Kokontis v Gate Gourmet Riverside Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Kokontis v Gate Gourmet Riverside Pty Ltd [2023] NSWPICMP 532
APPELLANT:	Chris Kokontis
RESPONDENT:	Gate Gourmet Riverside Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	25 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor (MA) assessed appellant had 0% whole person impairment (WPI) from workplace injury; appellant submitted MA exceeded his jurisdiction by implicitly finding appellant had suffered injury a subsequent injury; appellant submitted that insofar as MA based his assessment on the appellant being able to carry out heavy duties in his employment subsequent to his work injury the MA denied him procedural fairness by not allowing him to provide evidence and make submissions regarding that matter; appellant submitted that insofar as MA based his assessment on there being no entry in his GP’s records of his making complaint of pain to injured body part MA denied him procedural fairness by not allowing him to provide evidence and make submissions regarding that matter; Appeal Panel held it is within MA’s province when assessing a worker’s WPI to consider matters that happened after work injury including whether worker suffered a subsequent work or non-work injury, but MA did not in this case make any such finding; Appeal Panel held a MA is required to afford procedural fairness to a worker; Appeal Panel held MA in this case did not deny appellant procedural fairness by having regard to fact that appellant carried out heavy duties after work injury because MA made direct enquiries with appellant about that; Appeal Panel noted that a key factor in the MA assessing appellant had 0% WPI from his injury was that there was no entry in GP’s record of appellant complaining of pain; MA did not enquire about that with the appellant and consequently denied appellant procedural fairness; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 June 2023 Chris Kokontis, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 June 2023.
The appellant relies on the following grounds for 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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for 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 (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).

RELEVANT FACTUAL BACKGROUND

The appellant was employed by Gate Gourmet Riverside Pty Ltd, the respondent, as an equipment handler and truck driver. On 14 February 2005 he was injured when the pneumatic powered roller door of a truck descended onto his upper back pinning him to the floor of the truck.
His solicitors arranged for him to be examined by surgeon Dr W G D Patrick on
18 November 2021. In a report dated 21 December 2021 Dr Patrick advised the appellant’s solicitors the following with respect to the injuries the appellant suffered in the incident on
14 February 2005:
“The diagnoses now of Mr Kokontis’ injuries as a result of this accident of 14 February 2005 are that he does have significant ongoing muscular guarding of significance at the thoracic spine, and at the lumbar spine he clearly satisfies criteria for assessment as a DRE III attracting an impairment assessment with the demonstrated left lower extremity radiculopathy. He also satisfies criteria for restriction in range of active motion at right hip as referred to above, and also he has a readily demonstrated collateral laxity (mild) at left knee.”
Dr Patrick further advised the appellant’s solicitors that he assessed the appellant had 21% whole person impairment (WPI) from those injuries, comprising 5% WPI relating to the thoracic spine, 11% WPI relating to the lumbar spine, 5% WPI relating to the right lower extremity (hip) and 3% WPI relating to the left lower extremity (knee).
On 7 February 2022 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 21% WPI resulting from the injuries he suffered on 14 February 2005. The appellant’s solicitors provided the insurer with a copy of Dr Patrick’s report in support of the claim the appellant made.
The respondent’s solicitors then arranged for the appellant to be examined by orthopaedic surgeon Dr Frank Machart on 28 June 2022. Dr Machart in a report dated 7 July 2022 advised the respondent’s solicitors that the most likely diagnosis of the injuries the appellant sustained in the incident of 2005 was a “soft tissue injury to the thoracic spine, lumbar spine and to the left knee”. Dr Machart advised that he assessed the appellant had 6% WPI from his injuries comprising 5% WPI relating to the lumbar spine and 1% WPI relating to the appellant’s left knee. Dr Machart advised that he assessed the appellant had 0% WPI relating to his thoracic spine and 0% WPI relating to his hips.
On 26 August 2022 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it disputed he was entitled to “permanent impairment lump sum compensation”. It advised him that it accepted he suffered an injury to his lumbar spine on 14 February 2005 but disputed he suffered an injury to his thoracic spine, right hip and left knee. It advised him that Dr Machart “considered that your lumbar spine impairment was 5% WPI”. It advised him that this “is not greater than 10% WPI as required by s66(1) of the Workers Compensation Act 1987”.
Subsequently the appellant instituted proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation under s 66 of the 1987 Act for permanent impairment from his injury and also determine a claim he had also made for weekly payments of compensation under s 38 of the 1987 Act for an incapacity he said he has from his injury.
The matter was referred to a Senior Member of the Commission, namely Ms Kerry Haddock, who held an arbitration hearing on 21 April 2023 and who on 15 May 2023 made the following determination, as recorded in a Certificate of Determination issued on that date:
“The Commission determines:
1. There is an award for the respondent for the claims for injury to the right hip and left knee.
2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a)            Date of injury:             14 February 2005.
(b)            Body system/parts:
(i) lumbar spine, and
(ii) thoracic spine.
(c) Method of assessment:         whole person impairment.”
On 15 May 2023 a delegate of the President duly referred the matter to the Medical Assessor.

MEDICAL ASSESSMENT CERTIFICATE

The Medical Assessor examined the appellant on 29 May 2023.
He recorded in the MAC the history he obtained, which included how the appellant suffered his injuries on 14 February 2005. The Medical Assessor recorded that the appellant reported having no problems with his back prior to February 2005 and having had no subsequent injuries to his back. The Medical Assessor also noted that, subsequent to 14 February 2005, the appellant suffered injuries to his right hand in 2006, his calf muscle in 2007 and a ruptured bicep in 2014. The Medical Assessor recorded that the appellant informed him that he ruptured his bicep while pulling a unit above head height that weighed between 60 and 70kg.
The Medical Assessor noted that the appellant said he returned to work six months after
14 February 2005 doing restricted duties for two years and thereafter performing normal duties until a few years before he was made redundant, which the Appeal Panel observes was on 5 November 2020. The Medical Assessor noted that in the last few years of the appellant’s employment, the appellant did not do work that involved heavy lifting.
The Medical Assessor said he questioned the appellant “in detail with regard to the nature and conditions of his employment over the years”. The Medical Assessor recorded that the appellant’s answer was that his work was very heavy and that he would regularly on a daily basis have to lift 30 to 40kg containers from a gallery onto a trolley, and then push the trolley to aircraft, and then load the containers onto the aircraft. The Medical Assessor recorded that when he asked the appellant how he was able to continue with that work despite significant symptoms and ongoing restrictions, the appellant answered by saying “he was brought up in a military fashion and he ‘worked through the pain’, and was tenacious and a very hard worker”.
The Medical Assessor recorded his findings from his physical examination of the appellant. The Appeal Panel observes that no issue is raised in this appeal with respect to the findings the Medical Assessor made.
The Medical Assessor considered the appellant’s impairment with respect to his thoracic spine met the criteria for DRE Category II, for which there is a base rating of 5% WPI. The Medical Assessor also considered that the appellant’s lumbar spine met the criteria for DRE Category II for which there is also a base rating of 5% WPI. The Medical Assessor considered that an additional 2% WPI ought to be added to the impairment he assessed the appellant had relating to his lumbar spine on account of the interference the appellant’s injury had on the appellant’s activities of daily living. That accordingly resulted in the Medical Assessor assessing the appellant had 7% WPI relating to his lumbar spine.
The Appeal Panel observes that no issue has been raised regarding these assessments the Medical Assessor made.
The Medical Assessor expressed his opinion that the symptoms the appellant exhibited, by reference to which he assessed the appellant’s permanent impairment relating to his thoracic and lumbar spine, were not the result of the injury on 14 February 2005. The Medical Assessor said that the incident on 14 February 2005 would have resulted in soft tissue injuries to the appellant’s thoracic and lumbar spine and that those injuries “would long since have settled down”. The Medical Assessor noted that the appellant’s symptoms became worse in the last three to four years and that the appellant had localised tenderness in both the thoracic and lumbar regions. The Medical Assessor suggested that further investigations needed to be done to determine the cause of those specific symptoms. The Medical Assessor said that those symptoms are not related to the appellant’s injury on
14 February 2005.
The Medical Assessor observed that the appellant’s general practitioner (GP) made an entry on 14 February 2005 in his clinical records that the appellant had sustained an injury to his back when he was trapped and that his back was crushed and that he also injured his right leg. The Appeal Panel observes that the general practitioner’s records that were provided to the Medical Assessor were those kept by the Marrickville Metro Medical Centre. The Appeal Panel also observes from the material before it that the appellant also consulted another GP, namely Dr Macarounas, with respect to his injury. It is apparent from the material before the Appeal Panel that Dr Macarounas did not practice out of the Marrickville Metro Medical Centre. Further, the material before the Appeal Panel also establishes that Dr Macarounas retired in 2018 and his records could not be obtained and hence they were not before the Medical Assessor, and of course are not before the Appeal Panel.
The Medical Assessor recorded that following the entry in the GP’s records on
14 February 2005, which to repeat was an entry in the records kept by the Marrickville Metro Medical Centre, the next entry was on 20 June 2006 in which the appellant complained of an injury to his left little finger. The Medical Assessor observed there was no mention of any problems between those entries relating to the appellant’s lumbar spine. The Medical Assessor also noted that “there are multiple general practitioner entries yearly from 2008 until 2020, the last entry being 1 November 2021, and after scrutiny of all these entries, which are multiple in any particular year, there is no mention in any of them of any back pain”.
The Medical Assessor reasoned from the fact that the appellant subsequent to his injury was lifting over 30 to 40kg units and was pushing and pulling 70 to 100kg trolleys and food carts and from the fact that there was no entry in the clinical records maintained by the Marrickville Metro Medical Centre relating to the appellant complaining of back pain after
14 February 2005, “that any injuries as a result of the incident of 14 February 2005 would long since have settled”.
The Medical Assessor assessed the appellant had 0%WPI from his injury on
14 February 2005.

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 appellant to undergo a further medical examination. This is because neither party raised an issue regarding the Medical Assessor’s finding from his examination of the appellant. Further, the Appeal Panel is of the view, based on its examination of the MAC, that the Medical Assessor conducted a thorough examination of the appellant. Consequently, the Appeal Panel can rely upon the Medical Assessor’s finding from his examination to correct what the Appeal Panel has discerned is an error in the MAC. The Appeal Panel’s reasons for finding error in the MAC are detailed below under the heading Findings and Reasons.

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 submitted that the Medical Assessor implicitly found that he suffered another injury and by so doing exceeded his jurisdiction. The appellant submitted the Medical Assessor’s implicit finding of his suffering another injury was contrary to the evidence and constituted an error.
The appellant submitted that the Medical Assessor’s finding that his injuries had “long since settled” was contrary to the evidence that he had persistent symptoms after 14 February 2005 and that he struggled with his work and “pushed through”.
The appellant submitted that the Medical Assessor failed to have regard to the fact that the records of Dr Macarounas were not available. The appellant submitted the Medical Assessor’s conclusion that he made no complaints over the years was not able to be made because of the records of Dr Macarounas were not available.
The appellant submitted that the Medical Assessor failed to consider whether “any additional damage that may occurred subsequently was causally related to the original injury on
14 February 2005” and that “this constitutes an error”.
The appellant submitted that the Medical Assessor denied him procedural fairness by concluding that his permanent impairment did not result from the incident on
14 February 2005 because the Medical Assessor did not allow him “to make submissions or produce further evidence, lay or medical on this point”. The appellant submitted “there was no evidence at all that would have alerted [him] that the Medical Assessor would have made such a finding”.
In reply, the respondent submitted that the Medical Assessor did not make an implicit finding that the appellant suffered a subsequent injury, but rather the Medical Assessor found that the soft tissue injuries that he considered the appellant suffered on 14 February 2005 had long since settled. The respondent submitted that the Medical Assessor summarised his reasons for finding that.
The respondent also submitted that there is no basis to the appellant’s submissions that the Medical Assessor failed to have regard to the evidence relating to the appellant’s symptoms after 14 February 2005, as the Medical Assessor detailed in the MAC the symptoms that the appellant did suffer after 14 February 2005.
The respondent submitted that the Medical Assessor did not make a finding that the appellant did not make complaints of pain to his GP, but rather what the Medical Assessor observed was that there was no record of any complaints in the years after the appellant suffered injury.
The respondent submitted the Medical Assessor was under no obligation to hypothesise about the possibility of further injuries causally related to the appellant’s injury on 14 February 2005.
The respondent submitted that the Medical Assessor was under no obligation to invite submissions or further evidence.

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.
Given that a Medical Assessor must assess the degree of a worker’s permanent impairment that results from a workplace injury, a Medical Assessor must necessarily have regard to what occurs to the worker subsequent to the worker suffering the injury if what has occurred affects the impairment the worker has from the injury. What may have occurred to a worker subsequent to the worker suffering injury can include myriad matters, such as whether a worker has suffered a further work injury, whether a worker has suffered a non-work injury, whether there has been a development or progression of age related degeneration; or whether the worker has suffered the onset of a disease unrelated to the workplace injury but nevertheless affecting the function and impairment of a worker from an injury. That list is not exhaustive but merely an indication by the Appeal Panel, which is an expert panel, to indicate the several matters that may arise subsequent to a worker suffering injury that would need to be considered by a Medical Assessor when assessing the degree of permanent impairment a worker has that results from the workplace injury.
That said however, the Medical Assessor in this case did not, contrary to what the appellant submitted, implicitly find that the appellant suffered a subsequent injury. What the Medical Assessor found was that the appellant had recovered from what the Medical Assessor diagnosed were soft tissue injuries that the appellant suffered in the incident of
14 February 2005. That necessarily meant that the Medical Assessor was of the view that the permanent impairment he assessed the appellant had must have resulted from something other than the workplace injury on 14 February 2005. The Medical Assessor however did not specify or speculate what the appellant’s permanent impairment resulted from, and he certainly did not make a finding that it was from a second injury.

That approach of the Medical Assessor was not, of itself, an error.
It is the case, as the appellant has submitted, that the Medical Assessor was required to afford procedural fairness to him when the Medical Assessor was conducting his examination and assessing the appellant’s permanent impairment.[1] That obligation however did not require, as the appellant submitted, the Medical Assessor providing the appellant with the opportunity to make submissions or to produce further evidence with respect to the assessment the Medical Assessor might make. The obligation to provide procedural fairness to the appellant did require the Medical Assessor to raise matters directly with the appellant that were relevant to his assessment of the appellant’s impairment and that were unaddressed in the evidence before the Medical Assessor. The Medical Assessor did that with respect to the issue of the heavy work the appellant was able to do in his employment for several years despite suffering significant symptoms and ongoing restrictions. That was an issue that the Medical Assessor considered relevant in terms of his assessing the degree of the appellant’s permanent impairment that resulted from his injury. The Medical Assessor rightfully put that to the appellant and ascertained the appellant’s response regarding that.
[1] Hutchison v Wyong Race Club Ltd [2020] NSWSC 1592 at [74]-[78] and the cases cited therein.
It would seem however, that the Medical Assessor did not enquire directly of the appellant whether the appellant had complained either to Dr Macarounas or to the GPs he consulted at the Marrickville Metro Medical Centre, of any symptoms he suffered from his injuries subsequent to his initial consultation at the Marrickville Medical Centre on 14 February 2005. Because this was a matter that factored into the Medical Assessor’s conclusion that the appellant suffered soft tissue injuries which had long ago settled, and because that issue was not addressed in the evidence, other than there being no entries in the medical records of the Marrickville Metro Medical Centre of complaint by the appellant subsequent to
14 February 2005, it was incumbent upon the Medical Assessor to enquire directly of the appellant regarding this in order to ensure he was afforded procedural fairness. The appellant was entitled to address the Medical Assessor on whether he made any complaint of pain to his GPs subsequent to 14 February 2005. The Medical Assessor’s failure to facilitate that was an error.
The Medical Assessor also made a further error, in the Appeal Panel’s view. Whilst the Medical Assessor obviously concluded that the appellant’s permanent impairment relating to his thoracic and lumbar spine was due to something other than his injury, which thing the Medical Assessor did not specify, the Medical Assessor did not consider whether the permanent impairment that the appellant had from this subsequent other factor was also causally related to the injury the appellant suffered on 14 February 2005.
Common law principles of causation in tort are to be applied in when assessing the permanent impairment of a worker.[2] In this case it was found by a Senior Member Haddock that the appellant suffered an injury to his thoracic spine and to his lumbar spine. The mechanics by which that occurred, which is a pneumatic roller door descending on to the appellant’s back and pinning him to the floor of his truck such that he could not escape, was likely to have resulted in a significant injury to the appellant, in the Appeal Panel’s view.
[2] NSW Department of Education v Johnson [2019] NSWCA 321 at [55] and Calman v Commissioner of Police [1999] HCA 60 at [38]-[40].
The appellant’s evidence was that he continued to suffer symptoms subsequent. The appellant’s answer to the Medical Assessor’s enquiry why he was able to undertake arduous duties in his employment after injury, which was to the effect that he was stoic, is, in the Appeal Panel’s view, a plausible explanation. The Appeal Panel considers the Medical Assessor was wrong to conclude that the appellant’s injury had resolved long before the assessment.
It is also likely, in the Appeal Panel’s view, that age-related degeneration subsequently developed in the appellant’s spine. This, as well as the appellant performing arduous duties in his work, would likely have had an adverse impact on the appellant’s thoracic spine and lumbar spine so as to impair him.
That was on the background, however, of the appellant having suffered a significant injury to his thoracic and lumbar spine on 14 February 2005.
The Appeal Panel considers that the Medical Assessor, in those circumstances, was wrong not to find that the appellant’s injury to his thoracic and lumbar spine on 14 February 2005 made a material contribution to the permanent impairment he now has. As just indicated, the Appeal Panel considers that other factors have also likely contributed, but the incident on
14 February 2005 continues to make a material contribution to his current permanent impairment. The further work the appellant did and the likely development of age related degeneration, just worsened his impairment.
The Medical Assessor consequently erred by not attributing the appellant’s permanent impairment to the injury.
The Appeal Panel also observes that at the time of injury the appellant was 41 or 42 years of age. There are no radiological investigations in evidence to determine the likely condition of his spine at the time he suffered injury. Dr Patrick obtained a history that prior to the injury on 14 February 2005, the appellant had suffered a minor injury to his right knee and had tendon surgery in his right arm. He did not take a history of the appellant suffering any symptoms in his spine prior to the injury on 14 February 2005. Dr Machart also did not take a history of the appellant suffering any symptoms before 2005 in his spine.
In that circumstance, the Appeal Panel considers that the appellant did not have any pre-existing condition in his lumbar spine or thoracic spine at the time he suffered injury on
14 February 2005, and hence s 323(1) of the 1998 Act is not engaged in this case.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 June 2023 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

Matter number:	W511/23
Applicant:	Chris Kokontis
Respondent:	Gare Gourmet Riverside 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 Roger Pillemer 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)
Lumbar spine	14 February 2005	Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-3	7%	-	7%
Thoracic spine	14 February 2005	Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-4	5%	-	5%
Total % WPI (the Combined Table values of all sub-totals)					12%

[2023] NSWPICMP 532

25 October 2023