Jenkins v Coastwide Steel & Metalwork Pty Ltd
[2021] NSWPICMP 39
•1 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Jenkins v Coastwide Steel & Metalwork Pty Ltd [2021] NSWPICMP 39 |
| APPELLANT: | William Jenkins |
| RESPONDENT: | Coastwide Steel & Metalwork Pty Ltd |
| APPEAL PANEL: | Principal Member John Harris Dr Gregory McGroder Dr John Ashwell |
| DATE OF DECISION: | 1 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant suffered injury to the lumbar and thoracic spines; the AMS assessed 7% for the lumbar spine and 5% for the thoracic spine and made a 50% deduction for the lumbar spine pursuant to section 323; the only issue on appeal was the section 323 deduction for the lumbar spine; Held- the AMS failed to provide any reasons as to how the pre-existing condition contributed to impairment; El Masri v Woolworths Ltd applied; demonstrable error established; on reassessment the Appeal Panel was satisfied that the pre-existing condition at L5/S1 contributed to impairment because the appellant was suffering from a herniated disc which was compromised because he was subject to recurrent flare ups and at times resulted in radiating pain down the buttocks; those types of symptoms indicated that the pre-existing condition was sufficiently compromised to the extent that the appellant was more vulnerable to injury, and if injured, the impairment would be worse; the Appeal Panel was entitled to use clinical experience in making this finding; Vannini v Woolworths Demolitions Pty Ltd applied; MAC revoked and deduction of one-tenth made as the extent of the deduction difficult to determine and not at odds with the available evidence. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
Mr William Jenkins (the appellant) sustained injury to the thoracic and lumbar spine deemed to have occurred on 15 August 2014 in the course of his employment with Coastwide Steel & Metalwork Pty Ltd (the respondent).
The appellant served a letter of claim dated 11 December 2019 seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).[1] The claim was based on the opinion expressed by Dr James Bodel for 12% whole person impairment (WPI) comprising 7% WPI for the lumbar spine and 5% for the thoracic spine.[2]
[1] Application, p 18.
[2] Application, p 33.
By letter dated 30 March 2020 the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) when it denied liability in respect of the allegation of injury to the lumbar spine based on the opinion expressed by Dr Panjratan in a report dated 9 March 2020.[3] Dr Panjratan assessed the appellant at 7% WPI attributable to the thoracic spine and no impairment in respect of the lumbar spine.
[3] Reply, p 14.
The appellant commenced proceedings claiming permanent impairment compensation pursuant to s 66 of the 1987 Act for the lumbar and thoracic spines.
The claim was then referred to a Commission Arbitrator who determined that the appellant had sustained an injury to the lumbar spine pursuant to s 4(b)(ii) of the 1987 Act.[4]
[4] Jenkins v Coastwide Steel & Metalwork Pty Ltd [2020] NSWWWCC 315.
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[5] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[6]
[5] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998.
[6] Clause 1.1 of the fourth edition guidelines.
The fourth edition guidelines have the force of delegated legislation.[7]
[7] Ballas v Department of Education [2020] NSWCA 86 at [97].
The assessment of WPI was then referred by the Registrar to Dr Tim Anderson, an Approved Medical Specialist (AMS), who examined the appellant and provided the Medical Assessment Certificate dated 12 January 2021 (MAC). The relevant findings made by the AMS pertinent to the various grounds of appeal are set out later in these Reasons.
The AMS assessed the thoracic spine at 5% WPI and the lumbar spine at 7% WPI. The AMS found a 50% deduction of the lumbar spine assessment pursuant to s 323 of the 1998 Act. This resulted in a combined assessment of 9%.
THE APPEAL
On 10 February 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 24 February 2021, the respondent filed an Opposition to the Appeal.
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 1998 Act.
The appellant claims that the medical assessment by the AMS should be reviewed on the ground that the MAC contains a demonstrable error. The appeal submissions were limited to asserting error by the AMS in making a deduction pursuant to s 323 of the 1998 Act in respect of the assessment of the lumbar spine.
There were no appeal submissions contesting the assessment of 5% WPI for the thoracic spine.
The Appeal was filed within 28 days of the date of the MAC. The submissions in support of the grounds of appeal are referred to later in these Reasons.
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).
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, for the reasons provided, that a ground of appeal had been established.
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.
GROUND OF APPEAL
Appellant’s submissions
The appellant submitted that there was a demonstrable error because the AMS incorrectly applied s 323 of the 1998 Act as no deduction was warranted.
There was no evidence of any impairment prior to injury as the appellant was asymptomatic demonstrated by the findings in the MAC.
In these circumstances there could be no s 323 deduction as there is no evidence of a contribution by the pre-existing condition to the current impairment: Cole v Wenaline Pty Ltd[8] (Cole). The AMS did not articulate how the pre-existing condition caused or contributed to impairment and an “assumption will not suffice”: Fire & Rescue NSW v Clinen (Clinen).[9]
[8] [2010] NSWSC 78.
[9] [2013] NSWSC 629.
The appellant referred to the opinion expressed by Dr Bodel in his supplementary report that there was “no indication clinically of any pre-existing abnormality or condition”.[10] Dr Bodel made no deduction in accordance with s 323.
[10] Appellant’s submissions, paragraph 9.
The appellant referred to the observations of Campbell J in Ryder v Sundance Bakehouse[11] and Schmidt J in Cole and submitted that the AMS was required to articulate how the “previous condition contributed to the current impairment, how it made a difference in terms of the degree of impairment resulting from the work injury nor say anywhere that there was a difference due to the pre-existing condition.”[12]
[11] [2015] NSWSC 526 and to the observations of Schmidt J in Cole.
[12] Appellant’s submissions, paragraph 12.
The appellant referred to the history of an injury some seven years prior to the subject injury and that he was working pain free and without restriction immediately prior to the injury.
It was submitted that there was no finding or reasoning as to how the condition caused or contributed to the current impairment.
It was submitted that there was no “reasoning at all” and what was required was a “detailed explanation of the criteria applied by medical specialists in reaching a professional judgment”: Soulemezis v Dudley (Holdings) Pty Ltd[13] (Soulemezis).
[13] (1987) 10 NSWLR 247 at 273-274 (Mahoney JA) and 281-282 (McHugh JA).
The appellant submitted that the absence of reasoning was a demonstrable error.
The appellant submitted in the alternative that there should be no more than a one-tenth deduction under s 323(2) of the 1998 Act.
Respondent’s submissions
The respondent submitted that the AMS did not make a demonstrable error referring to the observations of Hoeben J in Merza v Registrar of the Workers Compensation Commission[14] and Malpass AsJ in Aircons Pty Ltd v Registrar of the Workers Compensation Commission[15].
[14] [2006] NSWSC939 at [39].
[15] [2006] NSWSC 322.
The AMS was entitled to draw his own conclusions in any manner he thought fit and the assessment of the worker was a matter for his expertise.
The AMS can make a deduction for a pre-existing condition even if there is an asymptomatic condition: Cole.
The history taken by the AMS is supportive of a pre-existing condition. That history included an injury in 2008 identified as a L5/S1 herniation, pain approximately one year prior to injury which was managed conservatively and occasions where there had been further flare-ups.
The respondent submitted:[16]
“[T]he history taken by the AMS is supportive of a significant contribution by the pre-existing condition to the Appellant’s impairment noting that the Appellant had not been asymptomatic prior to the subject injury with flare ups occurring since 2008.”
[16] Respondent’s submissions, paragraph 9.
The AMS was aware of and took a full medical history and considered all the documents provided to him in reaching his own conclusion. In those circumstances the AMS did not make a demonstrable error.
REASONS
The AMS recorded a history that the appellant sustained a low back injury in 2008 which was later identified “as a posterior herniation at the L5/S1 articulation.”[17] Further history included low back pain some 12 months prior to injury.
[17] MAC, p 2.
The AMS concluded that there was a “a previous injury at the L5/S1 articulation whilst he was doing fencing work (with his father) in Queensland …. This resulted in discogenic pathology at the L5/S1 articulation.”[18]
[18] MAC, p 3.
The AMS provided the following reasons on the s 323 deduction:[19]
“There is no pre-existing condition of the thoracic spine which would necessitate a deduction. With the lumbar spine however, there is ample evidence of a significant pre-existing condition with a posterior protrusion at L5/S1. There is also a history of subsequent “flares” of this condition from time to time. I am therefore persuaded that half of the existing lumbar spine condition is reasonably attributable to this previous event. That technically reduces the 7% whole person impairment down to 3.5%, which is rounded up in his favour to 4%.”
[19] MAC, p 7.
Section 323(1) of the 1998 Act provides:
“(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.”
A deduction pursuant to s 323 of the 1998 Act is required if a proportion of the permanent impairment is due to previous injury or due to pre-existing condition or abnormality: Vitaz v Westform (NSW) Pty Ltd (Vitaz).[20]
[20] [2011] NSWCA 254.
A deduction can be made even though the worker is asymptomatic prior to injury. In Vitaz Basten JA stated:[21]
“42. The appeal to the Appeal Panel did not expressly identify an erroneous failure to give reasons. Rather, the submissions on the appeal, which appear to set out the grounds of challenge, complained that there can be no deduction under s 323, as a matter of law, in the absence of a pre-existing physical impairment. It was further submitted, by reference to the opinion of three medical commentators in a local publication:
‘If a worker develops permanent pain and symptoms due to work consistent with spondylosis in the neck region, that condition might be assessed at DRE II. Although the spondylosis is likely to have been degenerative, if there were no symptoms in the period prior to the work-related complaint, then there was no rateable impairment at that time. So nothing would be subtracted from the current impairment.’
43. That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
[21] At [42]-[43], McColl JA and Handley AJA agreeing.
Basten JA referred to the reasoning of other Court of Appeal decisions including the decision in Matthew Hall Pty Ltd v Smart[22] (Smart).
[22] [2000] NSWCA 284 at [32], Mason P and Powell JA agreeing.
In Vannini v Worldwide Demolitions Pty Ltd[23] Gleeson JA stated that an Appeal Panel, when considering the reasoning of an Approved Medical Specialist on the question of causation under s 323, was required to determine “whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality” and if so, “what was that proportion”.[24] In relation to the answer to this question, his Honour stated:[25]
“The first question involved an assessment by the Panel, substantially of fact by reference to the evidence, although in part informed by the exercise of a clinical judgment. Such an assessment may be characterised as an evaluative judgment or conclusion based on findings of fact. Nonetheless, the legal criterion applied to reach that conclusion on causation demands a unique outcome, rather than tolerates a range of outcomes. Accordingly, the reasoning and finding of the medical specialist attracts the correctness standard of review by a Panel.”
[23] [2018] NSWCA 324 (Vannini) at [90].
[24] At [90].
[25] At [91].
Gleeson JA observed that a finding as to the degree of proportion of permanent impairment due to a previous condition or abnormality “involves matters of degree and impression”.
We otherwise observe that the observations in Ryder relied upon by the appellant may be inconsistent with the legal test enunciated by the Court of Appeal in Vannini.
Consistent with these authorities, the appellant correctly submitted that the AMS “has not articulated how the previous condition contributed to the current impairment”.
The respondent’s submissions were principally directed to the fact that there was a pre-existing condition. The submissions that the AMS is entitled to draw his own conclusions and is a matter for his own expertise is undoubtedly correct. However, those submissions do not address the issue of the absence of reasons on the critical issue raised by the appellant.
The AMS did not explain how the pre-existing condition contributed to impairment.
The AMS has a statutory obligation to provide reasons pursuant to s 325 of the 1998 Act. These principles were discussed in El Masri v Woolworths Ltd[26] (El Masri) a decision involving judicial review of a decision of an Appeal Panel, when Campbell J stated:[27]
“As I have said, and at the risk of repeating myself unduly, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. Although, as Ms Allars reminded me, Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, especially if one has regard to what was said by the Panel at paragraph 18 which I will not further set out.”
[26] [2014] NSWSC 1344.
[27] El Masri at [50].
Campbell J expressed similar reasons in State of New South Wales v Kaur.[28] The appellant otherwise referred to the principles discussed in Soulemezis.
[28] [2016] NSWSC 346 at [25]
The failure to give reasons is only exacerbated because the respondent bears the onus of proof in establishing that a s 323 deduction is warranted: Mathew Hall.[29] See also the discussion in Asbestos Remover & Demolition Contractors Pty Ltd v Kruse [2017] NSWWCCMA 51[30] referring to the observations of Barwick CJ in Sadler v Commissioner for Railways (1969) 123 CLR 216 and Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133.
[29] At [37]
[30] At [52]-[54].
These reasons were non-existent and insufficient to understand how the AMS concluded that the pre-existing condition “contributed” to impairment and that the extent of the s 323 deduction was 50%.
For these reasons, the AP is satisfied that a demonstrable error is established.
REASSESSMENT
Having found error, the AP is required to reassess according to law: Drosd v Nominal Insurer.[31]
[31] [2016] NSWSC 1053.
Arbitrator Homan made an injury finding which is binding on the parties and the AMS[32] and determines “the nature of the injury sustained”.[33] The arbitrator concluded that the appellant sustained an injury to the lumbar spine by way of aggravation, acceleration, exacerbation or deterioration pursuant to s 4(b)(ii) of the 1987 Act.[34]
[32] Jaffarie v Quality Castings Pty Ltd (Jaffarie (No 2)) [2018] NSWCA 88 at [80] per White JA, Macfarlan and Leeming JJA agreeing on this point.
[33] at [80].
[34] Arbitrator’s reasons at [120].
The appellant referred to and relied upon Dr Bodel’s opinion where he opined that the “degenerative changes are not specifically contributing to the injury”.[35]
[35] Application, p 33.
Dr Bodel’s opinion is inconsistent with the Arbitrator’s conclusive findings and, in that respect, cannot be accepted.
A discharge from Wyong Hospital in June 2013 referred to a presentation with low back pain on a previous back injury eight years previously with a disc prolapse at L4 and L5. At that time, the appellant reported paravertebral pain with radiation down the buttocks.[36]
[36] Application, p 43.
There was otherwise no attack on the findings made by the AMS that there were previous flare ups in the lumbar spine condition. That conclusion is supported by clinical records in April 2014.[37] The general practitioner’s clinical note following the work injury referred to “chronic lower back pain, known prolapsed lower lumbar discs”.[38]
[37] Application, pp 75, 91.
[38] Application, p 47.
The MRI scan of the lumbar spine dated 7 September 2014 was reported by Dr Dunn as showing reduced hydration of the L5/S1 disc with an annular tear and a small posterior disc protrusion.[39] Consistent with the history recorded in the clinical notes and the Arbitrator’s findings, the MRI scan shows pre-existing degenerative changes.
[39] Application, p 78.
Gleeson JA in Vannini noted that a determination of whether there should be a s 323 deduction is “substantially of fact … although in part informed by the exercise of a clinical judgment.”
We are satisfied that the pre-existing condition contributed to the assessable impairment of the lumbar spine. We base this finding on the significant pre-existing pathology at L5/S1, the history of flare-ups prior to injury and the Arbitrator’s finding on injury.
We are otherwise entitled to use our clinical experience in concluding that the pre-existing condition in these circumstances contributed to the impairment. The appellant was suffering from a herniated disc which was compromised because he was subject to recurrent flare ups and at times resulted in radiating pain down the buttocks. Those type of symptoms indicate that the pre-existing condition was sufficiently compromised to the extent that the appellant was more vulnerable to injury and, if injured, the effects of any injury and the resultant impairment would undoubtedly be worse.
The AP applies the one-tenth deduction pursuant to s 323(2) because the extent of the deduction is extremely difficult to determine. We rely in part on the fact that the appellant was able to work in heavy employment prior to injury despite the pre-existing condition. The one-tenth deduction is not at odds with the available evidence.
The parties did not file any submissions contesting the assessments made by the AMS of the thoracic and the lumbar spine. In these circumstances we adopt those findings.
The assessment of the lumbar spine is revoked. After the s 323 deduction, the lumbar spine assessment is 6% WPI. There is no change to the assessment of the thoracic spine.
DECISION
The MAC is revoked, and a new Medical Assessment Certificate is issued. The new Medical Assessment Certificate is attached to the statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 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 Tim Anderson dated 12 January 2021 and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in fourth edition guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 | % WPI | WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar Spine | 15/08/14 (deemed) | Chapter 4, para 4.27, 4.33- 4.37 | Chap 15, Table 15-03 | 7% | 1/10th | 6% |
| Thoracic Spine | 15/08/14 (deemed) | Chapter 14, Table 14.1 | Chap 15, Table 15-04 | 5% | N/A | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
John Harris
Principal Member
Dr Gregory McGroder
Medical Assessor
Dr John Ashwell
Medical Assessor
1 April 2021
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