Harry Stern
Medical Assessor
Dr Ian Wechsler
Medical Assessor
15 June 2021
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