Kingham v Sydney Catholic Schools Ltd
[2025] NSWPICMP 98
•18 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kingham v Sydney Catholic Schools Ltd [2025] NSWPICMP 98 |
| APPELLANT: | Justine Kingham |
| RESPONDENT: | Dr Dan White, Executive Director of Catholic Schools and Representative for Catholic Education Office Sydney (now known as Sydney Catholic Schools Ltd atf the Sydney Catholic Schools Trust) |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Henley Harrison |
| MEDICAL ASSESSOR: | Paul Niall |
| DATE OF DECISION: | 18 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal seeking increase in 2018 Medical Assessment Certificate (MAC) because of deterioration in appellant’s ability to speak; Held – MAC revoked as expert opinions from both parties ad idem that there had been a deterioration and as to the appropriate whole person impairment; MAC revoked and fresh certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
This matter comes before the Appeal Panel as a result of an application by Ms Kingham for a Certificate of Determination dated 12 November 2018 to be vacated.
The Certificate of Determination authorised payment of an amount of compensation in respect of 19% whole person impairment as a result of an injury sustained on 11 July 2014.
This Certificate issued following a determination by a Medical Assessor, Dr Brian J Williams on 8 October 2018 for injury to the ear, nose, throat and related structures.
On 10 September 2024, a further Certificate of Determination was issued by Member Adam Halstead which rescinded the Certificate of Determination of 12 November 2018.[1]
[1] Appeal papers page 925.
On 12 September 2024 the Ms Kingham lodged an application to appeal against the decision of the Medical Assessor dated 8 October 2018.
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):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment.
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
This matter was referred on 5 September 2018 to the Medical Assessor for an assessment of whole person impairment caused by injury to the “Ear, Nose, Throat and Related Structures (voice, speech)” which occurred on “11 July 2014 (nature and conditions of employment)”.
Ms Kingham was employed as a school teacher by the respondent. She was an Early Childhood Teacher from 2007 until 2009. In 2009 she did a university course and became a full time Primary School Teacher for the respondent.
She noticed over the next three year period that she would have voice problems, which would resolve. She had symptoms of laryngitis, a hoarse voice, with no sore throat or upper respiratory tract infection and these episodes would last about two weeks.
In 2012, Ms Kingham came to sinus surgery for “pressure on her face (forehead and cheeks)” and a deviated nasal septum. This helped and she did not have any further voice problems until 2014.
She noted that after reading to students she was breathless, light headed and had difficulty speaking to her students. She had a feeling of exhaustion and she noted that her voice was weak and husky on and off. That lasted for two terms and she consulted her general practitioner (GP), but she did not get any treatment.
She developed a sinus infection with a cough at the end of Term 2 and began to feel unwell with nausea, a blocked nose and green mucopurulent rhinorrhea. She had a fungal sinus infection for six weeks and was treated with medication for her symptoms.
Whilst she recovered from the infection, her voice did not, and she was unable to work for two to five years. She underwent speech therapy treatment at St Vincent's Hospital.
At the end of 2014 she trialled botox unsuccessfully and in April of 2015 had medialisation, which helped a little to make her voice stronger. She underwent a laser myectomy of the thyroarytenoid the muscles on both sides. She continued to have Botox under general anesthetic, which would help for about two weeks when she noticed her voice was louder with less breaks.
In November 2016 she had an injection of RPCA every 10 weeks, and general anesthetics at various hospitals. She had her last injection in July 2018 at the time of the MAC.
She went back to work in January 2017, working 3.5 days per week for eight hours a day.
She used a microphone and she could not do large playground duty or large classes.
In restaurants, cafes and coffee shops she is unable to raise her voice above the noise and is unable to communicate unless someone is sitting next to her.
She said her voice is breaking, is slow and tires.
The Medical Assessor found 19% WPI on 12 November 2018.
PRELIMINARY REVIEW
As a result of preliminary review the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because it was common ground that
Ms Kingham’s condition had deteriorated since the MAC, and no purpose would have been achieved by such an examination.
Fresh evidence
The reason for this application is that, as noted above, it is common ground that
Ms Kingham's condition has deteriorated, the evidence for which is contained in medico-legal opinions from both parties, both of which concur that she now suffers from 27% WPI as a result of that deterioration, and Ms Kingham’s latest statement.Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
Further statement from Ms Kingham
On 9 June 2023 Ms Kingham made a further statement.[2] She referred to earlier statements made prior to the issue of the MAC, and she noted the assessment by the Medical Assessor of 19% WPI.
[2] Appeal papers page 88.
She said:
“I believe that my voice injury has significantly worsened since this assessment.”
She said that on reading her prior statements she realised that her voice injury has become worse in the last five years. She said from [10]:[3]
“10. Five years on, my voice is much weaker and there is not a lot of "up voice" time. By this term, I mean the periods of time when I have a better strength and quality of voice.
11. At the time of my previous assessment, I had undergone 13 botox injections, whereas I have now had 32, and including all the trial botox injections that I had at St Vincent's, this number would be around 50.
12. In addition, it is taking longer and longer for me to recover from each botox injection. It is currently taking 4-5 weeks after each injection for me to recover. At the time of my previous assessment, I was receiving 10 units of botox which has over the years been increased to 25 units.
13. I eventually became resistant to the normal type of botox and had to try a new one. This worked the first time but then I needed an additional filler as well and this is basically not working anymore.”
[3] Appeal papers page 413.
She stated that her specialist Dr Novakovic advised that the Botox injections would be less and less effective. She said at [17]:
“It is hard for me to breathe and talk now. I constantly feel like there is a hand around the front of my throat choking me."
Relevant medical reports
The Panel notes the material lodged in the 1,368-page case before us. Much of the material has been lodged in triplicate, but on analysis, we are satisfied that the medico-legal opinions accurately reflect the effect of those statements and medical reports.
Dr Robert Payten
Dr Robert Payten, ear nose and throat specialist, supplied a report dated 28 June 2023.[4] The history he took was consistent with both that taken by the Medical Assessor in 2018 and
Ms Kingham's statement. Dr Payten had access to the reports of Dr Novakovic, who gave a good summary of Ms Kingham’s progress since first seen in 2014.[4] Appeal papers page 49.
Dr Payten examined Ms Kingham on 26 June 2023. Dr Payten diagnosed Ms Kingham's condition as follows:
“In my opinion she has the condition of spasmodic dysphonia which is a form of laryngeal dystonia. In addition, there is compensatory muscle tension dysphonia causing abnormal opening of the larynx during speech and air leak.”
Dr Payten noted that Ms Kingham's voice had progressively become worse and worse, which required increased concentration of Botox injections to achieve the same result as was originally obtained with small doses.
His assessment was a WPI of 27%.
Dr Ken Howison
For the respondent Dr Ken Howison, ENT surgeon reported on 28 March 2024.[5] Dr Howison took a consistent history, noting that Ms Kingham's voice had deteriorated since the MAC on 8 October 2018.
[5] Appeal papers page 1355.
Dr Howison noted Dr Payten's assessment of 27% WPI. He noted that despite her treatment, Ms Kingham’s voice had continued to deteriorate. His assessment was also of 27% whole person impairment.
Decision regarding additional evidence
There has been no objection to the admission of the fresh evidence since 2019 and clearly in order to be able to properly assess the application in a case involving deterioration pursuant to s 327(c)(i) such evidence is admissible.
It will be seen from the submissions below that the respondent has co-operated in having this matter properly considered. The additional evidence is admitted.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
We have referred to the finding of the Medical Assessor and it can be seen that there is no suggestion that the original medical assessment was incorrect when it issued in 2018.
SUBMISSIONS
Ms Kingham
Ms Kingham’s submissions were prepared by Mr Philip Perry of counsel, and appeared to have been lodged in furtherance of the successful reconsideration application before Member Halstead.
Mr Perry noted that both Dr Payten and Dr Howison were ad idem as to the fact of the deterioration and the appropriate WPI that was now applicable. He said:[6]
“10. The treating specialist, A/Prof Daniel Novakovic, reported that the applicant’s condition deteriorated between mid 2018 and early 2023 in particular, the symptoms of laryngeal dystonia significantly deteriorated after October 2018…
11. A/Prof Novakovic stated at paragraph 9 of his report of 24 April 2023…
The condition became increasingly difficult to manage, requiring larger doses and a different formulation of botulinum toxin type A over time. She also developed progressive symptoms of difficulty breathing and breathy voice after treatment which required alterations in the treatment regime.
12. Dr Payten, reporting on 28 June 2023, found the applicant to fall within Class 4, 60% to 84% for functional efficiency, using the same tables as were used by Dr Williams in 2018. Applying table 11–9, Dr Payten noted that the assessed 70% voice/speech impairment gave rise to 24% WPI. Applying the same increment for the effects of treatment, the assessment was 27%....
13. The respondent’s solicitor, Mr. Murray, had the applicant assessed by Dr. Ken Howison on 28 March 2024. Dr Howison’s report of that date is attached to the letter of 22 July 2024 from the respondent. Mr Murray’s letter to the applicant’s solicitor is amongst the documents before the PIC.
14. It can be seen that Dr Howison is in agreement with Dr Payton. The applicant’s condition is now such that it merits an assessment of 27%.
15. A/Prof Novakovic’s evidence that there has been a deterioration since 2018 is strongly corroborated by the evidence of Dr Payten and of Dr Howison. It is important then to note that the 2013 and 2014 assessments are not simply different views of the same condition. If the associate professor is accepted, there has been a deterioration and that deterioration explains the higher assessments.”
[6] Appeal papers page 89.
The respondent submitted:[7]
“7. The respondent accepts that its qualified expert has, effectively, confirmed the presence of a deterioration in the degree of impairment since the prior assessment of 19% WPI made by Dr Williams, of the same degree as that assessed by the worker’s qualified expert Dr Payten.
8. S327 WIM Act 1998 requires the Panel to form is own view on whether the condition of the appellant has deteriorated since the prior MAC and whether that deterioration has resulted from the subject injury, in order to allow the appeal and revoke the prior MAC.
9. The respondent makes no positive submission against such a conclusion, noting the assessment of Dr Howison.”
[7] Appeal papers page 425.
DECISION
We concur that the approach taken by the respondent is proper and appropriate to a model litigant. We are satisfied that there has been a deterioration in Ms Kingham’s condition and in view of the unanimity of the expert specialists we find that the increase in WPI should be reflected by the revocation of the MAC, and a fresh certificate being issued for 27%.
For these reasons, the Appeal Panel has determined that the MAC issued on
8 October 2018 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 after 1 January 2002
Matter number: | 4203/18 |
Applicant: | Justine Kingham |
Respondent: | Dr Dan White, Executive Director of Catholic Schools and Representative for Catholic Education Office Sydney (now known as Sydney Catholic Schools Ltd atf the Sydney Catholic Schools Trust) |
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 Brian J Williams and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Voice/ Speech | 11.7.2014 | Para 1.32 | Chapter 11 Table 11.8, p265 | 27% | 0% | 27% |
| Total % WPI (the Combined Table values of all sub-totals) | 27% | |||||
0