Kladis v Jetstar Airways Pty Ltd
[2021] NSWPICMP 117
•7 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kladis v Jetstar Airways Pty Ltd [2021] NSWPICMP 117 |
| APPELLANT: | Debbie Kladis |
| RESPONDENT: | Jetstar Airways Pty Ltd |
| APPEAL PANEL: | Member Brett Batchelor Dr Richard Crane Dr Roger Pillemer |
| DATE OF DECISION: | 7 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against the deduction made by the Medical Assessor pursuant to section 323 of the 1998 Act from an agreed level of 31% WPI; deduction of 10% thereof for pre-existing asymptomatic degenerative change in the cervical spine made by the Medical Assessor; submission by appellant that no such deduction should be made; no explanation given by the Medical Assessor as to how the pre-existing condition contributed to the current level of WPI; |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 April 2021 Debbie Kladis (the appellant/Mrs Kladis) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian L Meakin, a Medical Assessor (formerly referred to as an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 15 March 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant injured her back on 6 June 2018 when working for the respondent at the check-in counter of an airport, checking in passengers and their luggage. When a bag fell off the conveyor belt, as she attempted to pull and lift the bag at the same time into a container on the conveyor belt, she felt the acute onset of pain in her low right neck and into her right shoulder. Mrs Kladis finished her shift and went home. She experienced increasing severe pain on the right side of her neck and onto the pad of her right shoulder the next morning.
Because of increasing severe pain, the appellant was conveyed to St George Hospital on 11 June 2018 where a CT scan was performed and a follow up arranged with a neurologist. On 12 June 2018 Mrs Kladis was admitted to St George Hospital where an MRI scan was performed. She underwent a right nerve root injection on 18 June 2018 which did not improve her symptoms, and subsequently came under the care of Dr Mark Davies, spinal surgeon.
Dr Davies operated on the appellant on 5 July 2018, carrying out a C6/7 anterior cervical decompression with fusion and internal fixation at that level via an anterior approach. He noted that there were multiple large sequestrated C6/7 disc fragments within the spinal canal and there was a neural exit foraminal compression of the right C7 nerve root.
Dr Davies noted that by 25 July 2018 Mrs Kladis’ pain had not improved and that she was experiencing extreme heaviness in her right arm and continuing numbness and dyesthesia in the right index finger. He carried out a further operation in August 2018, a C5/6 and C6/7 laminoforamenotomy with rhizolysis of the right C6 and C7 nerve root and sterotactic C6/7 lateral mass internal fixation and fusion with bone harvest from the left iliac crest. In December 2018 a peri-radicular nerve block on the left side was performed, suggested by Dr Davies because of the development of left shoulder pain. There was no lasting effect from this procedure.
Mrs Kladis obtained further opinions from Dr Raj Reddy, neurosurgeon, Dr Cordato, neurologist, Dr Yu, pain specialist, and Dr Ralph Mobbs, neurosurgeon. Dr Mobbs has suggested further surgery which the appellant has not undergone. She is currently under no formal treatment.
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 WorkCover Medical Assessment Guidelines 2006.
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 neither the appellant nor the respondent has requested a further medical examination and the Appeal Panel is of the opinion that there is sufficient material in the Appeal Papers with which to make its decision.
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. They are not repeated in full, but have been considered by the Appeal Panel. In summary, they are as follows.
Appellant
The appellant refers to a number of authorities in support of her submissions that the MAC of the Medical Assessor, Dr Meakin, contains a demonstrable error in that he failed to correctly apply the requirements of s 323 of the 1998 Act by failing to consider all the available evidence in light of the causation on which the section is focussed. He erred in making a deduction pursuant to that section and failed to give adequate reasons for his conclusion that a deduction should be made.
The appellant submits that the important point made by the authorities is that it is not sufficient to merely identify the pre-existing condition. It is necessary to explain how the pre-existing condition contributes to the impairment currently being assessed, and to explain how the presence of the pre-existing condition has resulted in a greater degree of impairment than would otherwise be the case. In answering that question, the appellant submits that it is not correct to conclude that the per-existing condition made the worker more vulnerable to injury. It must be demonstrated that the pre-existing condition directly contributes to the current impairment.
The appellant submits that it was not disputed that the need for the surgeries she underwent resulted from the work injury, and it follows that as there was damage to both discs as a result of such injury, that this was the cause of the arm symptoms and therefore the need for both surgeries.
The appellant makes no complaint about the level of impairment, 31% whole person impairment (WPI), assessed by the Medical Assessor. The demonstrable error made by him is in applying a 1/10th deduction to that impairment pursuant to s 323 of the 1998 Act.
The appellant submits that the Medical Assessor has not identified with any certainty the nature of any pre-existing condition, other that identifying asymptomatic C5/6 and C6/7 disc degeneration, nor has he explained why he considers the condition to be pre-existing. He has not explained how the pre-existing condition, that he considers to exist, contributes to the matters relevant to the impairment that now exists as a result of the work injury on 6 June 2018.
The appellant submits that the matters that were relevant to the assessment were the fact that she underwent surgery and revision surgery to treat the disc protrusion that had been caused by the injury. There was also persisting C6 radiculopathy. These matters are the result of the disc protrusions at C6/7 and C5/6 which was caused by the injury. The appellant submits that it is not apparent how the presence of degenerative change has contributed to the impairment assessed by the Medical Assessor. It is also not apparent how the supposed per-existing condition has resulted in a greater degree of impairment.
The appellant submits that the Medical Assessor has fallen into error by assuming that the mere existence of some degenerative change is enough to enact the statutory deduction. This is the same error as was made by the medical members of the Appeal Panel in Cole v Wenaline Pty Ltd[1].
[1] [2010] NSWSC 78 (Cole).
The appellant submits that in circumstances where any pre-existing condition is asymptomatic and therefore not productive of any pre-existing impairment, it is necessary to explain how the pre-existing condition contributes to the current impairment. The appellant submits that the Medical Assessor has not attempted to do this.
The appellant submits that at [11. b.] of the MAC, the Medical Assessor is required to give reasons how the pre-existing condition contributes to the matters that were taken into account when assessing the WPI that results from the injury. The appellant submits that the Medical Assessor did not give any reason that related the supposed pre-existing condition with the matters considered when assessing impairment. Those matters were the need for surgery, the second surgery, the persisting radiculopathy and the impairment of activities of daily living. The appellant submits that the Medical Assessor did not address any those matters, but merely noted the presence of a pre-existing condition which he accepted was asymptomatic.
The appellant submits that the Medical Assessor failed to consider and give reasons as to how the pre-existing condition contributed, if at all, to the current level of WPI resulting from the injury on 6 June 2018. The question of whether the prior condition contributes to the assessment currently being assessed, has not been addressed by the Medical Assessor.
For the foregoing reasons, the appellant submits that any pre-existing condition has not resulted in a greater degree of impairment than would otherwise have been the case and has not contributed to the degree of impairment that results from the work injury. In the circumstances, there should not be any deduction.
The appellant submits that the MAC of 15 March 2021 should be set aside and a new certificate issued certifying 31% WPI with no deduction pursuant to s 323 of the 1998 Act.
Respondent
In reply, the respondent summarises the appellant’s grounds of appeal, refers to relevant clauses of the Guidelines, the authorities of Cullen v Woodbrae Holdings Pty Ltd[2] and Vitaz v Westform (NSW) Pty Ltd[3], and notes what the Medial Assessor said at the foot of p 7 of the MAC in respect of the CT scan of the cervical spine dated 11 June 2018 and MRI scan performed 13 June 2018[4]. Reference is also made to Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation)[5] in respect of the steps required of a Medical Assessor in determining what if any proportion of an impairment assessed by him or her is due to a pre-existing condition.
[2] [2015] NSWSC 1416 (Cullen).
[3] [2011] NSWCA 254.
[4] Appeal Papers p 30.
[5] [2013] NSWSC 365 (Elcheikh)
The respondent submits that the Medical Assessor in this case has assessed the appellant’s permanent impairment, including the application of a deduction under s 323, properly and in accordance with all requirements.
In response to the appellant’s submission that Dr Meakin has not identified with any certainty the nature and extent of any pre-existing condition, other than identifying asymptomatic C5/6 and C6/7 disc degeneration, the respondent draws attention to the diagnosis of Dr John Bentivoglio, who independently medically examined the appellant on 25 February 2020 and produced a report the following day[6]. That was an opinion that the appellant had suffered aggravation caused by pre-existing degenerative changes with possibly a disc protrusion caused by the specific incident described by Mrs Kladis[7]. The respondent submits that this evidence supports a finding of pre-existing condition in the cervical spine, based on the available medical and radiological evidence.
[6] Appeal Papers p 59.
[7] Appeal Papers p 63.
Referring to Cole, the respondent submits that Dr Meakin appropriately took into account the appellant’s medical history when he determined the level of impairment, using his medical judgement, knowledge and experience in determining firstly the level of impairment, and secondly what proportion of permanent impairment was due to a pre-existing condition.
The respondent submits that there is no requirement that a Medical Assessor review medical evidence which pre-dates the injury in order to make a deduction pursuant to s 323 (Vannini v Worldwide Demolitions Pty Ltd[8]). In taking the requires steps, the Medical Assessor exercised his clinical judgement in determining a diagnosis and making a deduction for pre-existing conditions in accordance with [1.6] of the Guidelines.
[8] [2018] NSWCA 324.
The respondent submits that it was open to the Medical Assessor to determine that the appropriate deductible proportion as being 1/10th on the basis of his clinical examination and the materials before him.
The respondent submits that the appellant has failed to make out any ground of appeal either under s 327(3) (c) or (d) of the 1998 Act, and that the appeal should be dismissed. A re-examination of the appellant is not necessary.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC (see Siddik v Workcover Authority of NSW[9] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[10])
[9] [2008] NSWCA 116.
[10] [2013] NSWSC 1792.
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.
There is no dispute between the parties in respect of the assessment of the Medical Assessor that the appellant’s current level of impairment is 31% WPI. Dr Meakin sets his calculations leading to this figure at [10.b.] on p 7 of the MAC. He concludes that page with the following observation:
“Although Ms Kladis states that prior to the 5 June 2018 she had no history of previous or painful or traumatic disorder, it is noted that the CT Scan of the cervical spine on the 11 June 2018, and the MRI Scan performed on the 13 June 2018, demonstrate signficant [sic] longer standing pathology at the C6/7 level with right exit nerve root foraminal stenosis. I accept that Ms Kladis was asymptomatic . It is my intention to persue [sic] a 1/10th deductible portion with reference to section 323.”
On the following page of the MAC, Dr Meakin at [10.c.] comments on the other medical opinions submitted by the parties, including the opinion of Dr John Bentivoglio in his report dated 26 February 2020. The comment is as follows:
“Dr John Bentivoglio, Orthopaedic Surgeon, reviewed Ms Kladis on the 26 February 2020. Dr Bentivoglio, at the time of his assessment notes clinical evidence consistent with a DRE Category 4 impairment of the cervical spine, stating that there was a 25% base impairment. He notes evidence of a post-operative radiculopathy and reports a 30% whole person impairment.”
In his assessment, Dr Bentivoglio made no deduction for a pre-existing condition pursuant to s 323 of the 1998 Act.
Earlier in his report Dr Bentivoglio referred to the radiological investigations of June 2018. He said:
“I viewed results of a CT scan taken of her cervical spine performed in June 2018. The conclusion was that there is a right paracentral disc bulge at the C6/7 level with minor central canal stenosis and likely impingement on the exiting C7 nerve root.
A subsequent MRI scan taken of her cervical spine in June 2018 was reported as showing posterior disc protrusions at the C3/4, C4/5 and CS/6 level with mild central canal stenosis. There is a right sided posterior disc herniation at the C6/7 level with moderate right canal exit foraminal narrowing stenosis. There are no acute changes seen of the right C7 exiting nerve root.”[11][11] Appeal Papers pp 61-62.
When asked to give his diagnosis and the facts on which it was based, Dr Bentivoglio said:
“Diagnosis is that of aggravation caused by pre-existing degenerative changes with possibly a C6/7 disc protrusion caused by the specific incident that she describes. Diagnosis is made on the history provided by Ms Kladis, physical examination, as well CT and MRI scan findings.”
When asked for his opinion as to the causal relationship between the appellant’s injuries, disabilities impairments “…and the assault” [sic], Dr Bentivoglio said:
“It would appear all of Ms Kladis’ ongoing complaints relate to the specific injury that she had to her person on 6 June 2018.”[12]
[12] Appeal Papers p 63.
The Panel noted the opinion of Dr Bentivoglio, who referred to the incident aggravating the pre-existent degenerative changes around the C6/7 disc, but did not consider this contribution was of such a degree as to warrant a deduction in the assessed impairment.
Whilst it is acknowledged that a Medical Assessor must make his own assessment of WPI and is not obliged to accept other opinions and findings submitted by the parties, it is notable that Dr Bentivoglio, whilst having before him the results of the radiological investigations carried out in June 2018, made no deduction from his assessment for a pre-existing condition. Dr Meakin does not comment upon the fact that Dr Bentivoglio made no deduction for a pre-existing condition. Dr Meakin does note the assessment of Dr Woo dated 22 June 2020 of 31% WPI and a 1/10th deductible portion therefrom[13].
[13] Appeal Papers pp 331 and 337.
Dr Meakin at [11.a.(i)] of the MAC notes the scanned evidence in June 2018 of C5/6 and C6/7 disc degeneration which was previously asymptomatic prior to the work incident on 6 June 2018, and at [11.b.(i)], when commenting on how the previous injury, pre-existing condition or abnormality contributes to the matters that were taken into account when assessing WPI that results from injury, says:
“I acknowledge that Ms Kladis was asymptomatic prior to the 6 June 2018. The CT Scan and MRI Scan performed one week after the date of injury confirm a pre-existing but asymptomatic pathology.”
The Appeal Panel is of the view that Dr Meakin has not explained how the pre-existing condition contributes to the current impairment. He has assumed that this pre-existing asymptomatic degenerative condition has so contributed, without explanation, and on this basis assessed the deductible proportion at 1/10th. The Panel accepts the appellant’s submission in this regard referred to at [24] above.
It is not sufficient that a pre-existing condition predisposes a worker, or makes a worker more vulnerable to injury. It must be demonstrated that the pre-existing condition directly contributes to the current impairment (see Cole at [30-31], [33] and [36], noting in that case, there was an earlier injury, rather than a condition to consider, and Cullen at [45] -[46]).
The Appeal Panel is also of the view that the degenerative condition revealed in the CT scan and MRI performed in June 2018 was not significant having regard to:
(a) the appellant’s age, 44 years as of June 2018;
(b) the fact, accepted by the Medical Assessor, that she was asymptomatic prior to the injury of 6 June 2018;
(c) the significant nature of that injury. Mrs Kladis felt an acute onset of pain in her low right neck and into her right shoulder as she attempted to pull and lift at the same time a heavy bag, which had become stuck on the conveyor belt at the check-in counter, off the conveyor belt. At [44] of her statement dated 3 February 2021[14], Mrs Kladis describes having to pick up “…the heavy duffle bag and put it into the container manually” , and
(d) the fact that this incident caused the right sided posterior disc herniation at C6/7 necessitating the surgery on 5 July 2018 when Dr Davies carried out a C6/7 anterior cervical decompression with fusion and internal fixation at that level via an anterior approach. He noted that there were multiple large sequestrated C6/7 disc fragments within the spinal canal and there was a neural exit foraminal compression of the right C7 nerve root.
[14] Appeal Papers p 48.
The Appeal Panel is not satisfied that the pre-existing degenerative condition made a difference to the outcome in terms of the degree of impairment resulting from the work injury dated 6 June 2018 (see Campbell J in Ryder v Sundance Bakehouse[15]).
[15] [2015] NSWSC 525 at [45].
In Elcheikh Schmidt J at [126]-[127] set out what must be determined by a medical specialist under s 323 as follows:
“126 As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
·Firstly, what the extent of the resulting impairment is.
·Secondly, whether the pre-existing condition contributed to the impairment.
·Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.
127 The statutory scheme recognises that this may be a difficult exercise and so provides a mechanism for its resolution, in s 323(2). If a medical specialist considers that it to be either difficult or costly to determine the contribution to the impairment which the pre-existing condition has made, the assumption provided by s 323(2) has to be applied by the medical specialist. That is, the contribution has to be assessed to be 10%, unless that is considered to be at odds with the available evidence.”
The Appeal Panel is of the view that the Medical Assessor did not undertake these steps in the current matter, but as stated in [44] above, assumed that the pre-existing degenerative condition contributed to the impairment assessed by him and made a 1/10th deduction from such impairment.
The Appeal Panel finds that, for the foregoing reasons, the MAC contains a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 March 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Ian L Meakin 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 NSW workers compensation guidelines | 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. Cervical Spine | 6 June 2018 | Chapter 4, | Table 15.5, Page 392, AMA 5 | 31% | Nil | 31% |
| Total % WPI (the Combined Table values of all sub-totals) | 31% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Brett Batchelor
Member
De Richard Crane
Medical Assessor
Dr Roger Pillemer
Medical Assessor
7 July 2021
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