Kearney v Barnsley Cabinet Detailers Pty Ltd
[2024] NSWPICMP 772
•15 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kearney v Barnsley Cabinet Detailers Pty Ltd [2024] NSWPICMP 772 |
| APPELLANT: | Gregory Gerard Kearney |
| RESPONDENT: | Barnsley Cabinet Detailers Pty Ltd (Deregistered) |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 15 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against Table of Disabilities assessment; whether Medical Assessor (MA) complied with terms of referral; whether MA ignored a prior complying agreement; whether MA gave adequate reasons; Held – MA misquoted the terms of the referral, applied objective tests to a pre-2002 referral and failed to give reasons as to why he did not examine all of the body parts referred; Medical Assessment Certificate revoked and after re-examination, new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 January 2024 Gregory Gerard Kearney, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 December 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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 5 December 2023 an amended referral was made for an assessment under the Table of Disabilities for the following:[1]
“Permanent loss of use of the neck, back, right arm at or above the elbow (emanating from the neck), left leg at or above the knee (emanating from the back) and the right leg at or above the knee (emanating from the back).”
[1] Appeal papers page 32.
The referral concerned an injury that occurred on 7 November 2001.
The face of the referral referred to notations by a Member that amended the description of Barnsley Cabinet Detailers Pty Ltd (Deregistered) (the respondent) to add that it was deregistered and “to plead as the only injury relied upon, injury on 7/11/2001 – ‘pushing a trolley’.”
The referral also noted prior awards in relation to:
(a) neck – 10%;
(b) back – 20%;
(c) right arm at or above the elbow – 7.5%;
(d) left leg at or above the knee – 5%, and
(e) right leg at or above the knee – 5%.
Mr Kearney was employed as a cabinet maker with the respondent between 1984 and 2007.
In 2001 when pulling a kitchen cupboard on a flat top trolley, the wheels locked which the Medical Assessor said had the effect of “exacerbating his injury.” Mr Kearney had experienced “five to six separate injuries to his back and neck,” the Medical Assessor noted.[2]
[2] Appeal papers page 27.
The Medical Assessor found there was no loss of use of Mr Kearney’s arms (including the left arm) or legs and that Mr Kearney was suffering from a 10% impairment to his neck and 10% impairment to his back.
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.
The appellant requested to be re-examined by a Medical Assessor on the Appeal Panel. In view of the demonstrable error we have determined as described below, such a re-examination was arranged with Dr Stephenson on 25 September 2024.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit a statement from Mr Kearney dated 10 January 2024 on the basis that it seeks to criticise the amount of time he spent with the Medical Assessor and the conduct of the Medical Assessor during the assessment.
Mr Kearney submitted that the evidence was admissible pursuant to s 328(3) of the 1998 and that its contents made it clear that it would change the outcome of the case, citing Ross v Zurich Workers Compensation Insurance.[3]
[3] [2002] NSWWCCPD 7.
The respondent objected to the admission of this evidence. It submitted that, to summarise, there was no supporting evidence for the estimated times given by Mr Kearney for the commencement of the assessment nor for its duration. It submitted that it was “mere a critique” of the determination. We were referred to Petrovic v BC Serv No 14 Pty Limited and Ors[4] on the basis that the additional information is not information of a medical kind. This submission can be dealt with shortly as Hoeben J in that decision held that the restrictive definition relied on by the respondent did not apply once the matter was before an Appeal Panel.[5] The restrictive definition pertained to the option available to the delegate of the Registrar under s 237(3)(b), whereas s 328(3) applied when the matter came before a Medical Appeal Panel.
[4] [2007] NSWSC 1156.
[5] At [34]-[35].
The respondent also replied on the decisions of Marina Pitsonis v Registrar Workers Compensation Commission[6] and Lukacevic v Coates Hire Operations Pty Limited.[7]
[6] [2008] NSWCA 88 (wrongly cited).
[7] [2011] NSWCA 112.
The statement
Mr Kearney said that he attended the assessment on 8 December 2023 and that the appointment proceeded at 3.00pm as scheduled. Mr Kearney stated that he was not asked about pain in his arms or legs and when he mentioned that he was experiencing pain in his arms and legs he was told by the Medical Assessor that he was not there to assess Mr Kearney’s arms and legs, rather he was only assessing the neck and the back.
Mr Kearney said he was only in the Medical Assessor’s rooms for five minutes. He said:
“[The Medical Assessor] did not spend any time on the history of my injury and didn’t want a description of my current pain. He advised me that he would read that documentation later. He only spent about 2 – 3 minutes examining me.”
Mr Kearney attached two taxi certificates which demonstrated that he was picked up at the Sydney Domestic Airport and taken to his destination at 11:21 on 8 December 2023. The second invoice demonstrated that he arrived back at the airport at 15:40:29 from the city.
Mr Kearney referred only to the tax receipt by which he was delivered back to the airport. He said it took about half an hour to drive from where he got a taxi and that it would have taken him to get to that point from the Medical Assessor’s rooms. He concluded:[8]
“I refer to my statement dated 5 October 2023 where it was detailed that I still have ongoing pain, this situation is not changed but I was not able to share with [the Medical Assessor] as he was not interested in listening to what I had to say.”
DISCUSSION
[8] Appeal papers page 16.
As the Appeal Panel has determined that Mr Kearney should be re-examined in view of a demonstrable error made by the Medical Assessor, Mr Kearney’s account has become largely irrelevant and the content of his statement does not advance the matter. The fresh evidence is accordingly rejected.
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.
Further medical examination
Dr Stephenson of the Appeal Panel conducted an examination of the worker on 25 September 2024 and reported to the Appeal Panel.
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 MAC
The Medical Assessor recorded the terms of the referral as follows:
“Body parts / systems referred: Neck
Rightarm at or above the elbow Left arm at or above the elbow Back
Rightleg at or above the knee Left leg at or above the knee
Method of assessment: Table of Disabilities”
The Medical Assessor took the following history:
“4. HISTORY RELATING TO THE INJURY
• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Kearney told me that he was employed as a cabinet maker, making kitchens. He was employed between 1984 and 2007, when they ran into receivership. He told me he had had five to six separate injuries to his back and neck, usually lifting heavy benchtops. He can recall an incident in 2001 when he moved a kitchen cupboard on a flat top trolley and along corrugated concrete. The wheels locked as he was pulling the trolley, exacerbating his injury.”
In considering Mr Kearney’s present symptoms, the Medical Assessor said:[9]
“Neck: Mr Kearney has pain at the base of his neck, which radiates down between his
shoulder blades. He notices pain when he turns his neck to check lanes in the car.
Back: He has pain in the mid lumbar spine which does not radiate into his buttock or leg. Occasionally the pain radiates into his thoracolumbar spine.”
[9] Appeal papers page 27.
In his findings on physical examination the Medical Assessor said:[10]
“5. FINDINGS ON PHYSICAL EXAMINATION
On examination he was a well looking man in no obvious distress. Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Lower limb reflexes were symmetrical, with down going Babinskis. There was no clonus. Peripheral power was intact. Straight leg raise was to 90° in the sitting position.
Upper limb reflexes were similarly symmetrical with a negative Hoffman test. Power was normal in all muscle groups.
The range of motion in the cervical spine was normal with flexion and extension. There was slight reduction and asymmetry of rotation.
Flexion of the lumbar spine was to the knee. Mr Kearney indicates that when he is stretched and warmed up, he is able to reach his ankles. Rotation bilaterally was normal.”
[10] Appeal papers page 28.
In his summary at [7] of the MAC the Medical Assessor said:
“Mr Kearney has nonspecific neck and back pain after multiple injuries at work.”
At [10a] of the MAC the Medical Assessor set out the chart of his impairment assessment which, as indicated, assessed 0% for the right and left arm at or above the elbow and 0% for the right and left leg at or above the knee. The neck and the back were assessed at 10% each.
The Medical Assessor said that in making that assessment he had reviewed the material provided and made a detailed examination of the claimant.
At [10b] of the MAC the following appeared:[11]
“b. An explanation of my calculations, if applicable:
Mr Kearney has nonspecific neck and back pain. Recent imaging of his neck has
demonstrated only minor background degenerative changes consistent with age. He takes no medication. He continues to work as a Facilities Manager at TAFE.”
[11] Appeal papers page 29.
At [10c] of the MAC the Medical Assessor disagreed with the assessment by Dr Ghabrial, saying that 20% for the neck was excessive and, as Mr Kearney had not described any symptoms radiating into either upper limb, there was no impairment for the loss of use of function at or above the elbow. He also thought that the 30% assessment for the back impairment was excessive.
He said:[12]
“Again, Mr Kearney does not describe any symptoms radiating into the buttocks or either limb and hence, I have not assessed impairment for loss of function in either lower limb at or above the knee.”
[12] Appeal papers page 29.
The Medical Assessor gave an assessment of the left arm at or above the elbow.[13]
SUBMISSIONS
[13] Appeal papers page 31.
Mr Kearney
Mr Kearney referred to his prior settlements and their percentages. He contrasted them to the findings by the Medical Assessor and submitted that there was no material to support those findings.
Mr Kearney submitted that the Medical Assessor did not identify which “recent imaging” he referred to, neither did he provide a comparison with previous radiological examinations that were before him in the Application to Resolve a Dispute (ARD).
We were referred to the Medical Assessor’s comment that Mr Kearney was suffering from “degenerative changes consistent with age”. It was submitted that there was no explanation for that finding and that the Medical Assessor did not give adequate reasons to justify that diagnosis.
Mr Kearney referred to the report of the medico-legal expert retained by the respondent employer, Dr Robinson, who had found that the degenerative changes were work related and in fact were a substantial contributing factor to the injury because they developed during the course of employment. It was submitted that the Medical Assessor’s task was not to provide a diagnosis but rather to assess the injury, which had been accepted.
There was further an issue as to whether the 10% finding referred to the settlement.
We were referred to State of New South Wales (New South Wales Department of Education) v Kaur[14] and the statement by Campbell J that a Statement of Reasons is required to explain the actual path of reasoning “in sufficient detail to enable the court to see whether the opinion does or does not involve an error of law.”
[14] [2016] NSWSC 346.
Mr Kearney submitted that the Medical Assessor had failed to do so.
We were also referred to the uncontroversial proposition stated in Merza v Registrar Workers Compensation Commission[15] that a demonstrable error is any error readily apparent from the MAC and the referral.
[15] [2006] NSWSC 939.
Mr Kearney said he already complained in his statement of 5 October 2023 that he was suffering from increased neck pain, which should have justified an assessment over and above the 10% impairment that had already been assessed.
Mr Kearney submitted that there was a limited physical assessment of the lumbar spine. Mr Kearney also submitted that the Medical Assessor had erred in not providing detailed evidence supporting his differing opinion to the previous settlement.
We were referred to Lismore City Council ats William Graeme Elliott.[16]
[16] [2019] NSWWCCMA 137 at [28].
It was submitted that the Medical Assessor had erred in providing a different assessment to the previous Complying Agreement without indicating why that was the case.
It was further submitted that the Medical Assessor had erred when he described the assessment by Dr Ghabrial as excessive, but did not provide adequate reasons for doing so.
Mr Kearney argued that no proper assessment of the upper and lower limbs during examination had been made. There had been no mention of the lower limbs, and the upper limb, he submitted, was described in two sentences. Dr Kuru’s did not refer to the upper or lower limbs in his diagnosis it was noted. There was only one reference to both upper and lower limbs at [10a] of the MAC.
Mr Kearney again referred to his statement of 5 October 2023 in which he referred to specific problems which he was having in both legs. He conceded that the referral was limited to leg pain from the back injury but the Medical Assessor, Mr Kearney said, made no mention of that at all.
Mr Kearney noted that assessments under the Table of Disabilities were different from an assessment of WPI.
Mr Kearney then made a submission regarding the terms of the referral. We were referred to Wikaira v Registrar of Workers Compensation Commission of NSW & Anor[17] which was authority for the proposition that a Medical Assessor is required to assess the impairment for the accepted injury and not redefine the injury himself, as the Medical Assessor had done in this case.
[17] [2005] NSWSC 954.
Mr Kearney referred to his additional statement dated 10 January 2024, which we have not admitted.
The respondent
The respondent referred to a number of medical appeal cases which relied on the principle that a Medical Assessor was entitled to rely on his clinical findings and expertise to draw his own conclusions, provided the appropriate criteria were applied. He did not need to adopt the findings of other practitioners.
The respondent also noted that an assessment under the Table of Disabilities has long been accepted as a highly subjective task. The Medical Assessor’s reasoning for disagreeing with the medico-legal experts on both sides of the record were adequate, the respondent submitted.
The respondent referred us to the findings by the Medical Assessor and submitted that sufficient reasoning had been given.
It submitted that there was no requirement for a Medical Assessor to address why his assessment may have differed from an earlier settlement. It repeated the submissions it made with regard to the cervical spine.
With regard to the extremities the respondent noted the referral required the Medical Assessor to assess the right arm at or above the elbow and not the left arm. It conceded therefore that the Medical Assessor had erred in assessing the left arm at and above the elbow, but it contended that as there was a nil impairment assessment there was no need for it to appeal.
The respondent referred to the findings by the Medical Assessor that there had been no complaints about symptoms in the upper or lower limbs. The assessment undertaken by the Medical Assessor was accordingly appropriate, it was submitted.
The respondent noted the submissions by Mr Kearney that the Medical Assessor was required to undertake an assessment in accordance with the referral, and that he failed to do so. However, it submitted that a Medical Assessor was required to consider the injuries referred and to give an appropriate diagnosis, which did not need to be the same as those of other practitioners.
Moreover, a Medical Assessor is “still” required to use his own judgment and clinical skill when assessing an “accepted injury”.
DISCUSSION
There are a number of problems with this MAC.
The first is that the Medical Assessor did not accurately record the terms of the referral. He said that it sought assessment of:[18]
“Body parts / systems referred: Neck
Rightarm at or above the elbow Left arm at or above the elbow
Back
Rightleg at or above the knee Left leg at or above the knee.”
[18] Appeal papers page 26.
As noted above, the referral was actually in these terms:
“Body part/s referred: Permanent loss of use of the neck, back, right arm at or above the elbow (emanating from the neck), left leg at or above the knee (emanating from the back) and the right leg at or above the knee (emanating from the back).”
It is thus clear that the parties agreed that the assessment of the loss of use of the right arm and both legs in 2003[19] was related to the symptoms Mr Kearney was experiencing as a result of his neck and back pathology. By incorrectly reproducing the terms of the referral it appears that the Medical Assessor has not appreciated the basis of the dispute.
[19] The full description of injuries to the upper and lower extremities pursuant to the Table of Disabilities are listed as “at or above the elbow” or “at or above the knee.” We propose to refer to these injuries simply as to the respective arm or leg(s).
Indeed, the Medical Assessor did not describe any complaints of symptoms regarding the right arm and the legs when describing Mr Kearney’s present symptoms, which we noted at [33] above. Moreover, his examination of the upper limb and lower limb were concerned with objective criteria (Romberg, Trendelenburg, Babinski tests) and the Medical Assessor made no mention of any referred loss of use in terms of the referral. If he made such enquiry, he did not mention it in his examination, and in view of the terms of the referral his failure to do so constitutes a demonstrable error.
His failure in that respect also causes us to look at his comments at [10c] with some askance. The Medical Assessor said that Mr Kearney “had not described” any radiating symptoms into “either upper limb” from the neck when commenting on Dr Ghabrial’s report. Neither, the Medical Assessor said, had Mr Kearney “described any symptoms radiating into the buttocks or either limb.” We find it curious that the Medical Assessor would only refer to the question of radiating symptoms when discussing another practitioner’s opinion, in view of the necessity for him to examine whether there was any loss of use that “emanat[ed] from the neck…or the back” in the relevant limbs. Again, we note that the Medical Assessor referred to “either upper limb” when his task had been limited only to the right arm. His comment that radiating symptoms “had not [been] described” in these circumstances raises the question of whether the Medical Assessor made any enquiry in order to give Mr Kearney an opportunity to describe them.
Further, in the summary of injuries at [7] we were somewhat puzzled as to why the Medical Assessor only referred to neck and back pain and not the right arm or bilateral leg conditions which had been referred to him for assessment.
Whilst we note that assessments under the Table of Disabilities are subjective and not tied to specific criteria, nonetheless that subjectivity of itself requires a Medical Assessor to take some care to explain his findings. He appears to have applied the criteria of the objective guidelines that govern the assessment of the impairment under the WPI regime, as we noted above, whereas the Table of Disabilities has a much more subjective element.
For these reasons the MAC must be revoked, and a re-examination was necessary. Dr Stephenson’s report follows.
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W7568/23 |
Appellant: | Gregory Gerard Kearney |
Respondent: | Barnsley Cabinet Detailers Pty Ltd |
Date of Determination: | 25 September 2024 |
Examination Conducted By: | John Brian Stephenson |
Date of Examination: | 25 September 2024 |
1. The workers medical history, where it differs from previous records
On date of injury, he was in his employment as a manufacturer of kitchen cabinets. He was dragging a kitchen bench across a corrugated floor when he experienced the symptoms of neck and back pain and right elbow pain.
2. Additional history since the original Medical Assessment Certificate was performed
He continues to work.
3. Findings on clinical examination
On examination, the assessment is based on the Table of Disabilities.
Neck
Lateral tilt right 20 degrees, left 10 degrees.
Neck flexion 30 degrees.
Neck extension 30 degrees.
Neck rotation right 30 degrees, left 20 degrees.
There is no radiculopathy in the upper extremities related to the neck where power and sensation were satisfactory and deep tendon reflexes were present and active.
At the right elbow, there is a full range of motion. There is confirmation of lateral epicondylitis or tennis elbow, right elbow, with a positive compression test and a positive resistance test for that condition. There is a full range of motion right elbow.
Conclusion: There is 10% loss of use of the right arm below the elbow related to the injury condition of lateral epicondylitis.
Back
Since the injury on date on injury in 2001, there has been lumbar pain and pain radiating to posterior aspect of both legs down to both calves.
When standing, he would forward flex the fingers to each upper tibia level only, with lateral flexion to lower thigh level only. There is no deformity of the back.
The pain is across the lower back. There is no evidence of radiculopathy such as pain related to nerve compression, lumbar spine, but there is restriction in range of motion of the back.
Opinion
There is a 30% permanent impairment of the back. There is 10% permanent loss of use of the right leg at or above the knee concluding below the knee.
There is 10% permanent loss of his left leg at or above the knee including below the knee.
4. Results of any additional investigations since the original Medical Assessment Certificate
No. There had been no additional investigations.”
The Appeal Panel adopts Dr Stephenson’s report.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
Matter Number: | W7568/23 |
Applicant: | Gregorey Gerard Kearney |
Respondent: | Barnsley Cabinet Detailers Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Rob Kuru, and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| neck | 7/11/2001 | 15% | Nil | 15% |
| back | 7/11/2001 | 30% | nil | 30% |
| Right arm at or above the elbow | 7/11/2001 | 10% | nil | 10% |
| Right leg at or above the knee | 7/11/2001 | 10% | nil | 10% |
| Left leg at or above the knee | 7/11/2001 | 10% | nil | 10% |
0
8
0