Kingston v Kingston Landformers Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Kingston v Kingston Landformers Pty Ltd [2023] NSWPICMP 445
APPELLANT:	Joshua Peter Kingston
RESPONDENT:	Kingston Landformers Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	12 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 323; the Panel agreed there was no evidence that the appellant had any problems with the left upper extremity since the original dislocation when he was a “youngster”; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 June 2023 Joshua Peter Kingston (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
22 May 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 assessment was made on the basis of incorrect criteria, and
·        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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

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 the following evidence:
(a) further statement from the appellant dated 16 June 2023.
The appellant submits that the evidence is relevant to the deduction made by the Medical Assessor in respect of a prior injury to his left shoulder. The appellant submits that the evidence was not available and could not reasonably have been obtained because the Medical Assessor did not take a history of the appellant’s condition prior to the subject injury, and the supplementary statement addresses this.
In addition, the appellant notes that the information had not been required previously, as no other doctor had made any deduction in accordance with s 323 of the 1998 Act, and as the Medical Assessor failed to obtain an accurate history, the information is now relevant.
The respondent submits:
“The matters raised by the appellant in his supplementary statement dated 16 June 2023 relate to evidentiary matters that were within his knowledge before the medical assessment appeal or that could have reasonably been supplied by the appellant before the medical assessment.
The appellant’s signed statement dated 16 June 2023 does not meet the relevant criteria for additional relevant information within the meaning of s327(3)(b) of the 1998 Act.”
Ordinarily, the Commission’s practice is not to admit further statements from workers challenging the assessment made by a Medical Assessor. In the present circumstances however, the Panel notes the submission that the information had not been required previously, as no other doctor had made any deduction in accordance with s 323 of the 1998 Act, such that the information is now relevant. The Medical Assessor’s history is also at odds with his assessment.
For these reasons, the Appeal Panel determines that the following evidence should be received on the appeal: Further statement from the appellant dated 16 June 2023.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in making a deduction pursuant to s 323 of the 1998 Act.
In reply, the respondent submits that the Medical Assessor properly considered whether the pre-existing injury contributed to the permanent impairment and there was no demonstrable error made.

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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the right upper extremity (shoulder), the left upper extremity (shoulder) and scarring resulting from an injury on 13 May 2019.
The Medical Assessor obtained the following history:
“Mr Kingston related that on 13/05/19, he was getting down from a tractor. He described that this was a very large machine called a TJ New Holland 650 horsepower tractor. This is a large articulated device. As he was climbing down from the cab, which is a task he had done on many occasions, his feet slipped on the ladder and he was left hanging on a handrail by his left hand. This resulted in a severe traction injury to his left shoulder, which apparently dislocated anteriorly. He dropped further onto the ground and described that he landed on his right side, although he does not remember hurting himself any further than with the left shoulder. Apparently the left shoulder relocated.
It was not until about ten days later that he managed to see his doctor. The left shoulder was still extremely painful. He was referred to Specialist Orthopaedic Surgeon, Dr Oliver Khoo. On 17/07/19, Dr Khoo carried out an arthroscopy on the left shoulder with a labral repair. Mr Kingston was in a sling with his left arm for the next three months. He continued to have physiotherapy, although the shoulder remained painful and resolution was slow.
About a year or so after this injury, he started experiencing pain with his right shoulder. This was further investigated. It was identified that there was a minor feature with the long head of biceps tendon…”
After setting out details of Mr Kingston’s current symptoms and treatment, the Medical Assessor then turned to consider the issue of any prior injury or condition. He said:
“When he was a youngster in Year 7, he apparently had a left shoulder dislocation. This does not seem to have resulted in any subsequent dysfunction of the shoulder.”
Given the limited issue on appeal, we do not propose to set out in detail Mr Kingston’s prior work history, general health, social activities and activities of daily living. Nor is it necessary to document the Medical Assessor’s findings on examination nor his primary assessments since they are not the subject of appeal.
The Medical Assessor then summarised the injuries and diagnoses, noting that
“Mr Kingston’s presentation was completely consistent”.
When asked: “Is any proportion of… whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the Medical Assessor said: “Yes”.
He added: “Attention is drawn to the previous dislocation of his left shoulder when he was a youngster. It is likely that this would have resulted in a predisposition to further shoulder injury… As a result, there is a one-tenth deduction.”
In commenting upon the other medical opinions, the Medical Assessor said:
“My whole person impairment assessment is very similar to that of Specialist Orthopaedic Surgeon, Dr James Bodel in his reports of 30/05/19 and 19/10/20.
Specialist Orthopaedic Surgeon, Dr Graeme Doig in his report of 17/04/21 also has a similar finding with the left shoulder. With the right shoulder, he assesses 0% and similarly 0% for scarring.”
The appellant submits as follows:
(a)    Dr Anderson’s findings do not, as a matter of law, support the making of any deduction under section 323 for a number of reasons.
(b)    At page 2 of the report, Dr Anderson records the following: “When he was a youngster in Year 7, he apparently had a left shoulder dislocation. This does not seem to have resulted in any subsequent dysfunction of the shoulder”.
(c)    Despite the recording of no subsequent dysfunction. Dr Anderson opines: “Attention is drawn to the previous dislocation of his left shoulder when he was a youngster. It is likely that this would have resulted in a predisposition to further shoulder injury”.
(d)    Dr Anderson has not recorded a history of having asked the appellant whether he had any further problems regarding his left shoulder following his dislocation as a “youngster”.
(e)    There is no indication either in the clinical notes or from the appellant of any problems with the left upper extremity since the original dislocation when he was a “youngster”.
(f)    In his report dated 19 October 2020, Dr Bodel records: “…this gentleman does volunteer that he has dislocated the [left] shoulder previously, some time in his teenage years while at school. He seems to recall one or two dislocations and then after that the shoulder was stable again. Prior to this injury he had been doing a lot of weight training and had been quite impresses [sic] with his physique as a result of that. The shoulder was stable and not causing him any trouble”.
(g)    In his statement dated 6 November 2020, which was filed in the Application to Resolve a Dispute and available to Dr Anderson, the appellant recorded that prior to his injury, he used to enjoy “playing the drums, going to the gym and playing sport. I am now unable to play the drums, throw a ball or lift anything of weight”.
(h)    The appellant has previously been assessed for WPI both by the insurer and on his behalf. Neither of the previous doctors had made a s 323 deduction, and as such, it was not considered relevant.
(i)    In his supplementary statement dated 16 June 2023 he sets out the following:
(i)following his left shoulder dislocation in around 2005, he had no further issues with the left shoulder;
(ii)the appellant undertook intensive training in order to join the Australian Army in around 2009, and then undertook further intensive training as a rifleman for a further three months;
(iii)the appellant worked as a gym instructor from around 2003 to 2013, and
(iv)at no time following the original dislocation did he have any issues with (let alone permanent impairment of) his left shoulder prior to the subject injury.
(j)    Dr Anderson has referred to a “predisposition to further injury” of the appellant’s left shoulder. He has not referred to any permanent impairment having arisen from the appellant’s previous dislocation, nor of him suffering from any pre-existing condition or abnormality.
As noted earlier, the respondent submits that no errors were made, and that the Medical Assessor properly considered whether the pre-existing injury contributed to the permanent impairment and there was no demonstrable error made.
For the reasons stated above, we agreed to admit the appellant’s supplementary statement.
It is clear from that statement that the appellant has been very physically active since his original shoulder dislocations when he was about 11 or 12 years old. He is currently 33 years old. So for the best part of 20 years, he has undertaken significant physical activities such as a gym instructor for about 10 years, and army training.
In our view, he would have been unable to do such activities for that period of time if he had ongoing problems with his left shoulder.
In Cole v Wenaline Pty Limited [2010] NSWSC 78, (Cole) Schmidt J set out the process a Medical Assessor is required to adopt in making a deduction for pre-existing conditions. In that matter, it was noted:
“For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment…The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. (our emphasis). The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined.”
True it is that it is not necessary for a pre-existing condition to have been symptomatic prior to the subject injury in order to attract a deduction pursuant to s 323 of the 1998 Act; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.
We accept of course that a Medical Assessor is not bound by the opinions of other doctors. In addition, the Guidelines require a Medical Assessor to assess a claimant on the day of the assessment, and to have regard to all of the evidence.
In our view the appellant’s childhood injury or complaint did not cause a permanent impairment and did not cause or contribute to the impairment suffered by the appellant following the subject injury.
For these reasons, and consistent with the decision in Cole, the Appeal Panel has determined that the MAC issued on 22 May 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 after 1 January 2002

Matter number:	W1918/21
Applicant:	Joshua Peter Kingston
Respondent:	Kingston Landformers 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 Tim Anderson 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 system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Right upper extremity (shoulder) Left upper extremity (shoulder)	13/05/19	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	3% 7%	0% 0%	3% 7%
2. Scarring	13/05/19	P 74 T 14.1	1%
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					11%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2023] NSWPICMP 445

12 September 2023