Jeld-Wen Australia Pty Ltd v Chand
[2021] NSWPICMP 140
•3 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | JELD-WEN Australia Pty Ltd v Chand [2021] NSWPICMP 140 |
| APPELLANT: | JELD-WEN Australia Pty Ltd |
| RESPONDENT: | Sheila Chand |
| APPEAL PANEL: | Member Paul Sweeney Dr John Ashwell Dr Richard Crane |
| DATE OF DECISION: | 3 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Respondent worker assessed by Medical Assessor (MA) as Category II WPI of cervical and lumbar spines and a 2% loading for activities of daily living (ADLs); employer alleges error in failure to make section 323 deduction and in assessing ADLs; where worker had sought medical treatment for back pain prior to injury; where previous award for permanent impairment of back; where diagnosis was aggravation of degenerative disease; Held- MA erred in failure to give reasons for making no deduction to WPI of lumbar spine; assessed by the panel at 10%; no error in respect of cervical spine or ADLs; as deduction of 10% after rounding up produced the same outcome as that reached by the MA, MAC is confirmed despite finding of error. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 March 2021, JELD-WEN Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (formerly an Approved Medical Specialist or AMS). The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 February 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and
· the MAC contains a demonstrable error pursuant to s 327(3)(d) of the 1998 Act.
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.
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
Sheila Chand (the respondent) is a long-term employee of the appellant employer. On 29 June 2016, she was descending steps at the appellant’s premises in Lansvale when she “fell down about 9 steps” and suffered injury to her neck and back. She was taken to Liverpool Hospital, but following investigation was discharged the same day. She consulted her general practitioner, Dr Sidrak of Liverpool and was referred to Dr Bazina, a neurosurgeon who advised conservative treatment including injections into the neck and back and physiotherapy. She has continued to experience back and neck pain.
The respondent returned to work shortly after the injury and has continued to work for the appellant, although since 2017 she has been employed at its premises at St Mary’s rather than Lansvale. By her evidentiary statement, she says that driving from her home to St Mary’s aggravated her back and neck and between April 2019 and March 2020 she reduced her hours of work by two hours each day to better manage her pain. She returned to full-time work on 26 March 2020, as she had exhausted her leave entitlements and because she thought her job was at risk.
By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 in respect of her cervical and lumbar spines. The respondent’s claim is based on the opinion of Dr Eugene Gehr, an orthopaedic surgeon, who provided a report to the respondent’s solicitors dated 30 September 2019.
Dr Gehr diagnosed the respondent with a cervical soft tissue injury and a soft tissue injury of the lumbar spine with left radiculopathy. He assessed the respondent’s neck injury as falling within DRE Cervical Category II and assessed 5% whole person impairment (WPI). He assessed her as back injury as falling within DRE Lumbar Category III by reason of left radiculopathy and assessed her at 10%. He assessed impairment of the respondent’s activities of daily living (ADLs) at 2%. This gave rise to a combined assessment of 17% WPI. Dr Gehr took no history of a pre-existing condition and made no deduction for a pre-existing injury or condition pursuant to s 323 of the 1998 Act.
Dr Casikar, a neurosurgeon saw the respondent on three occasions at the request of the appellant and provided reports bearing date 4 May 2018, 16 November 2018, 29 November 2018 and 22 January 2020. At his initial consultation, he found “complete and pain-free” movements of the respondent’s neck. He found that she could flex her lumbar spine up to 30°. He found no neurological signs in the upper or lower limbs. He stated that an MRI scan showed evidence of “multi-segment degenerative disease”. He expressed the opinion that the diagnosis was constitutional degenerative disease of the cervical and lumbar spine aggravated by the work incident. Dr Casikar continued:
“Ms Chand initially suffered from a work-related aggravation on a pre-existing degenerative disease. The kind of injury she had would normally recover in about two to three months. I believe this has occurred. Her present symptoms are predominantly due to the degenerative disease of the cervical and lumbar spine.”
Dr Casikar next saw the respondent on 5 November 2008. His findings on examination were essentially the same as on his previous examination. He noted that the medical records provided to him suggested that the respondent had experienced previous problems with her back. He stated that the workplace incident “aggravated her pre-existing problem”. He expressed the opinion that the respondent’s neck pain was now emanating from her shoulder. He assessed 5% WPI in respect of the respondent’s lumbar spine. He continued:
“As far as the impairment is concerned, the workplace injury has caused about 50% of her injury and symptoms and the remaining impairment is due to a pre-existing degenerative disease. This is an approximate evaluation. I can be a little bit clearer once I have access to her previous radiological investigation.”
Dr Casikar saw the respondent again on 30 January 2020. He expressed the same opinion as previously.
As the different assessments of WPI made by Dr Gehr and Dr Casikar gave rise to a medical dispute, the Registrar of the former Workers Compensation Commission referred the issues of the permanent impairment of the respondent’s neck, cervical and lumbar spine to aMA pursuant to s 321A(3) of the 1998 Act. It is from the assessment of permanent impairment by Dr Berry that the appellant appeals.
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 unnecessary for the worker to undergo a further medical examination. The panel noted that the appellant requested that the worker be re-examined by a member of the panel in its application. As the appeal largely concerned the failure of the MA to make a deduction pursuant to s 323 of the 1998 Act, the panel concluded that a further examination of the worker was highly unlikely to illuminate that issue.
Certainly, a physical examination of the worker would provide no additional insight into the issues in dispute. The taking of a further medical history was also unlikely to add to the multiple medical histories in evidence and the clinical record of the general practitioner who has treated the respondent worker for many years. In these circumstances, the panel took the view that the best approach to the matter was to consider the appellant’s criticisms of the MA in the context of all of the evidence before it.
In respect of the criticism of the MA’s approach to the assessment of ADL’s, for reasons that appear below the panel is of the opinion that the appellant has not established error.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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, there are two bases for the appellant’s attack on the MAC.
First, the appellant asserts that the MA failed to have regard to the evidence of the respondent’s pre-existing condition and to the previous Court award for 4.165% permanent impairment of the back following an earlier workplace injury on 27 October 1993. Consequently, the MA made no deduction with respect to pre-existing condition or abnormality in accordance with s 323 of the 1998 Act. Secondly, it is alleged that the MA failed to obtain a history of the impact of the respondent’s injuries on her ADLs. Thus, the MA failed to provide sufficient reasoning for his assessment of 2% WPI for ADLs.
In respect of the s 323 argument, the appellant refers to its Application to Admit Late Documents dated 27 January 2020 which attached documents from the Compensation Court file in matters 39084/99 and 15651/02. Included with the latter documents were Terms of Settlement providing for permanent impairment compensation of 4.165% in respect of the respondent’s back. The appellant submits that the MA made no reference to this document. Rather, he recorded a history that the respondent worker suffered an injury in 1993 and made a full recovery over a matter of months. That history. It submitted, is plainly inconsistent with the agreement to pay compensation for 4.165% permanent impairment of the back in 2003.
The appellant also submits that the MA did not make any reference to the radiological evidence obtained shortly after the respondent worker’s injury or the clinical notes of Dr Sidrak which it argues:
“confirm the Worker presented on a number of occasions prior to the fall at work on 29 July 2016 complaining of cervical, thoracic and lumbar spine pain. The worker had undergone a number of radiological investigations prior to the work injury.”
The appellant submits that the radiological evidence confirms the presence of “pre-existing degenerative disease in both the cervical and lumbar spines.” In those circumstances, a deduction should have been made in accordance with s 323 of the 1998 Act.
In respect of ADLs, the appellant argues that the MA failed to obtain a history from the respondent “of the activities she performed before and after the work injury”. The submission continues:
“It is submitted that the medical assessor failed to give sufficient reasoning for his assessment given the lack of history detailed in the MAC addressing the impact the injury had on the worker’s social and recreational activities, home care and self-care.”
The respondent submitted that the Application for Determination dated 28 March 2002. The pleadings in matter 15651/02, which led to the filing of Terms of Settlement for permanent impairment compensation contain no allegation of an injury to the back. Her submission continues:
“It is not known why our terms of settlement provide a settlement on the basis of 4.165% impairment of the back. There is no medical evidence before the Personal Injury Commission in relation to any injury to the back occurring in the injury of 27 October 1993.”
The respondent then submitted that the MA was not bound by the terms of the prior settlement. The history which he recorded was consistent with the absence of an allegation of injury to the back in the previous proceedings.
The respondent next submits that there is no evidence that Dr Berry failed to consider the radiological evidence brought into existence following her injury in 2016. The MAC records that the MA considered the documents “as listed in the referral from the Registrar”. These included the Application to Admit Late Documents containing the clinical record of Dr Sidrak. It should, therefore, be accepted that Dr Berry has considered the radiological evidence and the clinical record of Dr Sidrak.
Further, Dr Berry considered the hypothesis of Dr Casikar that there should be a significant deduction pursuant to s 323 but rejected it and formed the opinion that there should be no deduction for a pre-existing condition. It is, therefore, evident that the MA dealt with the respondent’s argument in respect of s 323 in his MAC.
The respondent notes that while there are references to back pain in the clinical record of Dr Sidrak, there are no complaints recorded in the several years immediately before the injury on 29 June 2016. The respondent argues that:
“In those circumstances it would be submitted that the prior complaints were mild and that Dr Berry’s determination to make no deduction from the neck or the back impairments under s 323 was appropriate.”
Finally, the respondent deals with the appellant’s arguments in relation to her ADLs. She argues that:
“This submission is simply incorrect. Dr Berry obtains a history that the worker finds driving very uncomfortable and that she finds it difficult to sit in front of a computer at work. Dr Berry also notes at page 3 under heading ‘Social Activities/ADL’ that the worker lives in a single storey house and that her husband performs the heavier household duties such as cleaning the shower.”
FINDINGS AND REASONS
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.
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 subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). 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 panel has only considered those grounds specifically raised by the appellant in her application.
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 medical assessment certificate 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 Limited v Kocak 88 ALJR 52 (Kocak) 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 Kocak, 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.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
In the MAC, the MA recorded the following history in relation to previous injuries or conditions:
“Mrs Chand told me that in 1993 while at work she had a fall fracturing her left ankle. She was fitted with a cast and treated conservatively. Mrs Chand made a full recovery over a number of months and the claim was settled.”
Then, in paragraph 11 which relates to a deduction for pre-existing injury or abnormality, he records the following:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:-
(i) Nil”
While the MA does refer to Dr Casikar’s report of 22 January 2002, he does not record or address the doctor’s assertion that the respondent’s pre-existing degenerative disease of the lumbar spine materially contributed to the impairment of her lumbar spine. Indeed, the MA does not refer to any aspect of the evidence that is relevant to the issue of whether there should be a deduction for a pre-existing injury or abnormality. Further, he provides no reason why he concluded that there should be no deduction for the respondent’s pre-existing condition.
Section 325 (2) of the 1998 Act requires the MA to set out the facts on which his assessment is based and the reasons for his assessment. While it is unnecessary for the MA to consider the competing hypotheses of other medical practitioners, it remains the case the MA is obliged, in accordance with the reasoning in Kocak, to explain the “actual path of reasoning” by which he arrived at an opinion. That obligation extends to the opinion which the MA expressed in relation to a deduction for a pre-existing injury or condition pursuant to s 323 of the 1998 Act.
In this case, the evidence suggests that the respondent had received compensation in respect of impairment of her back in 2003 and had undergone scans of her lumbar spine on 16 June 2003, 24 September 2004, 22 October 2007,19 February 2008 and 20 August 2012. There is a reference to back pain in the notes of Dr Sidrak on 5 November 2011, to L2/3, L3/4, L4/5 “disc bulge” on 29 November 2011, to back pain on 20 August 2012 and21 August 2012, and to a lumbar disc bulge on 15 May 2013.
There are also the opinions of several doctors that the respondent’s symptoms are caused by degenerative disc disease or soft tissue injury superimposed on degenerative disc disease. Then there is the opinion of the appellant’s qualified neurosurgeon who makes a substantial deduction in respect of impairment of the appellant’s lumbar spine for pre-existing lumbar degenerative disease.
The evidence set out in the preceding paragraphs requires a response. In the absence of any explanation in the MAC of how he reached the opinion that there should be no deduction for a pre-existing injury or condition, the MA has failed to explain the actual path of his reasons. A failure to provide reasons is a demonstrable error.
If the MA had given brief reasons for his opinion in respect of a deduction pursuant to s 323, it would have been unnecessary for him to refer to those aspects of the evidence which suggest the possibility that the respondent suffered back pain on occasions in the past. It might be assumed, as the respondent submitted, that the MA had read the material. In the absence of reasons, however, his failure to refer to any of this evidence compounds the error of failure to give reasons.
The panel accepts that the small award for permanent impairment of the back in 2003 would not, of itself, dictate that there should be a deduction pursuant to s 323 as the respondent may have recovered from the effects of the earlier injury and/or it may not have contributed to any impairment of the lumbar spine attributable to the 2016 injury: see Cole v Wenaline Pty Ltd [2010] NSWCA 78 and Fire & Rescue NSW v Clinen [2013] NSWSC 629 (28 May 2013). There is no medical evidence which directly addresses the nature of any back injury for which the respondent was compensated in 2003. It is, therefore, difficult to assess whether it has any significance for the respondent’s present back condition.
Nonetheless, the panel is of the opinion that the medical history obtained in the notes of Dr Sidrak including the multiple scans of the lumbar spine, the references to lumbar disc bulges and the complaints of low back pain suggest that the respondent has experienced a symptomatic lumbar degenerative condition from time to time in the past. The respondent worker has, of course, given similar histories to several doctors by which she denies the presence of a pre-existing lumbar condition. Her evidence in that regard, however, does not sit comfortably with the clinical notes of Dr Sidrak.
A CTscan of the respondent’s lumbar spine following her fall, which is reported on by Dr Mayat on 16 August 2016, is said to demonstrate “degenerative changes within the lumbar spine” with the facet joint arthropathy and osteophytic encroachment on the exit foramina. An MRI scan of the lumbar spine is reported to demonstrate multi-level degenerative changes but no frank disc protrusion. It is highly probable that these lumbar degenerative changes pre-dated the respondent’s injury and that they were aggravated by her fall at work. That would be consistent with the previous radiological evidence and complaints of lumbar pain in the notes of Dr Sidrak. In the opinion of the panel, it is probable that the underlying degenerative changes contribute to the respondent worker’s impairment of the lumbar spine.
The panel does not accept the opinion of Dr Keller in his report of 5 December 2016 that the aggravation of the degenerative changes in the respondent’s spine by the fall would have resolved in a matter of months. The respondent has continued to experience symptoms in her back which have required treatment since the fall. By contrast, as the respondent submits, there is no reference to symptoms at or treatment of her lumbar spine in the notes of Dr Sidrak in the several years prior to the fall.
It is, therefore, extremely difficult to establish the extent of the respective contributions of the injury and pre-existing degenerative changes with any degree of certainty. The respondent told the MA that she was symptom-free at the time of the work injuries and there is no good basis to reject her evidence. It is not inconsistent with the notes of Dr Sidrak. If not for the lumbar injury, she may have remained symptom-free indefinitely. Her injury is the most cogent causative factor in the development of symptoms and impairment in the lumbar spine. The medical practitioners on the panel formed the view that the best approach in this case is to make a deduction of 1/10th for the pre-existing condition in accordance with s 323 (2) of the 1998 Act.
It must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principles enunciated a very long time ago in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden 114 CLR 164 have application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Act is also of ancient lineage: see Sadler v Commissioner for Railways (NSW) (1969) 123 CLR 216. It is necessary for a respondent to point to appropriate evidence to support a deduction. While there is a pre-existing condition contributing to the impairment in this case the deduction of a greater percentage than 1/10th would involve the panel in an exercise in speculation.
The situation is different in respect of the respondent’s cervical spine. It is true that the respondent has a degenerative condition of the cervical spine. However, there is no evidence to suggest that it was previously symptomatic. As far as the panel could ascertain, there is no reference to complaints of, or treatment for, neck pain in the notes of Dr Sidrak. It is, therefore, likely the respondent was symptom-free up until the time of the fall. In those circumstances, it is not evident that any part of her present cervical impairment is due to the pre-existing condition. The medical practitioners on the panel were not persuaded that a deduction should be made pursuant to s323. The appellant has not proven that there should be a deduction in respect of injury to respondent worker’s cervical spine as the extent of the contribution of a pre-existing condition is mere speculation.
In respect of the impact of her injuries on ADLs, the MA recorded the following:
“The claimant can self-care but has difficulty with household duties and outside activities.”
Earlier in the MAC, the MA recorded that the respondent and her husband lived in a single-story house and that he performed heavier household duties such as cleaning the shower.
While the history directly relating to ADLs is brief it was recorded in the context of a general medical history and the examination of the worker. Chapter 4.33 of the Guidelines relevantly states that:
“An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
In the opinion of the panel, the reasons provided by the MA for reaching his conclusion of 2% WPI are perfectly intelligible. He has complied with his obligation to explain their actual path of his reasons in accordance with the instruction in Kocak. An inability to perform heavier household duties outside activities may give rise to an assessment of 2% WPI. There is no evidence to the contrary or compelling reason to believe that the MA was wrong in his assessment.
A deduction of from the assessment of 5 % WPI of respondent’s lumbar spine still produces a figure 5% after rounding up. While the panel has found error in the approach of the MA to the issue of the pre-existing impairment of the lumbar spine, the panels re-assessment of the percentage WPI resulting from the injury is the same as that certified by the MA in respect of each body part. In the circumstances, the panel took the view that it would be inappropriate to revoke the MAC and issue a new MAC
For these reasons, the Appeal Panel has determined that the MAC issued on 23 February 2021 should be confirmed.
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