Henneberry v Duromer Products Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Henneberry v Duromer Products Pty Ltd [2023] NSWPICMP 306
APPELLANT:	Graham Henneberry
RESPONDENT:	Duromer Products Pty Limited
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	5 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant alleges error by the Medical Assessor in deducting 50% pursuant to section 323 for the contribution to whole person impairment (WPI) of a supervening work injury not included in the Referral; both parties accept that this constitutes error; no assertion of error in the measurement of WPI; Held – Panel accepts the assessed WPI and makes no deduction pursuant to section 323 or for the effects of the further work injury; subsidiary issue as to the date of injury not determined by the Panel as it is solely within the jurisdiction of the Commission.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 September 2022, Graham Henneberry (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 August 2022.
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, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was a fitter machinist by trade during his working life. From 2004, he was employed by Duromer Products Pty Limited (the respondent) as a maintenance fitter. In the course of that employment, he suffered injuries to his left shoulder. On 14 January 2008, he experienced severe pain in his left shoulder when lifting a bucket. He was treated by his general practitioner, Dr Kloosman of Campsie, and a radiologist, Dr Craig Harris. He underwent two cortisone injections into his shoulder. He was also treated with physiotherapy and painkillers. He made a reasonable but incomplete recovery from the injury. However, he was able to continue to perform his normal duties with a degree of discomfort.
On 18 December 2015, the appellant was required to unload jet cleaner components from his work vehicle. Following this task, he experienced severe discomfort in his left shoulder. He was treated by a general practitioner, Dr Pradeep Bai, who diagnosed a full thickness tear of the left supraspinatus tendon. Dr Bai referred the appellant to Dr Leonard Kuo, an orthopaedic surgeon, who performed a surgical repair of the rotator cuff, a biceps tenodesis and acromioclavicular joint excision on 15 August 2016. The appellant had a reasonable outcome from this surgery. He says the pain in his left shoulder “has been manageable but is mostly present.”
Following his left shoulder surgery, the appellant developed pain in his right shoulder. He was referred back to Dr Kuo who performed a right arthroscopic rotator cuff repair and acromioplasty procedure on 18 June 2018.
The appellant says that he has “lingering pain in both my left and right shoulder.” He has been unable to return to employment following the surgery on 15 August 2016.
The respondent accepted liability for the appellant’s shoulder injuries pursuant to the Workers Compensation Act 1987 (the 1987 Act) and paid him weekly payments of compensation and medical expenses. It is likely that it accepted that the condition of the right shoulder was a consequential medical condition.
On 15 December 2020, the appellant’s solicitors made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act. A Permanent impairment claim form dated 15 December 2020 claimed 20% whole person impairment (WPI) in respect of injury to the left and right upper extremities and TEMSKI scarring. The date of injury is particularised as 18 December 2015.
On 25 February 2021, the appellant’s solicitors wrote to the respondent claiming the permanent impairment compensation appropriate to 20% WPI in accordance with the opinion of a medico-legal report from Dr Bodel, an orthopaedic surgeon dated 29 September 2020. That letter included the following:
“We are instructed that on or about 14 January 2008 and again on 18 December 2015, while working in your employ and direction as a maintenance fitter, our client sustained permanent injury to his left and right shoulders.”
Dr Bodel saw the appellant initially on 19 June 2017 and provided a report of 31 July 2017. By that report, he opined that the injury in 2008 caused a partial thickness tear of the left supraspinatus tendon which settled with appropriate conservative care so that the appellant was able to perform his normal work. He opined that the injury on 18 December 2015 caused a complete full thickness tear of the same rotator cuff as a consequence of which the appellant came to surgery. He thought that the appellant’s prognosis had been improved by surgery but was “still guarded” and he would not be able to return to his pre-injury work.
Dr Bodel saw the appellant again on 29 September 2020. He assessed permanent impairment in accordance with AMA 5 and the Guidelines. He opined that the appellant had 17% upper extremity impairment (UEI) of each upper extremity. This converted to 19% WPI to which he added 1% WPI under the TEMSKI scale giving a total WPI of 20%.
Dr Bodel made no deduction pursuant to s 323 for a pre-existing condition. He opined that there was no evidence of any pre-existing abnormality or condition present in either shoulder prior to the injuries.
On 10 July 2019, Dr Silva, an orthopaedic surgeon, provided a medico-legal report to the respondent’s insurer. He also took a history of the injury on 14 January 2008. However, he recorded no history of the subsequent injury in 2015. He assessed 8% WPI of each upper extremity as a result of the injury in 2008. He deducted 10% pursuant to s 323 from this figure to reflect a pre-existing condition as there were arthritic changes over the acromioclavicular joint of both shoulders requiring the excision of the outer end of each clavicle.
On 7 June 2021, the respondent’s solicitors wrote to the appellant’s solicitors offering to settle the claim on the basis of 15% WPI. The appellant did not accept this proposal.
On 7 September 2021, the appellant lodged an Application to Resolve a Dispute (ARD) claiming permanent impairment compensation with the Personal Injury Commission. Curiously, the Injury Details in the ARD described the injury as a “disease” with a deemed date of 8 December 2015. The particulars under “Injury description and cause of injury”” were as follows:
“Injury to the left shoulder on 14 January 2008 and recurrence of the injury to the left shoulder on 18 December 2015. The applicant has since developed a consequential injury (supraspinatus tendon rupture and rupture of the long head of the biceps) to the right shoulder as a direct result of the 8 December 2015 injury.”
Conversely, the only injury particularised under the heading “Permanent Impairment” was 14 January 2008.
As the difference of opinion between Dr Bodel and Dr Silva as to WPI gave rise to a medical dispute as that term is used in s 319 of the 1998 Act, a delegate of the President referred the dispute to a medical assessor for determination. It is from the determination by Dr Anderson that the appellant brings this appeal.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
At the preliminary review, the Panel noted that it was common ground that the MA erred in making a deduction pursuant to s 323 in respect of the effects of the injury/incident on18 December 2015. It was also common ground that the two injuries should be assessed together. However, it was not argued that the MA erred in his examination of the appellant or the manner in which he allocated UEI and WPI to his upper extremities. The asserted errors related to the deduction made by the MA from his assessment of WPI. In those circumstances, the Panel concluded that it was able to address the errors without re-examining the appellant.
The panel noted that the appellant sought a re-examination by a specialist member of the panel. However, further examination would not assist in the determination of the medical dispute.

EVIDENCE

The Appeal Panel has before it all the documents which were sent to the MA 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 MA which are relevant to the appeal are set out 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 alleged two broad grounds of error.
First, he alleged that there was error in the manner in which the dispute was referred to the MA by the delegate of the President. Secondly, he alleged that the referral did not reflect the dispute between the parties. In particular, it failed to reflect the fact that the parties agreed that he suffered injury in 2008 and d18 December 2015.
In support of these assertions of error the appellant referred to his permanent impairment claim form dated 15 December 2020, his solicitor’s letter to his employer of 25 February 2021, and the reports of Dr Bodel dated 31 July 2017 and 29 September 2020 all of which referred to both injuries.
The appellant continued:
“The reports relied upon by the Applicant all clearly identify the distinct dates of both injuries with a date of deemed injury being the December 2015 date.
The Appellant submits that the MAC should be revoked and it be re-determined by referral back to the AMS. This will allow the AMS to reconsider his findings and his determination of impairment by considering not only the injury that occurred in 2008 but also the subsequent injury that occurred in 2015 that he excluded as required by the referral.”
For its part, the respondent conceded that the MA made a demonstrable error by making a one-half deduction on account of “deterioration in the appellant’s condition post 14 January 2008”. It also conceded that:
“…impairment from both frank injuries, namely 14 January 2008 and 18 December 2015, should be assessed together (as the first injury materially contributed to the later injury)”.
The respondent, however, did not accept that 18 December 2015 should be the date or “the deemed date of injury for the section 66 claim”. It submitted that in accordance with the decision of the Court of Appeal in Ozcan v. Macarthur Disability Services Ltd[1] the correct date of injury to be applied to the s 66 claim is 14 January 2008”. That was because the medical evidence in the case led to the conclusion that the first frank injury materially contributed to the second frank injury.”
[1] [2021] NSWCA 56 (Ozcan).

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales,[2] Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in his application.
[2] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd V Kocak[3] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[3] [2013] HCA 43 ((30 October 2013) (Wingfoot).
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation Legislation; : see, for example, El Masri v Woolworths Ltd[4]
[4] [2014] NSWSC 1344 (26 September 2014)
By the MAC, the MA recorded that the body parts/systems referred for assessment were the right and left upper extremities. He accurately recorded that the date of injury in the Referral was 14 January 2008.
After examining the appellant, the MA concluded that he suffered 11% WPI of each upper extremity. There is no suggestion that there is error in the manner in which he reached this conclusion. When addressing the issue of a deduction for the proportion of the impairment due to previous injury or pre-existing condition, the MA said this:
“Attention is again drawn that this assessment is very strictly to consider the whole person impairment of each upper extremity associated with the event of 14 January 2008 (and not with any other condition). This makes it very difficult, since there has been subsequent deterioration (and history of further injury) to both of Mr Henneberry’s shoulders. At this assessment, he had quite severe dysfunction of each shoulder which was virtually identical on each side, ultimately being calculated as 11% WPI on each side. I am therefore persuaded that there should be a deduction of half to each upper extremity impairment to account for the significant further deterioration of each shoulder subsequent to the circumstances of 14/01/08. This therefore reduces the whole person impairment of each side down to a technical value of 5.5%, which is rounded up in his favour to 6% WPI for each upper extremity. (Attention is again drawn to the substantial further deterioration which has occurred, mostly associated with Mr Henneberry’s work-related circumstances around mid-December 2015).” (Panel’s italics)
It is understandable that the MA was mistaken in the task that he was to perform in assessing the medical dispute. Plainly, the Referral only particularised the 2008 injury. It made no reference to the 2015 injury. The solicitors for the parties were provided with a copy of the Referral before the assessment. The appellant’s solicitor should not have permitted the matter to be referred to the MA on a basis which did not adequately reflect the medical dispute between the parties. Nonetheless, the parties have agreed that in failing to assess the impairment flowing from both the 20l08 and the 2015 injuries, the MA fell into error.
The error can be stated in several different ways. First, it was not open to the MA to make a deduction pursuant to s 323 of the 1998 Act for an injury or injuries which occurred after the injury on 14 January 2008. (Panel’s italics.) The case law is emphatic on this point: the section deals with pre-existing conditions and not subsequent or supervening injuries or conditions.
Secondly, the MA did not consider whether the deterioration in the appellant’s condition, which he largely attributed to events at work in December 2015, was causally related to the injury on 14 January 2008 in accordance with the reasoning in Ozcan. As the parties agree, if there was a causal nexus between the injury in 2008 and the subsequent deterioration, there could be no deduction to reflect a supervening injury.
Thirdly, it is arguable that the MA could have ascertained from the documentation before him including the ARD and the letter of claim that the dispute was not confined to the effects of the injury on 14 January 2008 in accordance with the reasoning in Skates v Hills Industries Limited.[5]
[5] [2021] NSWCA 142 (14 July 2021).
A review of the medical evidence leaves little doubt that there was a causal relationship between the injury of 14 January 2008 and the subsequent deterioration of the left shoulder on 18 December 2015, probably as a consequence of a further injury or, alternatively, the work which the appellant performed at that time. The medical practitioners on the Panel concluded that the permanent impairment assessed by the MA resulted from the 2008 injury and not from any supervening condition that was unrelated work. Equally, they were of the view that the impairment resulted from the 2015 injury/incident.
That leaves two further issues. First, the issues in dispute on the assessment by the MA included whether a deduction should be made for a pre-existing condition pursuant to s323. The conflicting opinions of Dr Bodel and Dr Silva on this issue are recorded above. Dr Silva thought that there should be a deduction of 1/10^th Because of the pre-existing arthritis in the acromioclavicular joints shoulders which was evident on X-ray following the 2008 injury. Dr Bodel, on the other hand emphatically stated that there was no pre-existing condition that contributed to the impairment. The MA recorded these opposing views in his MAC but did not attempt to resolve the issue.

The panel carefully considered the evidence in respect of a pre-existing condition. The medical practitioners on the panel concluded that it was improbable that the degree of pre-existing arthritis in the appellant’s acromioclavicular joints materially contributed to the impairment. The radiological suggests widespread pathology in the appellant’s shoulders probably related to his injuries, including a full thickness tear of the left infraspinatus tendon. It is not likely that the degenerative arthritis of the AC joint’s predisposed the appellant to these injuries or is responsible for the restriction of shoulder movement measured by the MA on his examination. Accordingly, the panel concluded that it was inappropriate to make a deduction for a pre-existing condition pursuant to s 323 in the circumstances case. The reasoning of Dr Bodel is more consistent with the evidence than that of Dr Silva. Accepting the findings of the MA, it follows that the appellant suffers 21% WPI as a result of his injuries.
The other issue raised by the parties is the correct date of injury. The appellant asserts that it should be 18 December 2015 whereas the respondent submits that it should be the date of the 2008 injury. As recorded above the Referral was limited to the 2008 injury. The date of injury is a liability issue which falls to be determined by the Commission and not by the Panel. On 11 April 2023, a member of the Commission addressed the dispute between the parties on this issue. Plainly, he accepted that the applicant suffered injuries arising out of and in the course of his employment in 2008 and 2015. None the less, he found that the relevant date of injury for injury to both the left and right upper extremity was 14 January 2008. It is not appropriate for the panel to cavil with this determination. It is clear, however, that both injuries contributed to the impairment. In Äccident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd[6] Brennan J, with whom each of the judges agreed, said:
“Liability to make weekly payments or to pay a lump sum is imposed on any employer liable in respect of any injury which caused or materially contributed to the incapacity”
[6] 1994] HCA 68; (1994) 121 ALR 417 (8 June 1994).
This reasoning has been consistently applied for the last three decades. If it fell to the panel to determine the issue, it would conclude that as the impairment results from both injuries there were two relevant dates of injury for the purpose of the legislation. However, as the issue has been addressed by the Commission, a final determination on that point should be left to a member.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 August 2022 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

Matter number:	W4451/21
Applicant:	Graham Henneberry
Respondent:	Duromer Products Pty Limited

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 Medical Assessor Tim Anderson 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. Left upper extremity	14/1/2008	P 2, P 10, P 12, Par 2.14	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	11	0	11
2. Right upper extremity	14/1/2008	P 2, P 10, P 12, Par 2.14	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	11	0	11
Total % WPI (the Combined Table values of all sub-totals)					21%

[2023] NSWPICMP 306

5 July 2023