Kominkovski v Wollongong City Council

DETERMINATION OF APPEAL PANEL
CITATION:	Kominkovski v Wollongong City Council [2024] NSWPICMP 548
APPELLANT:	Linda Kominkovski
RESPONDENT:	Wollongong City Council
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	7 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding appellant had pre-existing condition; whether MA erred by not assuming, in accordance with section 323(2) that deductible proportion for section 323(1) is 10%; whether MA provided adequate reasons for finding appellant had pre-existing condition and for making deduction under section 323(1) of one-third; Held – MA was correct to find appellant had pre-existing condition and by not making assumption; MA did not provide adequate reasons for finding appellant had pre-existing condition; Medical Appeal Panel corrected that error by providing reasons for finding appellant had pre-existing condition; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

Linda Kominkovski and Wollongong City Council (the Council) have appealed against a medical assessment of Dr Tim Anderson (the Medical Assessor) made of various medical disputes that a delegate of the President of the Personal Injury Commission (the Commission) referred to him on 8 January 2024. The Medical Assessor’s assessment of those medical disputes is recorded in a Medical Assessment Certificate (MAC) that he issued on 26 March 2024.
The medical disputes relate to an injury Ms Kominkovski suffered on 1 February 2015. She described that injury in an Application to Resolve a Dispute (ARD) that her lawyers lodged with the Commission on her behalf on 24 August 2023 in the following terms:
“The Applicant has an agreed date of injury (February or March 2015), as per the annexed Certificate of Determination dated 18 September 2018, with a right elbow injury arising from her employment with Wollongong City Council, along with consequential left and right shoulder injuries.”
The Certificate of Determination (COD) to which reference is made in that description is a COD that the Commission’s predecessor, the Workers Compensation Commission, issued on 18 September 2018 recording the following determinations that Arbitrator Dalley made with the consent of Ms Kominkovski and the Council:
“1. The Application to Resolve a Dispute is amended in Part 4 to allege injuries:
a) date of injury 1 – February or March 2015 to the right elbow and consequential injury to the left shoulder and right shoulder.
b) date of injury 2 - 8 December 2015 injury to the left shoulder (deemed) resulting from the nature and conditions of employment.
c) date of injury 3 - 19 July 2017 injury to the right shoulder (deemed) resulting from nature and conditions of employment.
2.      Award for the respondent in respect of injury resulting from the nature and conditions of employment deemed to have occurred on 8 December 2015 and/or 19 July 2017.
3.      The respondent is to pay reasonably necessary treatment expenses resulting from the injury sustained on February or March 2015 including expenses related to the right shoulder surgery proposed by Dr Jansen.
4.      The applicant discontinues her claim for weekly payments.”
The medical disputes that a delegate of the President referred to the Medical Assessor, following the COD being issued, was described in the referral in this way:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 1 February 2015- deemed
Body part/s referred: Right upper extremity (elbow)
Right upper extremity (shoulder) – consequential injury
Left upper extremity (shoulder) – consequential injury
Method of assessment: Whole person impairment”
In the MAC the Medical Assessor certified that Ms Kominkovski’s impairment is permanent and the degree of her permanent impairment is fully ascertainable.
He also recorded that he assessed Ms Kominkovski’s permanent impairment relating to her right shoulder as 22% whole person impairment (WPI), relating to her right elbow as 0% WPI and relating to her left elbow as 8% WPI.
His assessment of Ms Kominkovski’s impairment of her right shoulder was done by reference to the fact that she had a joint replacement, that is it was done by reference to the criteria of Table 16-27 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th Ed (AMA5). His assessment of Ms Kominkovski’s impairment relating to her left shoulder was done by the restricted range of movement she had in that joint.
The Medical Assessor explained that he assessed Ms Kominkovski did not have any impairment relating to her right elbow because, from his examination of her, he “was unable to demonstrate any significant dysfunction with the elbows in either movement or neurological function”. He concluded that Ms Kominkovski did not therefore have “significant dysfunction registering a whole person impairment of the right elbow complex”.
Neither party in their respective appeals have raised any issue regarding the matters set out in paragraphs 5-8 above. Both parties in their respective appeals have challenged the Medical Assessor’s assessment of the medical dispute defined in s 319(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), that is “whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion”.
How the Medical Assessor summarised Ms Kominkovski’s injury at Part 7 of the MAC has relevance to that matter. It was as follows:
“Mrs Kominkovski gives a history of extensive physically arduous work, which has involved both shoulders over a long period of years. Around early 2015, she experienced severe dysfunction of both shoulders. It has been identified that she had extensive dysfunction of a multiplicity of large and important tendons in the right shoulder with virtually no hope of managing this conservatively or with standard repair surgery. As a result, it was agreed to carry out a shoulder joint replacement, which was conducted on 25/03/21 and has given her a reasonable (although certainly not good) result.
With the left shoulder, a repair attempt was made, which seems to have been at least
partially successful, although Mrs Kominkovski still has very gross dysfunction of the left shoulder complex.”
Also relevant is that within the history the Medical Assessor recorded in the MAC, he noted that “there is no history of any clinical issue associated with her shoulders, either before or since the development of this very complex condition”.
Also relevant is that in answer to the standard question within the form prescribed for a Medical Assessment Certificate, “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, a pre-existing condition or abnormality?”, the Medical Assessor answered “no”. Further, in answer to the standard question “If so, please indicate which body parts/system is affected by the previous injury, pre-existing condition or abnormality”, the Medical Assessor answered “not applicable”.
The Medical Assessor identified within Part 6 of the MAC that radiologist Dr Ron Shnier had, on 17 November 2016, reviewed a MRI scan Ms Kominkovski had done of her right shoulder. The Appeal Panel notes that the MRI scan that Dr Shnier reviewed was done on 10 February 2016. The Medical Assessor noted that Dr Shnier considered that scan revealed long standing degenerative changes that were “aggravated, although not reasonably caused by her job”.
The Medical Assessor also noted an arthrogram of Ms Kominkovski’s right shoulder was done on 5 July 2017, and the Medical Assessor commented that this revealed “extensive tears of the infraspinatus, supraspinatus and long head of biceps with extensive retraction”. The Medical Assessor also noted that a plain X-ray of Ms Kominkovski’s right shoulder was done on 26 March 2021, which the Medical Assessor noted showed a shoulder joint replacement that appeared to be in a satisfactory position.
Under the heading “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the Medical Assessor said the following:
“Obviously there has been extensive dysfunction of both shoulders before the development of the assessable whole person impairments. Nevertheless, there is no (absolutely none) convincing history of any pre-existing shoulder dysfunction on either side.
I am therefore persuaded that it would be fair and appropriate to perform a deduction of one-third of the basic whole person impairment of each shoulder. This would reduce the right shoulder whole person impairment from 22% down to 15% and on the left side, from 8% down to 5%. The combined value would therefore be 19%.
This deduction is applied in the table.”
In Table 2 that forms part of the MAC, the Medical Assessor recorded that he assessed the permanent impairment of Ms Kominkovski with respect to her right shoulder as 22% from which he made a deduction of one-third to record that he assessed the degree of her permanent impairment from her work injury as 15% WPI. The Medical Assessor also recorded that he had assessed Ms Kominkovski had 8% WPI relating to her left upper extremity (shoulder) from which he made a deduction of one-third to record that he had assessed the degree of permanent impairment from her work injury as 5% WPI. The Medical Assessor also recorded that he had assessed Ms Kominkovski had 0% WPI relating to her right upper extremity (elbow) from the injury. He recorded that the impairments he assessed Ms Kominkovski had from her injury combined to 19% WPI and he certified that this is what he assessed the degree of Ms Kominkovski’s permanent impairment was from her injury.
As said, both parties contest the deduction that the Medical Assessor made under s 323(1) of the 1998 Act. Both parties agree that the MAC contains a demonstrable error with respect to this matter because the Medical Assessor did not adequately explain his reasonings for the deduction he made.
Both parties rely on the following grounds for appeal under s 327(3) of the 1998 Act:
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
Ms Kominkovski’s submissions were drafted by her solicitor. Paraphrasing them to provide a summary, they are that the Medical Assessor failed to explain the path of his reasoning to make a one-third deduction. She further submitted that the only reasoning the Medical Assessor provided was that deduction is “fair and appropriate”. Ms Kominkovski submitted that the Medical Assessor did not identify any prior incidents, injuries or illnesses that would constitute pre-existing conditions and that nothing within the history the Medical Assessor obtained identifies a pre-existing condition or that would explain the magnitude of the s 323 deduction he made.
Ms Kominkovski said the only evidence of a pre-existing condition or abnormality is the reference in the report of Dr Shnier to degenerative change. Ms Kominkovski also said the report is a medical legal report and was “not independent or objective” and consequently has minimal prohibitive value.
Ms Kominkovski submitted that there was no basis to make a s 323 deduction. Alternatively, Ms Kominkovski said that the deduction to be made under s 323(1) ought to have been assumed to be 10% in accordance with s 323(2) of the 1998 Act.
The Council’s submissions were drafted by its solicitors. Paraphrasing them, they are that the Medical Assessor did identify a pre-existing condition. The Council submitted that the reports on the several radiological investigations that were in the evidence before the Medical Assessor demonstrate that Ms Kominkovski had pre-existing pathology in both shoulders unrelated to her work injury.
The Council submitted that it could not be assumed pursuant to s 323(2) of the 1998 Act that the deductible portion for the purpose of s 323(1) is 10% because that would be at odds with the evidence, that evidence being the reports on the radiological investigations. The Council submitted that based on the totality of the medical evidence, the deduction to be made under s 323(1) should be 75%.
The Council submitted that with respect to Ms Kominkovski’s shoulders what was referred to the Medical Assessor to assess related to “consequential conditions of Ms Kominkovski’s shoulders”. The Council submitted that if any part of the permanent impairment the Medical Assessor assessed Ms Kominkovski had in her shoulders was due to “an injury resulting from nature and conditions of her employment” then that should be deducted from the assessment. The Council submitted that the Medical Assessor “did not clearly distinguish the cause of the consequential left and right shoulder injuries”.

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 Ms Kominkovski to undergo a further medical examination. This is because the only issues raised in the parties’ respective appeals relate to the deduction the Medical Assessor made under s 323(1) of the 1998 Act and the material before the Appeal Panel is sufficient for it to deal with these issues. No point would be served by further examining Ms Kominkovski.

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.

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.
Ms Kominkovski’s injury that was the subject of the referral to the Medical Assessor was an injury she suffered in a single incident when she bumped her right elbow on a steel support of a bunk bed and from which she subsequently developed conditions in her shoulders. That is apparent from a statement she signed on 20 June 2023 and the COD the Workers Compensation Commission issued on 18 September 2018 and the description of injury within the ARD that her solicitors lodged with the Commission to initiate the current proceedings before the Commission.
For s 323(1) to be engaged there must exist, at the date of that incident, which the parties have agreed is 1 February 2015, an actual condition. Further, a portion of Ms Kominkovski’s permanent impairment from her injury must be due to that pre-existing condition. Saying that another way, if at 1 February 2015 there existed in Ms Kominkovski’s shoulders a condition, even if asymptomatic at that time, and that condition is a contributing factor to the permanent impairment she now suffers from her injury, then there must be a deduction for that portion of her permanent impairment that is due to the pre-existing condition.[1]
[1] Cullen v Woodbrae Holdings Ptd Ltd [2015] NSWSC 1416 at [46]; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43].
The Appeal Panel considers that there is abundant evidence that as at 1 February 2015 Ms Kominkovski had degenerative changes in both her shoulders which constitutes a pre-existing condition or a pre-existing abnormality. That evidence is the reports of the radiological investigations that Ms Kominkovski had done on her shoulders. Those investigations started with an ultrasound of Ms Kominkovski’s right shoulder on 10 December 2015, which revealed a complete tear and retraction of her long head of biceps and a complete tear of the rest of the rotator cuff tendon with degenerative changes in the AC joint and moderate fusion in the posterior joint and thickening of the subacromial-subdeltoid bursa. An X-ray also done on that date revealed Ms Kominkovski’s right shoulder had significant arthritis in the right gleno-humeral joint and moderate to severe arthritis in the AC joint. An ultrasound of her left shoulder also done on that date revealed a full thickness tear of the subscapularis, marked thickening and hypo-echogenicity of the infraspinatus, a possible partial thickness delamination tear, a complete tear of the supraspinatus tendon, and minor arthritis in the AC joint and thickening and moderate distension of the subacromial-subdeltoid bursa.
An MRI arthrogram of Ms Kominkovski’s right shoulder that was done on 10 February 2016 was reported to reveal a chronic massive rotator cuff tear involving full thickness and full width tears of both infraspinatus and supraspinatus, a partial thickness deep surface tear involving the superior mid-fibres of the subscapularis on a background of diffuse attenuation, moderate distal/insertional tendinosis, marked fatty atrophy of the superior muscle bulk of subscapularis, and rupture of the biceps anchor with retraction of the long head to the biceps tendon distal to the bicipital groove.
An MRI of Ms Kominkovski’s left shoulder that was done on 23 February 2016 revealed extensive rotator cuff disruption with completely torn and retracted supraspinatus and infraspinatus tendons and associated muscle atrophy and a thickening of the subscapularis tendon.
The degeneration that these investigations revealed in Ms Kominkovski’s shoulders in late 2015 and early 2016 was so extensive that it could not have occurred since 1 February 2015. Indeed, in all likelihood what the investigations revealed is that the entirety of the degeneration would have been present in Ms Kominkovski’s shoulders at 1 February 2015.
Ms Kominkovski had no symptoms and no apparent impairment of function of her shoulders preceding 1 February 2015. Noting the parties agree that Ms Kominkovski’s injury to her right elbow on 1 February 2015 resulted in her developing consequential conditions in her shoulders, they necessarily agree that the altered use and function of her shoulders subsequent to Ms Kominkovski’s injury to her right elbow on 1 February 2015 has led to symptoms in her shoulders. That is what constitutes the consequential condition in her shoulders. The symptoms that Ms Kominkovski developed manifest from the existing and extensive degenerative changes in both Ms Kominkovski’s shoulders. Hence, her consequential condition, in the Appeal Panel’s view, comprise the symptoms she suffers from the existing and extensive degenerative change in both Ms Kominkovski’s shoulders.
The Medical Assessor’s explanation for his finding that Ms Kominkovski had a pre-existing condition in her shoulders at the time of injury is ambiguous at best. The Medical Assessor obtained a history of Ms Kominkovski not having a history of any clinical issue associated with her shoulders before her injury, and based on the evidence before him, that is the case. As noted earlier, he also answered the standard question at 8e of the MAC, as “no”, that is that no proportion of Ms Kominkovski’s permanent impairment from her injury was due to a pre-existing condition. He said, “there has been extensive dysfunction of both shoulders before the development of the assessable whole person impairment”. He then went on to say, “there is no (absolutely none) convincing history of any pre-existing shoulder dysfunction of either side”. Those last two statements, which appear in his explanation for making a deduction under s 323(1) of the 1998 Act, seem to contradict each other.

The Appeal Panel consequently agrees with both parties’ submissions that the Medical Assessor did not properly explain his reasons for finding Ms Kominkovski had a pre-existing condition and consequently did not properly explain why s 323(1) could be engaged. This is a demonstrable error, which requires correction by the Appeal Panel.
That correction is done by the Appeal Panel explaining why s 323(1) of the 1998 Act is to be engaged. That explanation is partly contained in the Appeal Panel’s reasons for finding that the MAC contains a demonstrable error. It is that the evidence clearly demonstrates, in the Appeal Panel’s view, that as at 1 February 2015 Ms Kominkovski had extensive degenerative changes in both her shoulders. Notwithstanding those changes were then not generating symptoms in her shoulders, they now contribute to the permanent impairment she has from her injury. With respect to her right shoulder, the need for her surgery was a direct consequence of the extensive degenerative changes in her right shoulder coupled with the symptoms that she commenced to experience after suffering her injury to her right elbow on 1 February 2015. The permanent impairment she has been assessed to have in her right shoulder is based on her having an artificial joint. Her having an artificial joint is a consequence of both the pre-existing condition she had in her right shoulder and the symptoms she suffered after 1 February 2015. Without developing the symptoms she could have foregone having a right shoulder replacement, but without the degenerative changes in her shoulders she would never have suffered symptoms and would never have needed a right shoulder replacement.
Hence, a proportion of Ms Kominkovski’s permanent impairment from her injury is directly related to the pre-existing and extensive degeneration in her right shoulder.
With respect to Ms Kominkovski’s left shoulder, her permanent impairment is due to the restricted range of movement she has in her shoulder. That restriction of movement she has in her left shoulder is directly related to the degenerative changes she has in her shoulder. Without the degeneration in her left shoulder, she would not have impeded movement of the joint. Consequently, a proportion of her permanent impairment of her left shoulder is due to that pre-existing condition.
Regarding what proportion of her permanent impairment is due to the pre-existing conditions in her shoulders, the Appeal Panel considers that s 323(2) of the 1998 Act cannot be engaged such that the proportion can be assumed to be 10%. This is because to make that assumption would be at odds with the evidence. That evidence, again, is the reports of the radiological investigations that Ms Kominkovski had of her shoulders in late 2015 and early 2016. That evidence, as has been said repeatedly, revealed the degeneration in her shoulders was extensive at the time she suffered the injury to her right elbow. It accounts for much more than 10% of her current impairment.
The deduction that the Appeal Panel must make under s 323(1) requires the Appeal Panel, which is an expert panel that includes an orthopaedic surgeon and an occupational health specialist, to exercise its clinical judgment based on the evidence before it. That will permit some latitude of opinion.[2]
[2] Vannini v World Wide Demolitions Pty Ltd [2019] NSWCA 324 at [91]-[92] and [96].
As said, the Appeal Panel considers that the contribution of Ms Kominkovski’s pre-existing conditions in her shoulders contributes much more than 10% of the permanent impairment she now has in her shoulders. However, preceding the injury to her right elbow she was without symptoms and had no apparent impaired function of her upper limbs as a consequence of the degeneration of her shoulders. She was able to do arduous work. The degenerative change in her shoulders at the time of her injury would have at some stage become symptomatic and would have impaired the function of her upper limbs such that she would have required a right shoulder replacement and would have hade restricted movement of her left shoulder, but without her suffering injury it is unknown when that would have occurred. The Appeal Panel considers that her injury should consequently be considered to be the main factor that has caused the permanent impairment she has in her shoulders but, as already indicated, her pre-existing condition is also a significant factor.
In the circumstances, the Appeal Panel considers that the deduction the Medical Assessor ultimately made, notwithstanding his error with respect to explaining why he made a deduction and not explaining the extent of his deduction, is appropriate. That is to say, the Appeal Panel assesses that the deductible proportion under s 323(1) of the 1998 Act is one-third for both the right upper extremity and left upper extremity.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 March 2024 should be confirmed.

[2024] NSWPICMP 548

7 August 2024