Jewishcare NSW v Polura
[2021] NSWPICMP 49
•15 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Jewishcare NSW v Polura [2021] NSWPICMP 49 |
| APPELLANT: | Jewishcare NSW |
| RESPONDENT: | Irina Polura |
| APPEAL PANEL: | Principal Member John Harris Dr David Crocker Dr John Brian Stephenson |
| DATE OF DECISION: | 15 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The Appellant suffered injury to the left leg fracturing her patellar and aggravating and accelerating underlying degenerative changes which eventually required total knee replacement; the AMS assessed 20% for the left lower extremity and 2% for the scarring and made a 10% deduction pursuant to section 323; the only issue on appeal was the extent of the section 323 deduction for the left lower extremity; Held- when read as a whole and with regard to the reasons given for rejecting other medical opinions, the AMS explained why the statutory one-tenth deduction under section 323(2) was not at odds with the accepted evidence; Marina Pitsonis v Registrar of the Workers Compensation Commission applied; section 323(2) only applied to evidence accepted or preferred by the AMS; by reason of section 323(3), evidence rejected by the AMS does not fall into that category; the AMS provided various reasons why the statutory deduction applied; the fact that the worker had prior surgery and degenerative changes in the knee did not make those reasons wrong; further, a difference of opinion did not constitute demonstrable error; Vannini v Worldwide Demolitions Pty Ltd applied; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
Ms Irina Polura (the respondent) sustained injury to her left knee on 21 October 2016 in the course of her employment with Jewishcare (the appellant).
The respondent served a letter of claim dated 14 November 2019 seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act)[1] for impairment of the left lower extremity and scarring based on the report of Dr Bodel dated 16 September 2019.[2]
[1] Application, p 6.
[2] Application, p 16.
By letter dated 17 January 2020[3] the appellant served a notice pursuant to s 78 of the Workplace Injury Management & Workers Compensation Act, 1998 (the 1998 Act). The notice disputed that the respondent was entitled to s 66 compensation because the degree of permanent impairment was not greater than 10%. That notice was based on the opinion expressed by Dr Powell dated 30 December 2019.[4]
[3] Application, p 11.
[4] Reply, p 19.
The respondent then filed an Application to Resolve a Dispute (Application) in the Workers Compensation Commission.
Following the commencement of proceedings, the assessment of whole person impairment (WPI) was referred by the Registrar to Dr Drew Dixon, an Approved Medical Specialist (AMS) who assessed the respondent and provided a Medical Assessment Certificate dated 5 March 2020 (the MAC).
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 AMS determined that the respondent had 20% WPI of the left lower extremity and assessed a one-tenth deduction pursuant to s 323. He also determined that the respondent had 2% WPI for scarring. The combined assessment after the s 323 deduction was 20% WPI.
PRIOR PROCEEDINGS
The respondent commenced previous proceedings in matter number 1218/17. On 21 April 2017 Senior Arbitrator Bamber[7] entered an award in favour of the respondent for weekly compensation and medical expenses and stood over the balance of the claim for compensation to pay for the costs of total knee replacement surgery.[8]
[7] Now a Principal Member of the Personal Injury Commission.
[8] Application, p 5.
The claim for the cost of the total knee replacement surgery was heard and determined on 24 May 2017 when the Senior Arbitrator made ex tempore orders. Those orders were:
1. Pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 the applicant sustained injury to her left knee on 11 April 2016 in the course of her employment with the respondent, with her employment being the main contributing factor to the aggravation of the osteoarthritic disease in her left knee.
2. Pursuant to section 60(5) the Workers Compensation Act 1987 the proposed left knee replacement surgery as recommended by Dr Broe is reasonably necessary treatment as a result of the injury sustained in the course of employment with the respondent on 11 April 2016.
3. The respondent is to pay the costs of the treatment set out above in accordance with the WorkCover gazetted rates.
THE APPEAL
On 2 April 2020, the appellant filed an Application to Appeal Against a Medical Assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission).
On 1 May 2020, 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 basis of the application of incorrect criteria and/or that the MAC contains a demonstrable error pursuant to s 327(3)(c) and (d) of the 1998 Act.
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.
On 29 June 2020, a differently constituted Appeal Panel gave reasons allowed the appeal and replaced the one-tenth deduction made pursuant to s 323 with a 50% deduction.
The respondent then commenced judicial review proceedings in the Supreme Court seeking orders including the quashing of the decision made by the Appeal Panel on 29 June 2020.
On 2 March 2021, the Supreme Court issued consent orders which included that the decision of the Appeal Panel dated 2 March 2020 was quashed.
On 16 March 2021, the present Appeal Panel (AP) was constituted to hear the Appeal from the decision of the AMS.
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 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 the decision of the previous Appeal Panel was quashed by orders made by the Supreme Court, its reasons are not considered in the current appeal.
The appeal submissions were limited to asserting error by the AMS in only making a one-tenth deduction pursuant to s 323 of the 1998 Act. There were no submissions directed to alleging that the AMS erred by assessing the respondent with a 20% WPI of the left lower extremity (before any s 323 deduction) and the scarring at 2% WPI.
As a result of that preliminary review, the AP determined, for the reasons provided, that a ground of appeal had not been established.
The appellant requested that the respondent be re-examined by a member of the AP but provided no submissions on the issue. The respondent did not address this submission.
The AP did not consider a re-examination was necessary given the determination of the extent of any deduction was dependent upon an analysis of the documentation including clinical history. Furthermore, as no error has been established, the AP is not otherwise empowered to undertake a further assessment.[9]
EVIDENCE
[9] New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 at [32]-[33].
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.
THE MEDICAL ASSESSMENT CERTIFICATE
The AMS noted the history of injury on 16 April 2016 when the respondent sustained direct trauma to the left knee. Initial radiology showed a patellar fracture. Subsequently the respondent underwent a total knee replacement.
The AMS referred to the left knee x-ray dated 10 November 2016 which showed “osteoarthritic change with medial and lateral compartment line osteophytes and patello-femoral osteophytes with a trace of fluid in the supra-patellar bursa and degenerative chondromalacia.”[10] The history included an arthrotomy for a torn left medial meniscus at a young age.[11]
[10] MAC, p 3.
[11] MAC, p 2.
The AMS concluded that the injury involved an undisplaced fracture of the patellar with aggravation of pre-existing osteoarthritic change in the left knee which was treated by way of left total knee replacement. He accepted that the respondent’s presentation was consistent.
The AMS provided reasons about rejecting or accepting various medical opinions. He stated:[12]
“Dr Robert Drummond in his IME report of July 26, 2016 three months following the injury but before the total knee replacement confirmed an undisplaced fracture of the inferior half of the left patella extending to the retro-patellar articular surface and noted there was degenerative change in the knee joint with marginal osteophytes particularly in the medial compartment and patello-femoral compartment laterally and that the claimant had had an open medial meniscectomy for the left knee. He noted an MRI of the left knee on April 14 2016 showed an undisplaced fracture involving the inferior third of the patella with a partial thickness tear of the patella attachment and patella tendon and a previous partial meniscectomy of the medial and lateral menisci with associated chondrosis and marginal osteophyte formation in the medial and lateral compartment and a moderate to large joint effusion and intra-articular loose bodies and he reports that the fall did not aggravate or accelerate the osteoarthritis of her knee. I respectively disagree with this opinion, as before that the claimant was reasonably mobile and did her homecare work without restriction, three days a week, driving in between clients but since her fall has required analgesia constantly and a total knee replacement.
Dr James Yu, Interventional pain Specialist, noted in his report to the Insurance Company, GIO that he was to do a trial of spinal cord stimulation and advised the insurer of the cost.
Dr Richard Powell Orthopaedic Surgeon, in his IME report to the Insurer noted there had been correspondence from her operative surgeon which referred to haemarthrosis following treatment for an acute myocardial infarction which slowed her rehabilitation and that a trial of dorsal column stimulation by the pain management specialist did not give sustained benefit, nor did a series of nerve blocks and that the claimant still required Targin and Endone for pain relief. He reported the claimant had had an open meniscectomy following a sporting injury over 30 years ago and had an arthroscopy several years ago but no details were available and that she had had spinal surgery as noted above. He noted the left total knee replacement remained a source of ongoing symptoms, requiring referral to a pain specialist. He felt that the claimant had reached maximum medical improvement and her knee rating according to Table 17-35 was 55 points, which is considered a fair result, consistent with what was found today. Although he makes a considerable deduction for pre-existing condition, I disagree with this, and feel the claimant had reasonable pain free function of the left knee which enabled her to work without difficulty and look after patients providing support care involving driving, walking and attending to their needs as part of a homecare program, working three days a week without difficulty, and but for her fall in which she sustained undisplaced fracture of the patella would not have had the acceleration and aggravation of the previously mainly asymptomatic arthritic change in her knee which led to a total knee replacement.
Her surgeon, Dr David Broe, noted on June 7, 2016 that there were arthritic changes in her left knee which following her accident acutely flared up the underlying degenerative change and that despite optimised medical therapy, the knee continued to worsen with associated night pain and the only procedure to give her long lasting pain relief and restoration of function was left knee replacement surgery. I concur with these remarks that the left total knee replacement was indicated. She has a fair result following this surgery based on her review today.”
[12] MAC, pp 6-7.
The AMS applied the statutory deduction in circumstances where the deduction is difficult or costly to determine and not at odds with the available evidence.[13]
[13] MAC, p 7.
SUBMISSIONS
Appellant’s submissions
The appellant submitted that the one-tenth deduction is “at odds with the available evidence” and amounted to the application of incorrect criteria as discussed by Basten JA in Campbelltown City Council v Vegan.[14]
[14] [2006] NSWCA 284.
The appellant referred to paragraphs 1.26-1.27 of the fourth edition guidelines and s 323(2) of the 1998 Act and referred to the findings made by the AMS.[15]
[15] Appellant’s submissions, paragraphs 2.5-2.10.
The appellant submitted that it was “incumbent” on the AMS “to consider all of the evidence when considering the deduction to be applied.”[16] In this respect it was submitted that there was no dispute that the respondent had a significant pre-existing condition which involved a previous arthrotomy of the left knee for a torn medial meniscus. This was referred to by the AMS in the MAC.
[16] Appellant’s submissions, paragraph 2.11.
The appellant noted that the AMS reviewed the investigations in the MAC including the x-ray dated 10 November 2016.[17] It also relied on the opinion expressed by Dr Powell who referred to the sporting injury some 30 years previously, the arthroscopy several years ago and the clear evidence of significant pre-existing pathology.[18]
[17] Appellant’s submissions, paragraph 2.13.
[18] Appellant’s submissions, paragraph 2.14.
The appellant submitted that the AMS has “incorrectly applied the test set out in Cole v Wenaline Pty Ltd [2010] NSWSC 78 and Ryder v Sundance Bakehouse [2015] NSWSC 526.” It submitted that the application of s 323 required an assessment of the overall impairment after injury, an assessment of whether any proportion of that impairment was due to a pre-existing condition and the extent of that proportion.
The appellant submitted that an asymptomatic condition could contribute to impairment citing Vitaz v Westform (NSW) Pty Ltd[19] (Vitaz).
[19] [2011] NSWCA 254.
The appellant submitted:[20]
“With respect it is clear in a case where the respondent worker had a pre-existing injury to the same body part to the point that the pre-existing condition warranted surgery a greater deduction than 10% is applicable.”
[20] Appellant’s submissions, paragraph 2.19.
The appellant submitted that the “AMS has not provided any reasoning why a 10% deduction was applied to the circumstances”. In the circumstances of the case the one-tenth deduction was at odds with the available evidence.
The appellant also submitted that the AMS has not provided “sufficient reasons to either [sic] deduction was ‘too difficult to determine’”.[21] Reference was made to the obligation by an AMS to give reasons which were discussed by Campbell J in State of New South Wales v Kaur[22] (Kaur).
[21] Appellant’s submissions, paragraph 2.23
[22] Appellant’s submissions, paragraph 2.24.
The medical evidence confirms that the respondent’s pre-existing condition “contributed significantly to the current degree of permanent impairment and that a three-quarters [deduction] is appropriate having regard to the respondent’s worker’s pre-existing condition.”[23]
[23] Appellant’s submissions, paragraph 2.27.
The appellant submitted that the failure to make an “appropriate deduction consistent with the available medical evidence resulted in a demonstrable error”[24] citing Merza v Registrar of the Workers Compensation Commission.[25] The AMS failed to appropriately determine the relevant deductible proportion based on the medical evidence and this resulted in a demonstrable error.
[24] Appellant’s submissions, paragraph 3.1.
[25] (2006) NSWSC 93.
The appropriate deduction was three-quarters consistent with the available medical evidence.
Respondent’s submissions
The respondent noted that “Dr Powell gives little if any indication of his ‘actual path of reasoning’”[26] in arriving at a 75% deduction.
[26] Respondent’s submissions, paragraph 1.
The respondent referred to the opinion of Dr Drummond which was not the subject of submissions by the appellant and submitted that the tender breached “Regulation 44” and was otherwise inconsistent with then findings of Senior Arbitrator Bamber.[27]
[27] Respondent’s submissions, paragraph 2.
The respondent submitted that it must be accepted that the need for surgery and re-moulding of the knee joint was as a result of the injury due to the work aggravation causing significant symptoms in a relatively young person.
The appellant’s submission that the AMS failed to determine the appropriate deduction was only based on the x-ray dated 10 November 2016 taken seven months after the incident.[28] However, an MRI scan taken three days after the incident, referred to in the report of Dr Broe dated 26 April 2016, showed “extensive chrondomalacia”. Dr Broe otherwise opined that the injury had accelerated degenerative changes and the respondent’s condition then deteriorated over time.[29]
[28] Respondent’s submissions, paragraph 5.
[29] Respondent’s submissions, paragraphs 7-8.
The respondent submitted:[30]
“It is therefore reasonable to argue that the extent of that increased degeneration (as a result of the fall) by comparison with the pathology seen before the fall, compromised the ability of the AMS to evaluate precisely the extent of any pre-existing degeneration and it was indeed ‘difficult of costly to determine’ as required by s323(2) before a 10% deduction is adopted.”
[30] Respondent’s submissions, paragraph 9.
The respondent agreed with the appellant’s test when applying s 323 and accepted the “application of a deduction in the present circumstances”.[31] This was even though Dr Bodel did not make any deduction.
[31] Respondent’s submissions, paragraph 11.
The respondent submitted that there is an absence of medical evidence including the 14 April 2016 radiological report and objective evidence from 2008 which would show the extent of the pre-existing pathology.
The evidence of Dr Broe was that the pre-existing condition was “very well controlled”. This was consistent with the conclusion reached by the AMS that the respondent could carry out significant activities before the incident but had difficulties doing her household duties after the incident. There was no credible evidence challenging the respondent’s history which was accepted by the AMS.
The respondent submitted that a mere disagreement about the level of impairment is not sufficient to demonstrate error by the AMS: Jenkins v Ambulance Service of New South Wales[32] (Jenkins).
[32] [2015] NSWSC 633.
The use of the statutory assumption in s 323(2) is appropriate “for the purposes of avoiding disputation”. It would be an injustice to the respondent to make a greater deduction based only on speculation in the face of the respondent’s pre-injury activities and the opinion by the treating orthopaedic surgeon that the pre-existing condition was “well controlled”.
As to the ground of appeal based on an absence of reasons, the AMS’ reasoning process is clear from the above matters and from “making comments on the opinions of other practitioners”.[33] The AMS gave “extensive reasoning” with respect to the respondent’s pre-injury activities and can be contrasted with the opinion expressed by Dr Powell “who merely recites his stated belief”.[34] Dr Powell did not explain how he arrived at a deduction of 75% and he did not take into account the respondent’s pre-injury activities and he did not acknowledge the worsening effect upon the pre-existing degeneration.
REASONS
[33] Respondent’s submissions, paragraph 18.
[34] Respondent’s submissions, paragraph 19.
Section 323 of the 1998 Act relevantly 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.
(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 a 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.
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
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.
As the appellant correctly submitted, a deduction can be made even though the worker is asymptomatic prior to injury. In Vitaz Basten JA stated:[35]
“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.”
[35] 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[36] (Smart).
[36] [2000] NSWCA 284 at [32], Mason P and Powell JA agreeing.
In Vannini v Worldwide Demolitions Pty Ltd[37] (Vannini) 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”.[38] In relation to the answer to this question, his Honour stated:[39]
“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.”
[37] [2018] NSWCA 324 at [90].
[38] At [90].
[39] At [91].
The parties agree that the respondent had a pre-existing condition and that the pre-existing condition contributed to impairment. The dispute in the present case is limited to whether the AMS erred in applying the statutory deduction pursuant to s 323(2) of the 1998 Act. The issue in dispute, as described in Vannini, is the “second question”. We return to that decision later in these Reasons.
At the outset, the AP rejects the appellant’s submission that the AMS did not provide any reasoning why a 10% deduction was applied in the present case. The AMS clearly stated that he was applying the statutory deduction under s 323(2) at paragraph 11(b) of the MAC.
The reasons must be read as whole. The nature of the appellant’s submissions raises the need for caution in the terms expressed by Mason P in Marina Pitsonis v Registrar of the Workers Compensation Commission when his Honour stated:[40]
“The reasons of an administrative decision-maker (especially one who is not a judge) are not to be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ (see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-2, approving Collector of Customs v Pozzolanic (1993) FCR 280 at 287). A court should exercise restraint lest it mistakes looseness in language for errors of substance.”
[40] [2008] NSWCA 88 (Marina Pitsonis); McColl JA and Bell JA (as their Honours then were) agreeing at [31].
Similar observations were made by Handley AJA in Lukacevic v Coates Hire Operations Pty Limited[41] and recently by the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd.[42]
[41] [2011] NSWCA 112 at [107], Hodgson JA agreeing.
[42] [2018 NSWCA 324 at [1], [94] and [113].
The findings by the Senior Arbitrator disposed of any liability issues on injury: Jaffarie v Quality Castings Pty Ltd (No 2).[43] The respondent correctly submitted that Dr Drummond’s opinion was inconsistent with the liability findings of the Senior Arbitrator and that medical opinion could not be accepted. The reasons provided by the AMS on Dr Drummond’s opinion was consistent with that legal principle.
[43] [2018] NSWCA 88 at [81] per White JA (Macfarlan JA agreeing at [1] and Leeming JA at [30]).
In any event the appellant’s submissions did not rely on Dr Drummond’s opinion as providing a basis upon which it asserted that there was either the application of incorrect criteria and/or demonstrable error.
The appellant otherwise submitted that the AMS erred by not applying the three-step process.[44] There is no merit in that submission. It is self-evident from a plain reading of the MAC that the AMS assessed overall impairment, made a finding that there was a pre-existing condition and assessed the s 323 deduction.
[44] Appellant’s submissions, paragraphs 2.16-2.17.
The appellant principally submitted that the one-tenth deduction was at odds with the evidence.
The AP observes that the parties failed to refer to s 323(3) which provides that s 323(2) only applies to evidence “accepted or preferred by the approved medical specialist”.
In support of its principal submission, the appellant relied on the radiological evidence that showed extensive pre-existing condition, the fact that the worker had undergone prior meniscal surgery and Dr Powell’s opinion.
As the appellant conceded, the AMS referred to both the radiological evidence and the prior surgery. In those circumstance these matters were clearly considered by the AMS.
The AMS gave reasons for rejecting Dr Powell’s opinion. Those reasons included that the respondent was mainly asymptomatic, was working without difficulty and but for the fall, would not have had the acceleration and aggravation of the degenerative condition which led to a total knee replacement.
The appellant did not refer to those reasons and did not provide any argument contesting the AMS’s reasons in rejecting Dr Powell’s opinion.
The AMS provided sound reasons for rejecting Dr Powell’s opinion as to a 75% deduction. The appellant proceeded to rely on that opinion in circumstances where it had been rejected by the AMS as to the extent of the s 323 deduction. In these circumstances that opinion provided little if any basis for establishing relevant error as it was not evidence “accepted or preferred” by the AMS within the meaning of s 323(3).
It is correct, as the respondent submitted, that most of the reasoning process on the extent of any s 323 deduction is disclosed in the section of the MAC where the AMS rejected the opinions of Dr Drummond and Dr Powell and accepted Dr Broe’s opinions. A summary of the AMS’s reasons is:[45]
- That the respondent was asymptomatic, was reasonably mobile and undertaking homecare work without restrictions prior to injury.
- That the respondent’s presentation was consistent.
- That the fall at work involved an aggravation and acceleration of the pre-existing condition.
- That but for the injury the respondent would not have had the acceleration and aggravation of the mainly asymptomatic condition which led to a total knee replacement, and
- Agreed with the opinion expressed by Dr Broe that the incident involved an acute flare up of the degenerative condition.
[45] This summary is drawn in part from the reasons set out at paragraphs [28]-[30] herein.
Elsewhere in the MAC the AMS noted that the respondent had difficulty doing regular exercise such as Zumba.[46] This history emphasised that the respondent was physically active prior to injury.
[46] MAC, p 2.
The respondent also referred to the opinion expressed by the treating orthopaedic surgeon, Dr David Broe. In his initial report dated 26 April 2016[47], Dr Broe referred to the extensive chrondomalacia throughout the knee and acute trauma had exacerbated and accelerated the knee osteoarthritis. The doctor observed that he anticipated that a knee replacement will be required “in time”. He did not articulate the reason for the anticipated knee replacement.
[47] Application, p 23.
In a report dated 21 July 2016 Dr Broe opined that the acute trauma of the patellar fracture and the associated twisting of the knee acutely exacerbated the underlying knee osteoarthritis and had accelerated the disease process.[48] Dr Broe otherwise observed that the underlying degeneration was “very well controlled” prior to injury and the acute trauma resulted in significant swelling in the joint.
[48] Application, p 28.
The meaning of incorrect criteria in s 327(3)(c) of the 1998 Act was discussed by the Court of Appeal in Marina Pitsonis[49] and by Basten JA in Vegan.[50] The term generally refers to an incorrect application of the fourth edition guidelines or AMA 5.
[49] (Marina Pitsonis) [2008] NSWCA 88 at [40]-[42], McColl and Bell JJA (as their Honours then were) agreeing.
[50] [2006] NSWCA 284 at [95], McColl JA agreeing.
In applying the statutory deduction, the AMS was required to assess whether the one-tenth was at odds with the available evidence. That evidence included the prior surgical procedure and the pre-existing pathology. The AMS clearly considered this evidence because it was expressly mentioned in the MAC. We do not accept that this evidence is at odds with the available evidence. The AMS considered the available evidence, set out at [74] herein, in reaching the conclusion that it was appropriate to apply the statutory deduction.
The AP compromises two medical experts. We otherwise do not accept, based on the medical expertise within the AP, the appellant’s submissions that it is “clear”[51] that the one-tenth deduction is at odds with the pre-existing degenerative changes and the fact that the respondent had prior meniscal surgery.
[51] See the appellant’s submissions at [38] herein.
For these reasons we do not accept that there is an application of incorrect criteria.
The appellant also submitted that the MAC contains a demonstrable error by failing “to appropriately determine the relevant deductible proportion based on the medical evidence”.
The concept of “demonstrable error” was discussed by the Court of Appeal in Vannini where Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales[52] a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[53]
[52] [2008] NSWCA 101.
[53] Vannini at [86].
In Vannini Gleeson JA observed that the second question in s 323 involves a finding as to the degree of proportion of permanent impairment due to a previous condition or abnormality and includes “matters of degree and impression”. His Honour noted that the section “permits some latitude of opinion such as to admit of a range of legally permissible outcomes”.[54]
[54] Vannini at [92].
In those circumstances, an error is “not demonstrable merely because the Panel disagrees with the opinion of the approved medical specialist”.[55] That statement is consistent with the respondent’s submission relying on Jenkins.[56] In other words, the mere difference of opinion as to the extent of the s 323 deduction will normally not constitute a demonstrable error.
[55] Vannini at [86].
[56] See [52] herein.
The AP also notes that the onus of proof in establishing the existence and extent of the s 323 deduction lays on the employer. In Asbestos Remover & Demolition Contractors Pty Ltd v Kruse[57], a Medical Panel concluded that the onus of proof was on the employer to establish a non-compensable cause in industrial deafness cases.[58] Reference was made by that Panel to the observations of Barwick CJ in Sadler v Commissioner for Railways[59] and Garling J in Pereira v Siemens Ltd.[60]
[57] [2017] NSWWCCMA 51.
[58] At [52]-[54].
[59] (1969) 123 CLR 216.
[60] [2015] NSWSC 1133.
In Smart, Giles JA accepted the employer’s concession that it bore the onus in establishing a deduction under s 68A (the statutory predecessor to s 323).[61]
[61] At [37].
In rejecting this ground, we accept that the AMS explained his reasoning process and provided a proper basis for applying the statutory deduction. Whilst other opinions may differ as to the extent of the deduction, that of itself does not constitute demonstrable error.
The appellant’s failure to establish demonstrable error is only compounded by the fact that it bore the onus of proof on this issue and that it was required to show error on appeal.
The appellant also submitted that the AMS erred by failing to give reasons on the issue of whether the extent of the deduction was too difficult to determine. The appellant correctly referred to the decision in Kaur. The principle of whether sufficient reasons had been provided was also articulated by Campbell J in El Masri v Woolworths Ltd.[62]
[62] [2014] NSWSC 1344.
The reasons provided by the AMS must be read as a whole and include those matters set out at [74]-[75] herein. The AMS had previously rejected the opinion provided by Dr Powell as to the extent of the deduction stating that he disagreed with the “considerable deduction”. The AMS was then left with no direct evidence that he accepted on the extent of the deduction in circumstances where the respondent was basically asymptomatic prior to injury. In those circumstances the path of reasoning was sufficiently disclosed by the AMS in finding the extent of the deduction too difficult to determine and applying the statutory deduction under s 323(2).
For these reasons, the AP is not satisfied that either demonstrable error or the application of incorrect criteria is established.
DECISION
The MAC is confirmed.
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