ISS Property Services Pty Ltd v Adams
[2024] NSWPICMP 627
•4 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | ISS Property Services Pty Ltd v Adams [2024] NSWPICMP 627 |
| APPELLANT: | ISS Property Services Pty Limited |
| RESPONDENT: | Julie Ann Adams |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Doran Sher |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 4 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer appeal against 15% whole person impairment (WPI) finding for shoulder injury; whether Medical Assessor (MA) had erred in not applying section 323; whether opinion of medico-legal expert applying one-tenth deduction should have been preferred; Held – medico-legal expert opinion an ipse dixit; reliance by employer on a further expert opinion misconceived as further expert denied liability at all; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 February 2024 the appellant employer, ISS Property Services Pty Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 January 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the 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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 25 September 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the left upper extremity and scarring (TEMSKI) on 13 January 2020. (The referral followed consent orders being entered before Member Jane Peacock on
3 August 2023 in which the order indicated that the referral for the left upper extremity was limited to the shoulder).Ms Adams was employed as a commercial cleaner. On 13 January 2020 she was hoisting a backpack vacuum cleaner onto her back when she overstrained her left shoulder. She initially underwent conservative management but with the continuation of her symptoms she came to an arthroscopy including excision of the distal clavicle on 17 August 2021 with Dr Alex Jovanovic.
She subsequently developed adhesive capsulitis and she consulted specialist orthopaedic surgeon Dr Fraser Taylor in that regard. Adhesive capsulitis was confirmed and she underwent hydrodilatation on 2 May 2022 without any positive benefit.
The Medical Assessor found an entitlement to 15% WPI, with no WPI allowed for the scar.
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 Procedural Direction PIC7.
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 no error was found in the MAC.
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.
Medical Assessment Certificate
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 which have been considered by the Appeal Panel.
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 appellant employer submitted that the Medical Assessor had fallen into error by not making a deduction pursuant to s 323 of the 1998 Act.
The MAC
The Medical Assessor noted the investigations into Ms Adam’s right shoulder at [6], recording that a plain X-ray and ultrasound dated 16 January 2020 reported minor degenerative changes and sub-acromial bursitis.
He stated at the templated [8e] that no proportion of the WPI was due to a pre-existing condition.[1]
[1] Appeal papers page 23.
In considering other medical opinions, the Medical Assessor said relevantly:[2]
“My assessment is very similar to that of Specialist Orthopaedic Surgeon, Dr Richard Powell in his reports of 31/03/21, 25/07/22 and 26/04/23. Dr Powell deducts one-tenth, which I believe is not warranted.”
[2] MAC page 24.
At [11] the Medical Assessor when asked about s 323 had any application said:[3]
“No pre-existing condition has been identified which would necessitate the application of any deduction.”
SUBMISSIONS
[3] MAC page 6.
Appellant employer
The appellant employer submitted that the radiological imaging taken immediately following the injury on 16 January 2020 revealed the presence of degenerative change.
The appellant employer referred to the opinion of its medico-legal expert Dr Paul Hitchen, orthopaedic surgeon, of 29 April 2020. It conceded that at one point Dr Hitchen could not identify an obvious pre-existing condition but then he referred to a frozen shoulder suffered by Ms Adams in the context of it being a constitutional condition. “More importantly” the appellant employer submitted the MRI report of the shoulder revealed some minor age-related degenerative change.
The appellant employer submitted that the injury involved the same section of the shoulder, and that Dr Jovanovic confirmed that the arthroscopic findings on surgery on
11 August 2021 revealed AC joint arthropathy and impingement with subacromial bursitis. “In other words”, the appellant employer submitted, “the surgical procedure undertaken to treat the effects of the work injury involve the AC joint and bursitis, which had been previously revealed as degenerative on radiological finding”.The appellant employer noted that Dr Powell’s report of 26 April 2023 was initially commissioned by the employer but that it had been adopted by Ms Adams. The appellant employer noted that Dr Powell also confirmed that there was subacromial buritis on this occasion. There was also AC joint degeneration and rotator cuff tendinopathy and that
Dr Powell made a 1/10th deduction.It was submitted that it was unclear on what basis the Medical Assessor had determined that no deduction was warranted in view of that evidence.
The appellant employer in putting forward its argument “readily concede[d]” that the mere presence of the pre-existing injury did not automatically merit a deduction. It was however a fair interpretation of the MAC that the Medical Assessor “may have” accepted the presence of the pre-existing condition but that it was not warranted in those circumstances.
It was submitted “such an interpretation is far from certain, noting the Medical Assessor’s earlier explicit comment that no pre-existing condition in the shoulder was identified”. That finding, the appellant employer submitted was “plainly incorrect”.
The appellant employer accepted that Ms Adams was asymptomatic at the time of her injury but we were referred to the well-known case of Vitaz v Westform NSW Pty Ltd[4] that confirms that deductions can be made in the presence of asymptomatic pre-existing conditions. The question was whether that pre-existing condition had contributed to the permanent impairment assessed.
[4] [2011] NSWCA 254.
This was the case in Ms Adams’ situation, the appellant employer submitted. The radiological investigations confirmed AC joint degeneration, and Dr Jovanovic directed his surgery, in part, to that area of the shoulder.
The appellant employer also observed that the only medical expert to make a 1/10th deduction was in fact Dr Powell, who found that the pre-existing injury, abnormality or condition had contributed to the impairment assessed. The pre-existing condition had also been identified by Dr Hitchen and the radiological investigations. Accordingly such a deduction should be made, the appellant employer submitted.
The appellant employer submitted further that the Medical Assessor had failed to give adequate reasons for his determination.
We were referred to Jones v Registrar WCC.[5]
[5] [2010] NSWSC 481.
Respondent worker
A Notice of Opposition was filed by the respondent worker on 30 July 2024, the date of the Medical Appeal Panel assessment. Ms Adams submitted that there was no basis for a deduction pursuant to s 323 to be made. We were referred to Cole v Wenaline Pty Ltd,[6] Fire & Rescue NSW v Clinen,[7] Ryder v Sundance Bakehouse[8] and Vitaz.
[6] [2010] NSWSC 78, [2013].
[7] [2013] NSWSC 609.
[8] [2015] NSWSC 526.
The respondent worker submitted further as the date of injury was a deemed date, the relevant date for assessment for the application of s 323 was the date that she commenced work with the respondent which was in 2019. There is no evidence of any pre-existing condition that pre-dated that commencement, it was submitted, and we were referred to
Ms Adams’ statement to that affect.
Discussion
Section 323 of the 1998 Act provides relevantly:
“(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.”
Ms Adams referred us to a 2019 Medical Appeal Decision of A Noble & Son Limited v Naylor[9] which summarised the authorities regarding the application of s 323, which we adopt, with respect, from [27]:
“The authorities are clear and consistent with respect to what s 323(1) of the 1998 Act requires. Firstly, the level of a worker’s post-injury impairment at the time of assessment must be determined. Secondly, a prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of the worker’s post-injury impairment is due to that prior injury or pre-existing condition. If so, then lastly, the extent to which the worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined[10]
28. The third and fourth stages of that process cannot be done based on assumption or hypothesis.[11] That is to say, it cannot be assumed from the fact that a worker has a preexisting condition or has had a previous injury that a proportion of the worker’s impairment is due to that pre-existing condition or prior injury.”
[9] [2019] NSWWCCMA 144.
[10] See for example Cole v Wenaline Pty Ltd [2010] NSWSC78, Ryder v Sundance Bakehouse [2015] NSWSC526 and Pereira v Siemens Ltd [2015] NSWSC 1133.
[11] See for example Cole v Wenaline Pty Ltd [2010] NSWSC78, Ryder v Sundance Bakehouse [2015] NSWSC526 and Pereira v Siemens Ltd [2015] NSWSC 1133.
We note that what is to be assessed pursuant to s 323 is impairment that contributes to the overall impairment found by the subject injury. The appellant employer submitted that the treatment for Ms Adam’s injury involved an arthroscopic surgical procedure, which itself resulted in adhesive capsulitis, in the same area of the shoulder which was said to have pre-existing degeneration. The appellant employer referred to Dr Powell’s diagnosis that the injury had resulted in a permanent aggravation of the disease process in her shoulder, and submitted that therefore his deduction of 1/10th was appropriate.
Dr Powell provided two earlier reports dated 31 March 2021 and 27 July 2022, but made no comment in either as to the presence or absence of any relevant pre-existing condition. Before considering Dr Powell’s advice, it is convenient to consider the opinion of Dr Hitchen, on whom the appellant employer also relies.
Dr Hitchen stated on 29 April 2020 that Ms Adams woke one morning with marked left shoulder pain which had worsened as time went by. He said “at the time of the alleged injury, she only had a minor discomfort, and was able to carry on with her more usual work.”
Dr Hitchen said:[12]
“Ms Adams can't recall any previous problems with her shoulder…”
[12] Appeal papers page 345.
Later in his report, the following appeared:[13]
“3. Your opinion as to whether Julie is suffering from any pre-existing condition? If so, do you believe that the work injury/incident has aggravated, accelerated, exacerbated or deteriorated the pre-existing condition?
I cannot identify an obvious pre-existing condition, and it appears as is most commonly the case that her frozen shoulder developed spontaneously. The work incident may have drawn attention to the fact that her shoulder capsule was a little inflamed and a stretching movement when trying to put her arm through a backpack vacuum cleaner strap was understandably transiently uncomfortable”
[13] At page 347.
A further enquiry and answer was recorded:[14]
“6. After reviewing the MRI to her left shoulder. What is your opinion of the pathology? Is this pathology related to the trauma from the injury on 13/01/2020 or could this be degenerative in nature?
On reviewing the MRI report on her left shoulder there are some minor age-related changes that being AC joint arthropathy and some mild subacromial outlet stenosis. Nevertheless, if one had significant subacromial stenosis causing impingement invariably there would be subacromial bursitis inflammation. Her MRI report shows no evidence of subacromial bursitis. She has no significant rotator cuff pathology.”
[14] At page 348.
A full reading of Dr Hitchen’s report reveals that his opinion was that the employer was not liable, as the cause of Ms Adam’s condition was a frozen shoulder, which was constitutional and not work related. The age-related changes relied on by the appellant employer
Dr Hitchen specifically discounted as being causative of the injury itself. Accordingly, he did not consider the provisions of s 323, and, in context, his identifying some minor age-related changes on MRI lent no support to the appellant employer’s carefully constructed argument.The pre-existing condition identified by Dr Powell was a subacromial bursitis, AC joint degeneration and rotator cuff tendinopathy, in respect of which we note that Dr Hitchen specifically found that there was no evidence of subacromial bursitis, and that the rotator cuff pathology was not significant. Putting that to one side for present purposes, Dr Powell’s finding that the workplace incident resulted in an aggravation of the pre-existing pathology did not justify his assumption that the pre-existing pathology had contributed to any impairment to the baseline impairment that had been caused by the workplace accident.
We note firstly that the injury was not described in those terms by the Medical Assessor, who said at [7]:
“Ms Adams sustained a wrenching injury of her left shoulder complex in mid-January 2020 when she was hoisting a back pack vacuum cleaner up onto her shoulders and back. This has resulted in further dysfunction of the left shoulder complex. Her clinical management included distal excision of the clavicle on the left side. Unfortunately, she subsequently developed a frozen shoulder. Hydrodilatation did not really help. At this assessment she continues to have gross dysfunction of the left shoulder complex.”
Secondly, assuming for the sake of argument that the injury could be described as the aggravation of a pre-existing condition which necessitated surgical treatment, it does not, with respect, follow that a deduction is applicable. Whilst a pre-existing condition may very well have a role in the causation of the workplace injury, it is a mistake to confuse the concept of causation with the concept of impairment.
In Elcheikh v Diamond Formwork (NSW) Pty Ltd[15] Schmidt J said at [124]:
“…The legislative scheme required the medical specialist to determine Mr Elcheikh's deductible proportion, not by reference to his workplace injury, but rather by determining what contribution the pre-existing condition had made to the permanent impairment which had resulted from that injury.”
[15] [2013] NSWSC 365.
Thirdly, Dr Powell’s advice was no more than an ipse dixit. Dr Powell simply said:[16]
“The WorkCover Guides allow for a one-tenth deduction in the presence of pre-existing pathology. With rounding, this results in 14% whole person impairment.”
[16] Appeal papers page 57.
He did not explain why the Guides should be applied, even if his opinion had been factually correct.
The Medical Assessor in these circumstances was not required to explain why he disagreed with Dr Powell. His diagnosis was of a frank injury which caused dysfunction in Ms Adam’s left shoulder complex, in respect of which the subsequent surgery caused the later development adhesive capsulitis and her frozen shoulder. His diagnosis did not involve any pre-existing condition, and in the absence of any reasoning by Dr Powell for his opinion, his dismissal of Dr Powell’s advice as being “not warranted” was adequate to explain his reasoning. The Medical Assessor’s explanation at [11] that he had not identified a relevant pre-existing condition made his reasoning conclusive.
For these reasons, the Appeal Panel has determined that the MAC issued on
8 January 2024 should be confirmed.
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